Website of Dr. Almon Leroy Way, Jr.





RE: The Constitution & Political Obligation.

"This government, the offspring of our own choice, uninfluenced and unawed, adopted upon full investigation and mature deliberation, completely free in its principles, in the distribu- tion of its powers, uniting security with energy, and containing within itself a provision for its own amendment, has just claim to your confidence and your support. Respect for its authority, compliance with its laws, acquiescence in its measures, are duties enjoined by the fundamental maxims of true liberty. The basis of our political system is the right of the people to make and alter their constitution of government. But the constitution which at any time exists, till changed by an explicit and authenic act of the whole people, is sacredly obligatory upon all. The very idea of the power, and the right of the people to establish government presupposes the duty of every individual to obey the established government."

      George Washington, Farewell Address (1796).

RE: Preservation of Liberty & Effective Government Under the U.S. Constitution.

"Towards the preservation of your government, and the permanency of your present happy state, it is requisite not only that you steadily discounternance irregular oppositions to its acknowledged authority, but also that you resist with care the spirit of innovation upon its principles, however specious the pretexts. One method of assault may be to effect, in the forms of the Constitution, alterations which will impair the energy of the system, and thus to undermine what cannot be directly overthrown. In all the changes to which you may be invited, remember that time and habit are at least as necessary to fix the true character of governments, as of other human institutions--that experience is the surest standard by which to test the real tendency of the existing constitution of a country--that facility in changes upon the credit of mere hypothesis and opinions exposes [a country and its governmental system] to perpetual change, from the endless variety of hypothesis and opinion; and remember, especially, that for the efficient management of your common interests, in a country as extensive as ours, a government of as much vigor as is consistent with the perfect security of liberty is indispensable. Liberty itself will find such a govern- ment, with powers properly distributed and adjusted, its surest guardian. It is, indeed, little else than a name, where the government is too feeble to withstand the enterprise of faction, to confine each member of the society within the limits prescribed by the laws and to maintain all in the secure and tranquil enjoyment of the rights of persons and property."

      George Washington, Farewell Address (1796).

RE: The Enduring Constitution.

"The Constitution of the United States was made not merely for the generation that then existed, but for posterity--unlimited, undefined, endless, perpetual posterity."

      Henry Clay, Speech, U.S. Senate (1850).

RE: The Rationale for Incorporating a System of Checks & Balances into the U.S. Constitution.

"... the great security against a gradual concentration of the ... [legislative, executive, and judicial] powers of government in the same department [organ or branch of government] consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for de- fense must, in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no govern- ment would be necessary. If angels were to govern men, neither external nor internal con- trols on government would be necessary. In framing a government which is to be adminis- tered by men over men, the great difficulty lies in this: you must first enable the govern- ment to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxillary precautions."

      James Madison, Essay Number 51, THE FEDERALIST (1787-1788).

RE: The U.S. Constitution, as Drafted & Proposed by the Federal Constitutional Convention of 1787.

"The Constitution that is submitted, is not free from imperfections, but there are as few radical defects in it as could be expected, considering the heterogeneous mass of which the Convention was composed and the diversity of interests attended to. As a Constitutional door is opened for future amendments and alterations, I think it would be wise in the People to accept what is offered to them and I wish it may be by as great a majority of them as by that of the Convention...."

      George Washington, Letter to Colonel David Humphreys

RE: The U.S. Constitution, as Drafted & Proposed by the Federal Constitutional Convention of 1787.

"As to my sentiments with respect to the merits of the new constitution, I will disclose them without reserve.... It appears to me ... little short of a miracle, that the delegates [to the Federal Constitutional Convention] from so many different States (which States you know are so different from each other), in their manners, circumstances, and prejudices, should unite in forming a system of national government, so little liable to well-founded objections. Nor am I yet such an enthusiastic, partial, or undiscriminating admirer of it, as not to perceive it is tinctured with some real (though not radical) defects. With regard to the two great points (the pivots upon which the whole machine must move) my creed is simply ... [as follows:]

"First. That the general government is not invested with more powers, than are indispensably necessary to perform the functions a good government; and consequently, that no objection ought to be made against the quantity of power delegated to it.

"Secondly. That these powers, (as the appointment of all rulers will for ever arise from, and at short, stated intervals recur to, the free suffrage of the people) are so distributed among the legislative, executive, and judicial branches, into which the general [national, or central] government is arranged, that it can never be in danger of degenerating into a monarchy, an oligarchy, an aristocracy, or any other despotic or oppressive form, so long as there shall remain any virtue in the body of the people.

"It will at least be a recommendation to the proposed constitution, that it is provided with more checks and barriers against the introduction of tyranny, and those of a nature less liable to be surmounted, than any government hitherto instituted among mortals hath possessed. We are not to expect perfection in this world; but mankind, in modern times, have apparently made some progress in the science of government. Shall that, which is now offered to the people of America, be found on experiment less perfect than it can be made, a constitutional door is open for its amelioration."

      George Washington, Letter to Marquis de Lafayette (1788).

RE: The U.S. Constitution--A 19th-Century British View.

"The American Constitution is, as far as I can see, the most wondertful work ever struck off at a given time by the brain and purpose of man."

      William Gladstone, "Kin Beyond the Sea," NORTH AMERICAN
            REVIEW (1868).

RE: The U.S. Constitution--A 19th-Century British View.

"It is probable that no foreigner but an Englishman can fully understand the Constitution of the United States, though even an Englishman is apt to assume it to have been much more of a new political departure than it really was, and to forget to compare it with the English institutions of a century since.

"The Constitution of the United States is a modified version of the British Constitution; but the British Constitution which served as its original was that which was in existence between 1760 and 1787. The modifications introduced were those, and those only, which were suggested by the new circumstances of the American Colonies, now become independent. These circumstances excluded an hereditary king, and virtually excluded an hereditary nobility. When the American Constitution was framed, there was no such sacredness to be expected for it as before 1789 was supposed to attach to all parts of the British Constitution. There was every prospect of political mobility, if not of political disorder. The signal success of the Constitution of the United States in stemming these tendencies is, no doubt, owing in part to the great portion of the British institutions which were preserved in it; but it is also attributable to the sagacity with which the American statesmen filled up the interstices left by the inapplicability of certain of the then existing British institutions to the emancipated colonies. The sagacity stands out in every part of the 'Federalist,' and it may be tracked in every subsequent page of American history."

      Sir Henry James Sumner Maine, POPULAR GOVERNMENT (1885).

RE: The Origins of the U.S. Constitution--A Modern American Conservative View.

"Nominally ... we Americans created our Federal Constitution by deliberate action, within the space of a few months. But in actuality that formal constitution, and our state constitutions, chiefly put down on paper what already existed and was accepted public opinion: beliefs and institutions long established in the colonies, and drawn from centuries of English experience with parliaments, the common law, and and the balancing of orders and interests in a realm. Respect for precedent and prescription governed the minds of the Founders of the Republic. We appealed to the prescriptive liberties of Englishmen, not to liberte, egalite, fraternite; and the philosophical and moral structure of our civil order was rooted in the Christian faith, not in the worship of Reason."

      Russell Kirk, "Prescription, Authority, and Ordered
            Freedom," in Frank S. Meyer (ed.), WHAT IS CON-
            SERVATISM? (Holt, Rinehart & Winston, 1964).

The British Origins of American Government--Thomas Jefferson's View

RE: The U.S. Constitution & the Office of the President--A 19th-Century British View.

"On the face of the Constitution of the United States, the resemblance of the President of the United States to the European King, and especially to the King of Great Britain, is too obvious for mistake. The President has, in various degrees, a number of powers which those who know something of Kingship in its general history recognize at once as peculiarly associated with it and with no other institution. The whole Executive power is vested in him. He is Commander-in-Chief of the Army and Navy. He makes treaties with the advice and consent of the Senate, and with the same advice and consent he appoints Ambassadors, Ministers, Judges, and all high functionaries. He has a qualified veto on legislation. He convenes Congress, when no special time of meeting has been fixed. It is ... tolerably clear that the mental operation through which the framers of the American Constitution passed was this: they took the King of Great Britain, went through his powers, and restrained them whenever they appeared to be excessive or unsuited to the circumstances of the United States. ...the figure they had before them was not a generalized English king nor an abstract Constitutional monarch; it was no anticipation of Queen Victoria, but George III himself whom they took for the model. ...the original of the President of the United States is manifestly a treaty-making king, and a king actively influencing the Executive Govern- ment. ...the framers of the American Constitution take George III's view of the kingly office for granted. They give the whole Executive Government to the President, and they do not permit Ministers to have seats or speech in either branch of the Legislature. They limit his power and theirs, not, however, by any contrivance known to modern English constitutionalism, but by making the office of President terminable at intervals of four years."

"The President, though appointed for four years only, was to be indefinitely ineligible. ...the elaborate machinery of [indirect] election provided in the Constitution was intended to be a reality. Each State was to appoint Electors, and the choice of the President was to be the mature fruit of an independent exercise of judgement by the electoral college. ...there was to be a real election, by a selected body, of a President who might conceivably serve for life...."

      Sir Henry Sumner Maine, POPULAR GOVERNMENT (1885).

RE: Anglo-American Constitutions & the Division of Governmental Power.

"The wisdom of our ancestors for than 300 years has sought the division of power in the [British] Constitution. Crown, Lords, and Commons have been checks and restraints upon one another. The concentration of all power over the daily lives of ordinary men and women in what is called 'the State,' exercised by what is virtually a single-chamber government, is a reactionary step contrary to the whole trend of British history and to the message we have given to the world. The British race [nation, or society] has always abhored arbitrary and absolute government in every form. The great men who founded the American Constitution embodied this separation of authority in the strongest and most durable form. Not only did they divide executive, legislative and judicial functions, but also by instituting a federal system they preserved immense and sovereign rights to local communities, and by all these means they have preserved--often at some inconvenience--a system of law and liberty under which they have thrived and reached the leadership of the world."

      Sir Winston Leonard Spencer Churchill, Election Speech

RE: Anglo-American Constitutions & the Division of Governmental Power

"... as history shows, the division of ruling power has always been for more than 300 years the aim of the British people. The division of power is the keynote of our Parliamentary system and of the constitutions we have spread all over the world. The idea of checks and counter-checks; the resistance to the theory that one man, or group of men, can by sweeping gestures and decisions reduce all the rest of us to subservience; these have always been the war cries of the British nation and the division of power has always been one of the war cries of the British people. And from here the principle was carried to America. The scheme of the American Constitution was framed to prevent any one man, or any one lot, getting arbitrary control of the whole nation. Of course in America there are forty-eight States in the Union, all of which by their power lead their own life in their own way within their wide limits, and to argue it out among themselves, and are defended and protected against anything in the nature of a one man or one caucus autocracy...."

      Sir Winston Leonard Spencer Churchill, Speech, Conservative
            Party Annual Conference (1950).

RE: American Government Under the U.S. Constitution.

"Our Constitution works. Our great republic is a government of laws, not of men."

      Gerald R. Ford, Speech, Washington, DC (1974).

RE: The Supreme Law of the Land in the U.S.A.--The Principle of National Supremacy.

"This Constitution, and the Laws of the United States made, or which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary not withstanding.

"The Senators and Representatives ... [in the U.S. Congress] and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution...."

      Article VI, United States Constitution.

RE: The Tenth Amendment & the Reserved Powers of the States.

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

      Tenth Amendment, U.S. Constitution (Adopted in 1791).

RE: The Scope & Limits of the Power of Congress Under the U.S. Constitution.

"This government is acknowledged by all to be one of enumerated powers. ...it can exercise only the powers granted to it.... That principle is now universally admitted. But the question respecting the extent of the powers actually granted, is perpetually arising, and will probably continue to arise, as long as our [federal] system shall exist.

"If any one proposition could command the universal assent of mankind, we might expect it would be this--that the government of the Union, though limited in its powers, is supreme within its [constitutional] sphere of action. The nation, on those subjects on which it can act, must necessarily bind its component parts. But this question is not left to mere reason; the people have, in express terms, decided it by saying, 'this Constitution, and the laws of the United States, which shall be made in pursuance thereof,' 'shall be the supreme law of the land,' and by requiring that the members of the state legislatures, and the officers of the executive and judicial departments of the states shall take the oath of fidelity to it.

"The government of the United States, then, though limited in its powers, is supreme; and its laws, when made in pursuance of the Constitution, form the supreme law of the land, 'anything in the Constitution or laws of any state to the contrary notwithstanding.'

"The government which has a right to do an act, and has imposed on it the duty of performing that act, must, according to the dictates of reason, be allowed to select the means....

"But the Constitution of the United States has not left the right of Congress to employ the necessary means for the execution of the powers conferred on the government to general reasoning. To its enumeration of powers is added that of making 'all laws which shall be necessary and proper, for carrying into execution the foregoing powers, and all other powers vested by this Constitution, in the government of the United States, or in any department thereof.'

Congress is not empowered by it [the U.S. Constitution] to make all laws, which may have relation to the powers conferred on the government, but such only as may be 'necessary and proper' for carrying them into execution.

Does it [the word 'necessary'] always import an absolute physical necessity, so strong that one thing, to which another may be termed necessary, cannot exist without the other? We think it does not.... To employ the means necessary to an end, is generally understood as employing any means calculated to produce the end, and not as being confined to those single means, without which the end would be entirely unattainable.

We admit, as all must admit, that the powers of the government are limited, and that its limits are not to be transcended. But we think the sound construction [interpretation] of the Constitution must allow to the national legislature that discretion, with respect to the means by which the powers it confers are to be carried into execution, which will enable the body to perform the high duties assigned to it, in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are constitutional."

      John Marshall, Majority Opinion, MCCULLOCH V. MARYLAND,
           U.S. Supreme Court (1819).

RE: First Amendment Limitations on Governmental Power.

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

      First Amendment, U.S. Constitution (Adopted in 1791).

RE: The First Amendment & the "Clear & Present Danger" Principle--The Power of Congress to Limit Speech & The Press.

"...the character of every act depends upon the circumstances in which it is done. The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force. The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree. When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right."

      Oliver Wendell Holmes, Majority Opinion, SCHENCK V. UNITED
            STATES, U.S. Supreme Court (1919).

RE: The First Amendment & the "Clear & Present Danger" Principle--The Power of the U.S. Government to Protect Itself Against Sedition & Subversion.

"The purpose of the statute [the Smith Act of 1940] is to protect existing Government, not from change by peaceable, lawful and constitutional means, but from change by violence, revolution and terrorism. That it is within the power of Congress to protect the Government of the United States from armed rebellion is a proposition which requires little discussion. Whatever theoretical merit there may be to the argument that there is a 'right' to rebellion against dictatorial governments is without force where the existing structure of the govern- ment provides for peaceful and orderly change. We reject any principle of governmental helplessness in the face of preparation for revolution, which principle, carried to its logical conclusion, must lead to anarchy. No one could conceive that it is not within the power of Congress to prohibit acts intended to overthrow the Government by force and violence.

"Overthrow of the Government by force and violence is certainly a substantial enough interest for Government to limit speech. Indeed, this is the ultimate value of any society, for if a society cannot protect its very structure from armed internal attack, it must follow that no subordinate value can be protected. If ... this interest may be protected, the literal problem ... is what has been meant by the use of the phrase 'clear and present danger' of the utterances bringing about the evil within the power of Congress to punish.

"Obviously the words ['clear and present danger'] cannot mean that before the Govern- ment may act, it must wait until the putsch is about to be executed, the plans have been laid and the signal is awaited. If Government is aware that a group aiming at its overthrow is attempting to indoctrinate its members and commit them to a course whereby they will strike when the leaders feel the circumstances permit, action by the Government is required.

"We hold that the Smith Act does not inherently, or as construed or applied in the instant case, violate the First Amendment and other provisions of the Bill of Rights. ...Petitioners intended to overthrow the Government of the United States as speedily as the circum- stances would permit. Their conspiracy [during the Cold War] to organize the Communist Party and to teach and advocate the overthrow of the Government of the United States by force and violence created a 'clear and present danger' of an attempt to overthrow the Government by force and violence. They were properly and constitutionally convicted for violation of the Smith Act."

      Fred M. Vinson, Majority Opinion, DENNIS V. UNITED STATES,
           U.S. Supreme Court (1951).

RE: The First Amendment & Government Restrictions on Obscenity.

"... this Court has always assumed that obscenity is not protected by freedom of speech and press....

"... the unconditional phrasing of the First Amendment was not intended to protect every utterance.... At the time of the adoption of the First Amendment, obscenity law was not as fully developed as libel law, but there is sufficiently contemporaneous evidence to show that obscenity, too, was outside the protection intended for speech and press....

All ideas having even the slightest redeeming social importance--unorthodox ideas, controversial ideas, even ideas hateful to the prevailing climate of opinion--have the full protection of the guarantees, unless excludable because they encroach upon the limited area of more important interests. But implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance. This rejection for that reason is mirrored in the universal judgement that obscenity should be restrained, reflected in the international agreement of over 50 nations, in the obscenity laws of all the 48 States, and in the 20 obscenity statutes enacted by the Congress from 1842 to 1956.... We hold that obscenity is not within the area of constitutionally protected speech and press."

      William J. Brennan, Jr., Majority Opinion, ROTH V. UNITED
            STATES & ALBERTS V. CALIFORNIA, U.S. Supreme Court


Return to Top of Page


Go to Page Two, Section A