A MODELCONSTITUTIONFOR AUNITED REPUBLICSOF AMERICA

REXFORD GUY TUG WELL

CENTER FOR THE STUDY OF DEMOCRATIC INSTITUTIONS* * * *

P.O. Box 4068, SANTA BARBARA, CALIFORNIA

JAMES E . FREEL & ASSOCIATES577 COLLEGE AVENUE, PALO ALTO, CALIFORNIA

Developed for the college student by James E . Freel & Associatesfrom materials published in THE CENTER MAGAZINE. Sponsored bythe academic program of the Center for the Study of DemocraticInstitutions . All rights are held by the Fund for the Republic, Inc .,P.O. Box 4068, Santa Barbara, Calif . 93103 .

First printing, December, 1970 . Copyright ©1970, James E . Freel & Associates.Permission to reprint any material contained herein must be obtained from theFund for the Republic, Inc . and James E . Freel & Associates.

JAMES E. FREEL & ASSOCIATES, 577 College Avenue, Palo Alto, California 94306 .

CONTENTS

Prefaceby Harry S. Ashmore

Introduction to a Constitution for

iv

a United Republics of Americaby Rexford G. Tugwell

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THE MODEL CONSTITUTION 42

Index to the Constitution 91

Drafting a Model Constitution(an interview with RGT)

97

The Declaration of Independence(with prefatory note by RGT)

127

The Articles of Confederation(with prefatory note by RGT)

131

The Constitution of 1787(with prefatory note by RGT)

140

PREFACE

After Rexford G . Tugwell's "model constitution" waspublished in The Center Magazine in September,1970, mail poured into the Center for the Study ofDemocratic Institutions at a record rate . In less thantwo weeks more than 200 letters had been receivedfrom teachers and students inquiring about availa-bility of the Tugwell materials . In response to con-tinuing evidence that the model constitution and thesupporting documents can fill a teaching need in

iv courses in government, political science, social sci-ence and law, the Center is making this volume avail-able as the first in a series of college readers to bepublished in collaboration with James E . Freel &Associates .

It was not surprising that Tugwell's monumentaleffort should thus be greeted as a pedagogical tool .Chairman Robert M. Hutchins of the Center hasrecalled that the idea of concentrating the institution'sefforts on constitutional issues goes back to its found-ing more than a decade ago . Some of the most dis-tinguished contemporary teachers participated in theinitial planning, among them Eric Goldman, RobertGordis, Clark Kerr, Jacques Maritain, John CourtneyMurray, Reinhold Niebuhr, I . I. Rabi, Robert Red-field, and Clinton Rossiter.

"In these conferences," Hutchins wrote, "the Con-stitution of the United States was a recurring theme.Although some consultants thought the Constitution

could be interpreted to meet all the new needs itmight be expected to serve, others were not preparedto put their full confidence in a Court that had often,it seemed to them, failed to find in the Constitutionways of dealing with issues the founding fathers couldnot have foreseen . The consultants did not attemptto settle the question whether the United States needsa new constitution . They did agree that the effort toframe one would be a worthwhile undertaking for theCenter, although nobody thought for a moment thatsuch a draft would be adopted by the people. Theproject was begun as soon as the right man appearedto undertake it."

In March, 1932, Rexford Guy Tugwell, then pro-fessor of economics at Columbia University, acceptedan invitation to join Raymond Moley, professor ofgovernment at Columbia's Barnard College, andAdolf A. Berle, Jr. of the Columbia Law School in"putting together some material" for the Governorof New York. The material turned out to be the stuffof which Franklin Delano Roosevelt's first campaignfor the presidency was made - and by extension toprovide the theoretical base for a watershed periodof expansion and change in the American system ofgovernment .

From that time forward Tugwell was fated to be acommuter between academia and the world of politi-cal affairs. He went on with Roosevelt to serve asUnder-Secretary of Agriculture in the time when thatdepartment played a key role in the most rigoroussocial and economic experimentation the country hasknown. In 1938 he left Washington to put his theoriesto an urban test as chairman and head of the planningdepartment of the New York City Planning Commis-sion. In 1942 Roosevelt called him back to federalservice in Puerto Rico as a colonial governor bent on

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preparing the island for home rule. As a member ofthe Caribbean Commission he witnessed the end ofthe imperial era as it came about in the tropical out-posts of Britain, France, and the Netherlands .

But the campus was always in the background, andhe returned to it when he could, adding scholarly pur-suits that now took him outside his old economic dis-cipline . Briefly he was chancellor of the University ofPuerto Rico ; the London School of Economics listedhim as visiting professor of political science ; and atthe University of Chicago from 1946 to 1952 he wasdirector of a planning program which served asinterdisciplinary incubator for many of the mostnotable contemporary planners . He has been givenhigh recognition as an historian by award of the Ban-croft Prize in 1968 .

By the time he joined the Center for the Study ofVi Democratic Institutions in 1964 Tugwell had de-

cided to embark upon a systematic effort to distillthe essence from his half century of theoretical studyand government practice . His point of departure wasthe conviction "that the institutions we now possesswere hammered out and struggled over by our prede-cessors as well as ourselves ; that the customs andloyalties we still honor and try to preserve, and therights we enjoy, were won for us in battles nowalmost forgotten ; that all of these were created forus as much as by us . . . I thought some search on mypart might turn up some causes of the effects thatnow seemed so formidable and might even be leadingto disasters of vast magnitude." He agreed withChairman Hutchins and the Center Fellows that sucha summing up was compatible with the effort todevise a model constitution intended to fit the con-ditions for existence of the American republic in thelast third of the Twentieth Century .

The main lines of Tugwell's political theory go backto his graduate studies at the University of Pennsyl-vania's Wharton School. He emerged from that train-ing ground for business executives a dedicated pro-gressive, but he had apparently brought the control-ling impulse with him when he came . Such economicinnovators as Simon Nelson Patten of the Whartonfaculty introduced him to the institutionalist doctrineshe would spend his life refining and defending, but hebelieves now that as far back as his high-school daysin Buffalo he had begun to sense "the developingdichotomy between science and society ." In theautobiographical sketch of his boyhood, The Lightof Other Days, he defines the conviction imparted bythis discovery :

"It seems to me to have been this : that those whobelieved in free enterprise and atomized governmentmust use as operative mechanisms deliberate divisive-

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ness, competition, the pursuit of self-interest, theexploitation of other individuals, and the privateappropriation of natural materials and forces. Thesewere, of course, a majority, and, being a majority,they prevented the politico-economic expression ofthe opposite - that is to say, cooperation, integra-tion, loyalty to a whole, and guidance by a conceptof public rather than private interest ."

Thus Tugwell was early convinced that the laissez-faire doctrines bequeathed by the American foundingfathers had become inoperable in the transition fromthe agrarian society of the eighteenth century to thepredominantly urban culture in which he now identi-fied the locus of power. His first major work wasentitled Industry's Coming of Age, and when hejoined Roosevelt in 1932 he had just sent to pressThe Industrial Discipline and the Governmental Arts .

Here he parted company with the trust-busters and

money theorists who claimed the progressive cachet,particularly those on the Democratic side . The solu-tion to the country's cyclical economic ills, he in-sisted, lay not in atomization through induced com-petition and the curbing of malefactors of greatwealth, but in government action to produce a con-cert of interests ; the government should not abhorindustrial and commercial combines because theymight be monopolistic, but should encourage themunder controls that would guarantee that the publicshared fully in the benefits of increased efficiency .

In the course of his career Tugwell approachedthe practical problems of government as a collectivist,and he made no effort to gloss over the implicationsof his stance when enemies of the New Deal soughtto give it Marxist overtones in a fashion that com-pounded his personal anguish with a good deal of

viii professional damage . Bernard Sternsher in RexfordTugwell and the New Deal notes : "The professors . . .were the targets of scorn and calumny from the op-position press, and Rexford Guy Tugwell was thebull's-eye of the lot . Tugwell's ideas on `plannedcapitalism' would have been the subject of dispute inany case . They became especially controversial when,in June, 1933, the press began a deliberate, concertedcampaign to ruin his reputation in order to defeat apure food and drug proposal - the so-called TugwellBill ."

After plowing through this voluminous catalog ofcalumny Sternsher concluded that it was one-hundred-per-cent travesty - that in fact Tugwell had con-sistently and specifically rejected the enforced regi-mentation of doctrinaire socialism, and had based allhis proposals for change on the liberal reformistposition he affirmed when he opened his 1933 workon The Industrial Discipline with this quotation from

Francis Amasa Walker : "Happy is that people, andproud may they be, who can enlarge their franchisesand perfect their political forms without bloodshedor threat of violence, the long debate of reason re-sulting in the glad consent of all ."

None of this made any perceptible dent in Tug-well's conviction that traditional representative de-mocracy not only is compatible with governmentplanning, but, indeed, may not survive without it . Hecontends that the doctrine of competition whichafflicts the economic sector has produced equallybaleful results in American government, where it ismanifest as constitutional checks and balances. Theresult has been to divide authority and responsibilityso as to stalemate creative action and preclude ac-countability; to promote sectional and other specialinterests at the expense of national concerns ; and ingeneral to rob the government of the flexibility re-quired to anticipate and meet the legitimate demandsof the people. A concert of interests is needed here,too, he insists, and he entertains no doubt that it canbe had without jeopardizing the individual rights ofcitizens .

Just as it was at the Wharton School half a centuryago, Tugwell's attention continues to be fixed onlyincidentally on the weakness, the ideological bent,and the occasional perfidy of those who occupy theplaces of power ; his enduring concern is with theinstitutions, the systems, and the processes that shapeand limit their actions. This, of course, is the basisof his model constitution, which appears in this volumein the draft he labeled Version XXXVII . The progres-sion of the work reflects not only his own prodigiousscholarship, but the continuing suggestions and criti-cisms of his Fellows and Associates at the Center . Inaddition, dozens of political scientists and constitu-

ix

tional experts have addressed themselves to the vari-ous drafts over the years, and a somewhat larger num-ber of scholars and generalists, as they passed throughthe Center, have had a go at the fundamentals in oneway or another .

The prescriptions and proscriptions of a constitu-tion possibly adequate for a modern democratic re-public of continental size and global responsibilitydo not, of course, spring full-blown from an inter-mittent dialogue. In Santa Barbara, as in Philadelphianearly two centuries ago, the underlying constitu-tional theory has been developed in a series of ex-tended essays. Taking tone and style from the Feder-alist Papers, the documents deal with such constitu-tional fundamentals as : The Separation of Powers ;and, Parts and Whole : States and Nation . These aretoo voluminous to be included here ; the issues they

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deal with are summarized in Tugwell's introductoryessay.

The Tugwell model constitution has stirred up con-siderable controversy since its publication . To some thesuggestion that the document brought forth in Phila-delphia in 1789 may have become out-dated smacksof heresy. Felix Belair observed in the New YorkTimes that many conservatives would look upon theTugwell exercise as akin to that of redecorating acathedral . And the Left radicals, of course, reject anyconcept of constitutional reform as a diversionaryeffort to coopt the revolutionary drive for systemicchange.

Some of the young crusaders who come to theCenter's table fresh from their own abrasive con-frontations have shown disdain for a theoretical exer-cise that ascribes relevance to the past and assumescontinuity into the future . Tugwell applauds the moralpassion of his critics, makes no claim of his own to

revelation, and agrees that his proposals may be toolittle and too late . Sometimes the unbridled utopian-ism of the current mode causes him to snort andthrow up his hands, but he does not denigrate thecomplaints of the outraged young. Their battle cry,after all, is an echo of his description of his ownschooling: "The truth was that the education of thetexts no longer explained the world we would findwhen we graduated. They did little more than elabo-rate and defend the myths which were growingfurther and further away from reality ."

No prudent man of Tugwell's experience wouldcontend that constitutional revision has much practi-cal chance under any circumstances ; in the extraor-dinary condition that prevails he must concede thatprinciples of governance rooted in a concept oforderly change may well be fated to give way beforethe demands of those who profess to have caught

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sight of the apocalypse . If this turns out to be thecase, he will have to plead guilty to wasting his latteryears. If it doesn't, Rexford Guy Tugwell may haveperformed the most enduring of his public servicesby mounting an incomparably informed argumentthat the existing Constitution no longer works inpractice. At the least he has redeemed his_ license asa pedagogue by stating his case in a form that dem-onstrates, point by point, why he has concluded thisis so - and suggests, point by point, the directionsin which we must move if we are to make our na-tional charter again consonant with the times .

HARRY S. ASHMORE

President

Center for the Study of Democratic InstitutionsSanta Barbara, CaliforniaNovember, 1970

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INTRODUCTIONTO A CONSTITUTIONFOR AUNITED REPUBLICSOF AMERICAREXFORD G. TUGWELL

There were several reasons for beginning a study ofthe Constitution at the Center for the Study ofDemocratic Institutions, and, finally, for draftingsuccessive models to focus more sharply the suggestedalternatives for revision.

The first of these was that a precious symbol hadbecome largely a myth and myths are easily exposed .The deep feeling Americans have always had for theConstitution ought not to be betrayed. It was nolonger often read but was fiercely defended . Whatmany people thought was there, was not there at all ;it was in opinions of the Supreme Court, and theCourt occasionally reversed itself, thus making whatis constitutional subject to change. This seemedlikely to destroy the usefulness of the document .

Sooner or later the magisterial attitude of theCourt would be such that basic law would lose theauthority it ought to have ; and, long before that, it

would have been discovered that actually there wasno basic law standing above all other laws, impervi-ous to attack, and impervious to alteration except bythe people themselves .

A constitution must be the expression of theprinciples a democracy relies on . It must definecitizens' relations with each other and with their col-lective associations . It must state clearly what theyhave agreed they can and cannot do . In this it has thesame purpose as the Ten Commandments. For in-stance, men are told that they should not steal . TheConstitution goes on to say that if they do steal theymust be punished, but that their guilt must be fairlyproven and the penalty must be neither cruel norunusual. So with all the duties and rights .

But a constitution should go further . It shouldestablish the devices needed for living together - forself-government . Prohibiting sins is much simpler

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than saying how they may be avoided . It is farsimpler than establishing such just relationships thatthere will be no excuse for sinners. The rules forgetting along with one another are difficult enoughto work out in primitive conditions ; the, difficultybecomes infinitely worse as population grows and asspaces contract . There is more temptation to breakrules and less fear that there will be penalty . It iseasier to escape penalties by fading into a crowd .

The framers, meeting in Philadelphia in thesummer of 1787, were there because neither the TenCommandments nor the going rules for social be-havior were any longer adequate . It was not enoughto have town meetings and local constables or evento have states where delegates were sent to make lawsand where courts were set up to judge whether thelaws had been obeyed . As a people beginning toregard themselves as a nation, they would not sur-

vive, much less prosper, unless they formed, as itwas put in the delegates' instructions, "a more per-fect union."

Everyone could see that, but there were many whoresented the necessity. The independent Americandid not really want union. He wanted to find a way ofgetting the benefits of union without any of the com-pulsions and disciplines it involved . But this wasprecisely what had been tried under the Articles ofConfederation. It had been in effect for six years andit was a complete failure . Even the most reluctantpoliticians were compelled to admit that closer bondswere necessary if the nation was to be preserved .They must pay dues and accept duties if the stateswere not to become a group of small governments,strung along the seaboard, vulnerable to hostileforces on every border, and with no common means

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of defense .The problem was to keep the independence so

much valued but to give up enough of it to preventthe nation's destruction from outside by Britain,France, or Spain, all plainly covetous of Americanterritory. Then there was the threat from inside bythose who would not recognize their obligations toothers and continuously sought to give little and getmuch. Unless those obligations were agreed to by all,and enforced by agencies established by all, nation-hood would never become actual ; and as separatestates they might not even survive .

IIIt was one of the oldest of human problems -topersuade or compel those who would take advantage

of others to cooperate and contribute rather thanundercut and withhold. This had now become aproblem not only of individuals but of the statesgradually shaped out of the British colonies overmore than one hundred and fifty years . After thesuccessful rebellion they had agreed to support acentral government but each had been altogether toowilling to let others assume the essential obligations .Especially they would not pay their agreed contribu-tions and would not recognize common rules forcommerce. The old government, set up by theArticles of Confederation after the rebellion, wasdead when the meeting opened in Philadelphia .

During the summer of discussions the representa-tives of most states gave up as little as they could toget the protection they needed . They insisted onkeeping most of their sovereignty and delegated tothe central government enough powers, as they

15

thought, to collect taxes, to make common rulesabout trade, to fix a common currency, and to pro-vide for a common defense. For these limited pur-poses they had to establish a government, and, how-ever reluctantly, this was what they did . It was notthe first time a people had found themselves in sucha situation ; but it was the first time a people haddone it for themselves, trying to give up as few oftheir individual liberties and their states' rights aspossible, but providing for the essentials of union .

When it is said that the delegates were reluctant itmust be understood that there were some who re-garded the need for a national government verydifferently. Washington and Hamilton, together witha dozen others, had no strong state loyalties, or, ifthey did, were willing to see the nation put first .Hamilton would have liked a monarchy and said so ;but his was not a voice much listened to. Washington

and the lawyers who had studied political philosophywere attracted to the federal idea . They believed thatdual sovereignty was practical and certainly it offereda compromise between the extreme positions of thestates' righters and the nationalists .

This was the outcome : the states were principalswho delegated certain powers to a central govern-ment-the ones necessary to hold the nation togetherwithout too much constriction .

Most of the delegates felt strongly that supremeauthority must not be allowed to lodge anywhere inthe central government. If it did, they would havecreated another monarchy or perhaps an autocracy,and they had only recently escaped from beingcolonies in an empire . It was for this reason that theyaccepted the suggestions of the political philosophersthey knew about - Montesquieu and Locke, most

16 importantly - and provided for three separatebranches, each with stated powers, but each depen-dent on the others for the completion of whatever itundertook. There was a legislature to make laws ; butthey might either be vetoed by the President orjudged by the Court to be discordant with the Con-stitution. The President was to see that the laws werefaithfully executed but he could do only what theCongress would pay for ; moreover, even his ap-pointments and the treaties he negotiated with foreignnations had to be agreed to by the Senate . TheSupreme Court could say that laws or executive ac-tions were unconstitutional ; but the Justices wereappointed by the President and had to be confirmedby the Senate; and the Congress could determine itsjurisdiction .

All three branches must, in effect, agree beforeanything important could be done ; if any balked, noaction could be taken .

These provisions, however, only provided thenational government's internal structure and regu-lated its own behavior . There was a much moreserious limitation. Being sovereign, the states re-tained all the powers not specifically granted to thefederal government . What was yielded was theresponsibility for defense, the control of interstatecommerce, and, according to strict constructionists,little else . The police powers and the rules for allindividual and associational relationships were keptby the states - and this was meant literally . To thenationalists this seemed an impossible limitation. Thegranted powers were very few and obviously insuffi-cient for the purposes stated in the preamble . Theywere called loose constructionists because they be-lieved this . They took the view that powers grantedwere expansible at need; what 'the government wasrequired to do as a nation it must have the impliedpower to do . For instance, roads and canals crossingstate boundaries, as well as other public works, mustbe built and therefore could be built.

The framers had been divided on this issue ofstrict or loose construction from the very first ; andsome delegates had left the convention when theyconcluded that the states' powers were likely to belessened. This was the issue most debated at theratifying conventions during the next two years . Mostof these meetings produced very close votes and itwas evident that, although the nationalists prevailed,there was formidable dissent. States' rights were stillmore important to this large minority than the ad-vantages of union . The nation began its life thusdivided .

Luckily Washington, the first President, was awise and moderate man and also the most honoredand trusted leader in the nation . It was he, more

t7

18

than any other, who set the government on its course,held it together, and showed that if union requiredsome sacrifices they were not unbearable . The Wash-ington style persists even now .

Nevertheless, the issue of states' rights as againstnational necessities divided the country all during itsearly years. Adams, succeeding Washington, was amore determined and much less persuasive nation-alist ; and Jefferson, who had organized those whohad local views, defeated him when he ran for re-election. Jefferson meant to make union a mere con-venience for the states ; he disagreed with Washingtonso sharply that he left the cabinet and organized anopposition that became the first political party .

All the same, when Jefferson became President hefound that he had to act much as Washington had .The nation's requirements had to come first . Hissuccessors, Madison and Monroe, found the samediscrepancy between their preconceptions and therealities of office .

The proponents of states' rights persisted, however,and it was the issue that precipitated the Civil Warhalf a century later . Even then, although the forcesof union won, many people's minds were not changed .Long after the war, state politicians were opposingfederal encroachments on their powers and appealingto Americans with the attractive slogans of "inde-pendence, monstrous bureaucracy, and local control ."It was geography and technology that defeated themfinally . Neither commerce nor its facilities respectedstate lines. Gradually the union assumed more re-sponsibilities and the states were subordinated ; butthere were compromises all along and only reluctantconsent. Often the federal government raised themoney and the states spent it ; but the central con-trols inevitably grew stronger .

The Court contributed by expanding the meaningof the commerce clause of the Constitution andlimiting the states' treatment of individuals by in-terpreting the freedoms enumerated in the Bill ofRights. Eventually the Congress approved immenseprograms of public works, established a regulatorysystem for industries affected with a public interest,and set up a welfare system intended to be a uni-versal protection from want . The President, with aduty to execute the laws, began to initiate them and,when he could, coerced a hesitant Congress to passthem. He also expanded his powers as Commander-in-Chief until he used the armed forces almostwherever and whenever he felt it necessary . Especiallyin emergencies of all sorts - and they became morenumerous and more dangerous as time passed -only the President could act promptly ; and since hewas expected to act he did so .

So it was that all three branches escaped the con-fines of the Constitution even if liberally interpreted .The federal government, as a whole, escaped as wellfrom the constriction of specified powers . The basiclaw, first made for the people, and ratified by them,was rewritten again and again by extension, by inter-pretation, and, in emergency, by simply ignoring itslimitations. It no longer described the governmentthat really existed and no longer defined the people'srelationships among each other . The Constitution, re-ferred to so fondly by earnest patriots, no longerreally existed . It was by way of becoming somethingonly to be understood by studying opinions of theSupreme Court .

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IIIWas' this good? Obviously the framers had not in-tended their Constitution to be thus elasticized.

They had meant it, just as it stood, to be a com-mon rule and a prescription for government . It wasthat no longer. True, it had been amended ; andamendment was the legitimate way to make changes .All the other ways might, as lawyers argued, "bringthe Constitution up to date," and might "make itrelevant to the present," but this did not respect theconstitutional process, recognizing its difference fromstatutory law. It actually degraded it, because thechanges were made by an appointed body in nosense representative of the people ; and a constitutionis not legitimate unless it is a people's document-

20 not a statute, not a court opinion, but a conclusionreached by the people and ratified by them . Other-wise it was a mockery to begin the document with thewords : "We the people . . . ."

None of the actual amendments had affected thepowers of Congress, President, or Court ; and nonehad modified the sovereignty of the states ; and thesewere the two most persistent national issues . Boththe distribution of powers and federal relationshipshad been so changed as to be unrecognizable ; and ithad been done mostly by processes remote frompopular participation . There were those who de-fended these processes vehemently as a practical wayof making changes without seeming to - that is, bynot disturbing loyalties. If the meaning of constitu-tional phrases had changed, this, in their view, wasall right . The Supreme Court had made the Con-stitution something it had not been originally, but theSupreme Court could be substituted for the document

and its aura of magisterial perfection would servethe same purpose .

This comes close to saying that no constitution isneeded. But those who support this kind of changewould be the last to say that the nation could getalong very well without one . In many crises andthrough many divisive periods the constitutional idea- the idea of a law above all laws - has served toremind citizens of their duties and to hold govern-ment to its prescribed course. The more it has beenattenuated the less this has been true ; but the sourceof the weakness is seldom identified. It is that a con-stitution no longer a legitimate representation of thepeople's will cannot create loyalty to institutions .

There were those who thought this dissolutiondangerous - because the people had not acted -and likely to lead to disrespect when the Court'schanges were challenged as they were sure to be ;

21

or when it became common knowledge that manydecisions were made by a five-to-four majority -thus exposing the fallacy of judicial infallibility ; or,again, when it was recalled that Presidents franklyused their appointive power to select justices whoshared their political views . The Court was not abovepolitics ; it was not really magisterial . It was not aconstitution-making body .

No, revision, approved by the people, was better ;it was even essential ; but the framers had made itextremely difficult. It had been wholly entrusted tolegislatures, that is to say, it was to be initiated by atwo-thirds vote of both houses and had to be ratifiedby three-quarters of the states' legislatures . The otherbranches were not ipvolved ; and the people were leftout. It would be unlikely that legislatures would everbe reformed in such a process, and, in fact, none everhas been. Considering that the legislatures are the

22

branch most in need of drastic overhaul, this is nowseen as a mistake with enormous consequences . Itought to be the first change made in a reconsideredconstitution .

Escape from the confines of an essentially unalter-able constitution was bound to weaken, if it did notdestroy, its most essential use : the furnishing of alex supra leges, a law above laws . If it was meant tobe something representing the people's will, express-ing their deepest convictions in their consideringmoments, it was that no longer . It was interpreted toallow the establishing, and the enormous growth, ofmany presently existing institutions without any con-stitutional authorizations whatever - such as themassive regulatory system . There are many publicactivities not contemplated in any of the Constitu-tion's clauses - education, social insurance, and thesystem of national highways, to name a few . Politicalparties were not only not spoken of but would havebeen forbidden by the framers if they had foreseentheir development . And no planning was providedfor, apparently on the supposition that all the plan-ning necessary would be done by the House of Repre-sentatives in the course of making appropriations .This might have been reasonable in 1787 . It was notreasonable after industrialization set in .

To consider another complete omission, the originof national administrations now is in political ac-tivities not authorized in the Constitution; and theyoperate through institutions not recognized in any ofits clauses. The authority for them has been extrapo-lated, sometimes without any constitutional reference .This, like other extensions, is elaborately justified bylegal theorists who speak of a "living constitution ."What they mean is that the Constitution can be madeto mean anything thought necessary to getting on

with public and private business . But what then be-comes of the law above other laws? It vanishes, ofcourse, except that the Supreme Court takes its place- nine justices, appointed by Presidents, who fre-quently divide five-to-four and only act on adversarycauses .

This decline of trust in constitutionality can, ofcourse, only be remedied by reconstituting the pro-cesses of amendment . It is quite relevant, therefore,to consider what amendments would follow if itshould be decided to study the whole matter againas was done in 1787, considering the suggestions ofmany thoughtful individuals, causing public discus-sion, asking the electorate to decide what is mostessential for present purposes, not those of the eigh-teenth century, and finally making for themselves adocument of reference, embodying the principles andprocedures they most deeply approve .

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IVSome hidden characteristics of the American Consti-tution appeared after it had become the basic law .Perhaps hidden is the wrong word; but at any rate,they were not at first apparent, and even now thereis no general agreement about their meaning. Thismay be because they were not clearly formulated inthe minds of the framers but rather emerged fromthe practices over the years . It may be that theframers either did not know, or did not approve, thebehavior of common people and meant to put the"better citizens" in position to control the nation's in-stitutions. Certainly democracy only gradually ap-proached reality. Jefferson had practically to stage arevolution to make the first approaches ; and themovement did not become a massive one until

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Jackson, in 1833, moved into Washington with hisrabble of frontiersmen .

The defenders of the Constitution, writing in theFederalist Papers, and arguing for ratification, madea careful distinction between republics and democra-cies. There had been no intention, they said, of con-signing power to a mob. This, indeed, was greatly tobe feared. It was also to be prevented-would beprevented if the proposed draft should be agreed to .It was accepted ; but by no means unanimously . Ifthe Constitution was meant for a republic and thenation gradually became a democracy, a constitutionfor the one could hardly be expected to serve for theother. It would not necessarily be wholly inappropri-ate but it would not be wholly relevant either, even ifthe revolutionary social and economic changes of thenineteenth century had not taken place .

Recall that the Bill of Rights was a series ofamendments appended to the original draft to assurethe support of those who felt that liberties neededmore recognition . The framers had felt that thechecks and balances they had devised were sufficientprotection against a potentially oppressive govern-ment; but there were many who did not think so andwanted to make sure. This was the first sign thatdemocracy was a powerful force and likely to spread .The counterpoised branches - executive, legislative,and judicial - each able to prevent the others frombecoming arbitrary, made a government unable toact without agreement of all . Add to this the list ofactions they were prohibited from doing even if theyshould agree, and it became a government destinedto be slow, constricted in action, and much given tointernal controversy. These characteristics wereeither not anticipated or were not thought to bedangerous. At times when the protection of individual

rights became less important than national interestsand general welfare, they caused near paralysis . This,it can be argued, is because the framers believed inleaving much to experience and to the processes ofamendment. Brevity left much unsaid that could befilled in when necessary . Necessity would dictate whatwould be added ; and long as the list of may-nots andshall-nots seemed at the time, there was fundamentaldependence on kinds of social behavior not men-tioned at all. People were expected to behave withreasonable regard for each other . So with thebranches of the tripartite government; each was ex-pected to do its duties and not impinge on the pre-rogatives of the others .

Part of the reason that the intentions of the framersare not always recognized, or at least not seen clearlyenough to be agreed on, is that, since they are notstated explicitly and can only be inferred, there has

25been no serious effort to embody them in statutes . Theyhave to make themselves understood, gain recognition,in spite of activities allowed because, although theyserve some interest, their weakening effect on theemerging structure is not realized ; but if the Constitu-tion is ambiguous or silent in several importantmatters the principles or intentions are there . Thenation depends on them for its very life .

If this seems obscure, it is because such character-istics materialize slowly out of a welter ; there areproliferations, starts and stops, hesitations and set-backs. Still, there does emerge, after all, the conceptthat a people living together persistently refuse, whenthey have an opportunity, to allow any such accumu-lation of power as would permit any interest, muchless any individual, to become really authoritarian .

It seems at first a contradiction to speak of dis-persed power; but that is what federalism attempts.

It is somewhat easier to conceive of shared power ;but there remains enough difficulty about it so thateach sharer can be preoccupied with trying to in-crease his part and to decrease that of others, notrealizing that all must share fairly if those of anyare to be secure .

This has happened. Again it is traceable to thecontemporary belief in competition . The theory ranthat, given equal opportunity, the best man or thebest institution would achieve the place his or itstalents and efficiency warranted ; and so freedom forachievement should not be cut off . The operativeword in this formula is "opportunity ." Unless itactually exists, competition can never be fair . Sayingthis implies that any limitation on its fairness weakensthe principle. In the agrarian society of the eighteenthcentury such weakenings were not important . Every-

26 one could have a homestead or a shop, and littlecapital was needed. It soon became very different asindustrialism appeared . The rubric, however, stoodunchanged as a public intention even though equalityof opportunity had disappeared . The Constitutionallowed it. The framers may well have meant it so .

There were differences between the nationalistswho dominated the constitutional convention and theminority who objected so strenuously to strong orpervasive government . Washington, Hamilton, andthose associated with them were suspected by suchpolitical leaders as Henry, from Virginia, of plottingto set up a new monarchy. Patterson from NewJersey, and Yates from New York, as well as severalothers were certain that the . smaller states werethreatened . Randolph of Virginia, after taking aprominent part in all the convention's proceedings,finally refused to sign. He, too, thought the centralgovernment would be too powerful. Yates had long

since departed to agitate at home against the accep-tance of anything done at Philadelphia .

As things stood when the work was done it wasnecessary for the branches to agree ; but the ways ofreaching agreement were nominal . Proceeding towhatever must be done was made extremely difficult .It can only be concluded that what was expected tobe done was minimal . And it is true that beyonddefense there was not much. The rest was prohibi-tion of doing, not duty to do. Commerce among thestates could not be interfered with ; the states couldnot tax exports or imports ; they could not issuemoney ; they could not abridge the privileges or im-munities of citizens ; and the states must not questioneach others' public acts and records .

It was left to custom or common law that ways ofreaching agreement on action would be found. Thatthis would prove to be insufficient was not suspected .

27Lurking behind everything, however, there was theexpectation of majority rule . What was wanted by"the people," in the persons of "the people's repre-sentatives," would be achieved in this way. It issignificant that no other finality has been found . This,of course, means that minorities must give way tomajorities if all do not want the same thing ; and theyseldom do want the same thing .

Experience has shown, of course, that majoritiescan be wrong. This is not a slight danger ; and thereis also the probability that the minority may go onprotesting that this is so. They may agitate, and mayeventually prevail. That is part of the scheme. Butthere is a rule about this not stated in the Constitu-tion but clearly implied : the minority may not -must not even try - to prevail by force . That woulddestroy the principle of shared powers by destroyingentirely the methodology of their operation . Force

can only lead to the exclusion of some by others andto their suppression if they persist .

There is more to this, again, than at first appears.When minority and minority dissent are referred to,the picture called up is one of vehement protest,violent refusal, marching, riots . What is moreserious is subversion for the benefit of special in-terests whose apologists are so indefatigable . Also,the delicately balanced machinery used for comingto majority agreement is extremely vulnerable tovarious kinds of interruption, diversion, and per-suasion. That machinery provided in the Constitu-tion was not well conceived, and it did not provecapable of becoming more so as population expandedand vast spaces were incorporated in the union. Itwould be more accurate to say that it was hardlyconceived at all. The necessity for political devices

28 was rejected ; it was supposed that there would be noparties or organized groups of any kind . In factpolitics was unknown to the Constitution as writtenand all its devices have grown up outside its reach .

Politics is a complicated art understood only byits practitioners and by the most persistent students .It has customs and, of course, rules of its own . Itsdecisions, however, are reached often by covertmanipulation of its machinery ; and issues may bepresented for democratic decision in such ways thatreal answers cannot be given. This comes about be-cause party management is so often dominated by afew professionals : there is nothing in the Constitutionto prevent the most outrageous procedures .

Because the way toward decision ought to be openthroughout, the most effective, the best, end is likelyto appear only dimly through veils of interested in-terference . There are those, inevitably, to whom theend will be objectionable or injurious and they claim

the right to object. This comes to its worst phasewhen appeal is made to principle . Those who advo-cate change of government are at a disadvantage be-cause they seem to be critical of a Constitution withno provision for such change but with firm provisionsfor protecting individual rights. This is easily ex-tended to protecting the rights of those who invadeothers' rights . Everyone must look out for himself .

The democratic principle that all shall be free toinitiate, to try, to persuade, and to do, is hard tomake operative . The practical sense calls for allow-ing all individuals and associations to make theircontributions . So the obstructer and the exploitermust be allowed the freedom they demand ; they dohave rights and these must be respected . When theydo not infringe on those of others who are makingplans in furtherance of a public interest, they are noteasily checked. Something in the future - something

29desirable but not yet realized and therefore with noreally effective advocate - may be jeopardized ; butproving that this is so is a difficult procedure .

The chance that in the end a decision looking toeventual good will be made becomes less as moresuch individuals are encouraged to intervene ; andencouragement to do just that is inherent in theprocedures. What is struggling to emerge - demo-cratic dialogue - has a very hard time getting itselfestablished in institutions through the methodsallowed by its own principles: that all must be heardand that none must be silenced . But it is importantthat constitutional revision, if there should be acomprehensive one, should not again reject the wholeproblem of the dialogue and leave it to be settled byillegitimate conflict . This is what the framers didand the results have been costly .

In order to straighten out the procedure, issues can

30

be defined through planning . That is, they can belaid out as objectives, the alternatives can be stated,their difficulties can be made plain ; their costs toaffected individuals can be weighed ; and all this canbe done far enough ahead so that discussion, and,hopefully, a majority agreement can be reached .

A modern democracy requires both an electoralbranch to protect and further the public dialogue, anda planning branch to furnish its substance . The Con-stitution provides neither .

V

It has seemed worthwhile to experiment - as far asthe devising of one model after another can becalled experiment - with various arrangements cal-culated to make government more effective for whatis wanted of it, and still provide for adherence toessential freedoms .

During almost two centuries, the Constitution hasbeen amended twenty-five times, the first ten amend-ments constituting the Bill of Rights ; but this has notmade the Constitution adequate for the latetwentieth century. Two amendments had to do withprohibition against alcohol and its later abandon-ment; one affected voting for the Presidency ; anotherprovided for the direct election of senators; threewere intended to ensure the rights fought for in theCivil War; one legalized income taxes ; one gavewomen the right to vote ; one changed inaugurationday from March to January ; one permitted voting inthe District of Columbia ; one limited the President'sterms to two .

It will be seen that most of these had to do withcivil rights or with minor matters. Only two madeany modification of structure . The direct election ofsenators changed a notoriously reactionary bodyinto a much more responsive one, without, however,honoring the otherwise pervasive principle of equalrepresentation ; the smallest state still has two sena-tors just as the largest has .

The limitation of Presidential terms to two wasmore serious . It was defended as only making whathad been customary into a rule ; but it was adoptedin circumstances that left no doubt of its peevish andpartisan intent . Legislatures, both federal and state,meant to make it impossible, whether people wantedit or not, for the executive branch to have the con-tinuity the Roosevelt Administration had had. It wasnot recognized that, since the President had becomethe source of legislation, and since his ability to get

31

it rested on his political prestige, taking away thepossibility of his running again would make allsecond terms sterile . It made Presidents into lameducks .

The most important result of this amendment wasto make the legislative branch (both federal andstate) more powerful without requiring it to acceptthe responsibility for the use of its enlarged power .It diminished the President's influence and made iteasier for his urgings to be resisted . It made aninstitution which had become progressively more ob-structive as the years passed still more obstructive ;moreover it was made easier, within the legislature,for its more reactionary members to keep controlover the restless liberals .

The history of amendment under the original con-stitutional provision shows it to be a device usefulfor legislative protection but not responsive to de-

mands for reform from the people . A change in themethod of initiation and adoption is perhaps the firstnecessity of constitutional reform - a new methodof amendment .

VI

This Twenty-Second Amendment (limiting the Presi-dent to two terms) is unique in seriously affectinggovernmental structure . Since its ratification thePresident might well be ignored from the moment heenters his second term; and a dedicated Presidentwould then conclude that he should not continue for

32 another four years . This is serious not only forlegislative progress but for another reason as well .Having lost the political power of a potential con-tinuing executive, he has been enfeebled in sustainingthe influence he may need to grasp and use theemergency powers. These have been vital to thenation's security in numerous crises and their diminu-tion may well lead to weakness in some future one .This is not to say that the emergency powers do notneed definition . They most emphatically do; but thetwo-term limitation is of no assistance in this .

Since it has come to be more and more obviousthat the obstructive branch is the legislative one, itsclaims to be peculiarly representative are obviouslyspecious . What it most often represents are thespecial and local interests of its districts and states,but only occasionally the people likely to be ex-ploited by those interests .

This superior position for a districted legislature

emerged from an eighteenth-century additive theory .The assumption was that, if many interests wererepresented, compromise among them would producesomething good for all . What it depended on forresults- and still does - is exchanges of votes inmore or less frank bargaining. This will always befavorable to members with the most seniority andso holding the most privileges to bargain with ; andthe ones begging for consideration from their morepowerful brethren cannot be assumed to be beggingfor something useful to people as a whole . They wantto be able to say during their next campaign thatthey have extracted from the national bounty favorsfor the folks - or for their supporters - at home,and home is a locality ; it is not the nation .

Realistically, a custom of this kind is weightedagainst those citizens who have the least to give theirrepresentatives in return for his gifts . For many

33years in our history, many Americans did not evenhave votes to give. For the first half-century therewere property qualifications which excluded at leasteighty per cent of white male adults, the only classable to vote at all. Until the Civil War therewere racial exclusions, and these were perpetuatedby literacy tests and poll taxes even after the Thir-teenth and Fourteenth Amendments in 1868 and 1870respectively . In 1920 that part of the population whowere women could not vote . And until recently thevotes of some persons counted more than others be-cause of malapportionment : districts were not drawnas population densities changed . Democracy - oneman, one vote - was not something intended by theframers and protected by the Constitution; it tookthe better part of two centuries for its embodimentin electoral institutions. It also took sudden discoveryby a Supreme Court majority of a meaning the Con-

stitution and its amendments did not really intend .During all this time the legislative branch favored

that restricted number of citizens who could vote andwhose votes counted most. It was not strange thatwithin legislatures themselves this weighting was re-flected in rules and customs that made it easier forthose who represented the least democratic districtsto have and keep the most power . The House ofRepresentatives deserved the name much less than itsmembers liked to have outsiders think ; and this waseven more true of lower houses in state legislatures .Since amendment to the Constitution had to make itsway through these obstructions it is no wonder thatno amendments ever touched the legislatures them-selves .

There have been rigorous examinations of theexecutive branch during the past half-century, result-

34 ing in many changes. There have been only feeblescrutinies of the legislative branch and they have ledto no changes, or, it is more true to say, only thosechanges the legislators could use to fortify theirprivileges . They have immensely increased theirsalaries, their perquisites, and their staffs ; but thesehave made their privileges easier to sustain and sohave gone in entirely the wrong direction if in-creased democracy is the criterion .

Something much more drastic is needed than canbe accomplished by reorganizations within the con-stitutional allocations, even if all that could be donewith them were done. The government needs to beoriented to wholeness for the nation and fairness forits citizens . The legislature, as well as the President,needs to be made responsible to national needs ratherthan to local ones .

If there were no other reason, there is the need tocope with technologies now at least continental in

scope. From district-oriented legislators, trading forfavors among themselves and hospitable to swarmsof lobbyists for special interests who offer practicalsupport in exchange for favorable treatment, legis-lation for the furthering of general interests is mostunlikely to emerge. Presidents may push for suchmovement. They may remind their partisans ofpromises made as well as of developing needs ; buttheir leverage is weak at any time and it disappearsduring their second terms . President Johnson, ap-palled by his loss of prestige and influence, and seeingwhat lay ahead, simply quit . He had to; he could getnothing more done except as Commander-in-Chief ;and he encountered widespread objection to themilitary operations he conducted in dictator fashion .If he had run again and had been reelected he wouldhave had no influence with the Congress, and evenas Commander-in-Chief his powers would have been

35

threatened and almost certainly restricted .If there have been Presidential promises in a

second campaign they will have been for action ongeneral issues and only a rare one of these will movecongressmen. Tax reform will be shaped to favortheir supporters ; a national road system will bemeasured by its local uses ; farmers who need themleast will get subsidies ; consumers will be protectedreluctantly and in ways not too embarrassing tobusiness; banking laws will protect banks but onlynominally their customers ; foreign aid will be of nointerest whatever unless it is used - as much of ithas been - to sell American goods abroad, includ-ing, unfortunately, military equipment.

Franklin D. Roosevelt had an unprecedentedsecond-term victory in 1936 ; but the Congress wasnot impressed; and the conflicts between them wereonly made more vicious by the outpouring of popular

support. Even without the limitations on successionhe got nothing from the Congress except appropria-tions in preparation for war, and even to these therewas strong opposition .

To reform the legislature has always been the mostobvious way to a better government ; but it has beenthe one reform that nothing has been done about .Meanwhile there is constant effort to reduce thePresident's powers .

Would the President's weakness in pushing foraccommodation to change be much affected if, in-stead of two terms, he should be limited to one? Thatobviously should not be done if it stood alone . If hehad only one term he would never have the leveragehe needs. Even if his one term should be six yearsinstead of four, the weakness of a man with nopolitical future would remain. No attention would

36 be paid to his proposals after his first few months inoffice. When the jobs had all been parceled out andthe lobbyists knew whom they had to deal with, every-thing of national or general interest would be ignoredby the legislators .

What, then, is the cure? Not a reform of thePresidency ; clearly a reform of the legislature . Itmust be made to have national as well as localresponsibilities . It must be responsive to Presidentialleadership by having the same constituency as his .

This requires that the malapportioned Senate shallbe replaced by an Upper House chosen in a differentway. It requires that the House of Representativesbecome representative of all the people. Some of itsmembers - a quarter or a third, perhaps - oughtto be elected at large rather than from districts, andthe at-large members ought to have more internalpower in the House as leaders and chairmen ofcommittees .

VII

The Presidency cannot continue to be what is ex-pected of it as things are ; and this is for more reasonsthan that the Twenty-Second Amendment did seriousdamage. The office has had more burdens piled onit than it can carry . All the reorganizations of recentyears have not made matters much better . This isbecause the President has been conceived literally asa chief executive, whereas he has not really beenthat since Cleveland's time . He is indispensable asthe maker of foreign and domestic policy, as legis-lative leader, and as surrogate of the people . It isnot necessary that he should manage the servicedepartments ; and for a long time he has not beenable even to keep in communication with their heads .

37Since, however, the fiction that he is the chief ad-ministrator persists, he is held responsible for theperformance of hundreds of agencies whose per-formances he cannot possibly follow . This leads himto give them very infrequent and necessarily super-ficial attention : and their appointed officials as wellas the bureaucracies take his attentions lightly be-cause he cannot follow up his directives . Besides,these officials know the directives were not adequatelystudied to begin with . This allows administrators toescape general policy decisions and do pretty muchas they please. It is a constant irritation to thePresident, whose more pressing duties lie elsewhere,that his executive establishment has escaped hiscontrol .

He cannot escape responsibilities for his relationswith other nations . This requires much more thanhalf his energy and time . Most of the other half has

to be given to legislative leadership . The nation'sposition in the world cannot be placed second, evento law-making . But the legislature would come to analmost complete stop if he did not initiate measuresand prod them into law . Since the success of anyadministration is measured by the progress it makesin accommodation to changing circumstances and insolving problems, law-making must have high priorityamong his duties . But the Congress has made itselfincreasingly resistant to Presidential pressure and hasrepresented this as a virtue under the separationtheory. It has also become more receptive to theblandishments of the special interests who havesomething to gain from shaping statutes to their ownpreferences. To make some sort of record in gettingnecessary legislation, the Presidency has latterly ac-cumulated a large and growing staff of administration

38 lobbyists to counter those of the interests . CapitolHill is a guerrilla battleground with legislators play-ing the inglorious role of selling votes to one side orthe other - to the President or to those who opposehim .

This is hardly a constructive or even tolerable wayto conduct the affairs of a continental power .

Besides reorganizing the Congress to relieve theimpasse between the branches, the national interestrequires that the President be relieved of the directmanagerial duties he no longer attends to ; they canbecome the responsibility of elected Vice Presidents .He must continue to be the active Commander-in-Chief; nothing is more vital to a democracy thancivilian control of the armed forces. He must keepgeneral oversight of financial affairs, seeing to it thatstability is maintained, that expenditures are withinthe nation's productive capacity, and that generallythe allocations carry out national missions and pro-

vide essential services . But he must be allowed thetime and energy required for these massive responsi-bilities .

This arrangement would allow him to do what noone but he can or should even be allowed to do. Andit would separate from his immediate responsibilitythe managerial, regulatory, and custodial duties hecannot and should not be expected to perform .

The judicial system in the rewritten constitutionalmodel suggested here would have much the sameplace as was intended for it by the framers ; but notthat captured for it by Chief Justice Marshall in hisfamous coup. Marshall repudiated the Court's con-stitutional confines very early and since then theCourt has made its way slowly to a position ofsupremacy. It has taken to impairing the separationprinciple by using its granted authority of interpre-tation to tell the other branches what they can and

39

cannot do ; and the checks have not been invoked toprevent it .

It is quite clear that branches cannot be separateand interdependent if one of them can dictate whatthe others' powers are . So the Court has joined theother branches in abandoning restraint, observing itsrule only to the limit it feels compelled to observefor political reasons because the Congress mightpossibly become offended enough to limit its juris-diction . This is an unlikely event in a body two-thirds of whose members are lawyers, but it has beenthreatened and it might happen .

The success of the Constitution depended onrestraint. The President was expected not to go be-yond the necessities of his office ; the Congress wasexpected not to interfere with the President's business ;and the Supreme Court was expected to apply theConstitution to cases coming before it without either

legislating or interfering with execution. Since noneof the branches has really respected this principleand each has reached far beyond its reasonable areaof power, the question why this occurred is relevant.The answer is that too spacious a no-man's-land wasleft where such aggression could take place . Therewas not nearly enough specification of duties andpowers. Also it was not anticipated that vast socialand economic changes would make extensions neces-sary. A decent respect of each branch for the otherswas essential . The disappearance of that respect hasbeen disastrous .

The framers did depend too much on the restraintthat did not materialize ; but it must be said that adocument not having a large element of this sort isalmost inconceivable . The famous deliberate checksof each on the powers of the others did modify this

40 dependence. No branch can operate without someconcession to the others, however much it may try toescape or to overrun its authority . But as dutiesmultiplied, and powers were contended for, theneeded checks ought from time to time to have beenreconsidered . They never were, and governmentaldissensions have sometimes been so acrimonious andso stubbornly held to that operations have come toa stop or, at best, have been seriously obstructed .

Any new redrafting would need to readjust theserelationships, always recalling that no democracy canexpect to cast away its fundamental reliance onrestraint. If it did it would become totalitarian . Eachcitizen is expected to command himself and only tobe commanded when rules for his behavior are toomuch loosened. So with government. But there mustbe some definition of limits, and those in the docu-ment of 1787 do not suffice for the conditions of thepresent.

VIII

With these considerations in mind it can be seenwhat a revised constitution ought to accomplish :It ought to make amendment more frequent-

not easier, but more a matter of continuous con-sideration .

It ought to add political planning and regulatorybranches. These already exist in extralegal, not inconstitutional, forms. They are not likely to disappearbecause they have become essential, but they needthe guidance and protection of basic law .

It ought to redefine the duties of the three olderbranches making their responsibilities more explicitand reshaping them to the necessities of the present .

It ought to list the rights of individuals in their

41

present-day relationships, and state what they oweto each other and to the body politic .

It ought to provide a method for the wide dis-cussion of issues and for the election of candidatesfor office .

This is the intent of the draft long under discussionat the Center and many times modified . It is nowhoped that it may have wider discussion and mayundergo further modification as it is studied bythose for whom a constitution ought to be their lexsupra leges . pv

42

a MODEL

CONSTITUTION

FOR A

UNITED REPUBLICS

OF AMERICA

ADOPTION

J

t has been assumed in the course of this constitu-

tional exercise that the time might come when theAmerican people, exasperated by the obstruction-

ism of their Congress, the unwarranted assumption oflegislative powers by their Supreme Court, or theunbearable load of duties undertaken by the Presi-dent, might decide that new institutions are necessaryto fulfill their reasonable expectations of progress .

Conceivably, it could happen in this way :A President, approaching the end of his term,

provoked by his inability to move the Congress,determined to check the government's hardening intobureaucratic stolidity, fearful of the accumulatingconsequences of obsolescence, and conscious of hisinability to carry all his responsibilities, concludesthat he must appeal for consent to a new constitution .

He cannot proceed in the ways provided in theexisting Constitution . The Congress could not be ex-

A model for discussionVERSION XXXVII (1970)

pected to agree, by a two-thirds majority of bothhouses, to such a proposal ; and serious petition for aconvention from the states is even more unlikely .Both the present Congress and the existing states willbe adversely affected by what must be done .

The President recalls that the framers in 1787carried through something of a tour de force. Thecalling of a convention had been regularly authorized,it was true; but delegates, who had been directedsimply to amend the Articles of Confederation, hadgone much beyond their terms of reference and hadframed a whole new governmental scheme . Moreoverthey had provided for its ratification by the adherenceof only nine out of thirteen states, a doubtful way ofreducing expected opposition .

It seems to the President that some new effort ofthis kind must be made. If it must be made in un-orthodox fashion, it still could have the consent of

43the ultimate authority in a democracy - the people .If they demand a new constitution, who could saythat the demand ought to be denied? He decides togive them that opportunity and he announces whathe intends .

There is the expected uproar from those who fearthe loss of privileges. But there is louder commenda-tion from those who agree with him, and he is ableto persuade a hundred concerned citizens of ac-knowledged prominence to join in the reconsidera-tion. They undertake to draft a new constitution . Bythe time he has to campaign for reelection somethinglike the following document has been produced andagreed to by eighty of the hundred . The Presidentmakes it the single issue of his appeal . He is satisfied,he says, that the draft constitution incorporates theprinciples of freedom under law ; that it would assistin adaptation to the circumstances imposed by nature

and by the need for tolerance among nations ; andthat it would encourage initiative and productivitywhile offering economic security .

The President assumes, he says, that since he iswholly identified with it, his election by a consider-able majority would signal approval of the newconstitution. They are engaged, he tells the voters,in a referendum of sovereign persons who standabove all the institutions of the government createdby their ancestors and too little changed since thattime. He puts the ratifying majority at sixty per centof those voting .

He speaks of the moment as a solemn one in thenation's experience, a time when the past is beingconditioned to the future, and when a law funda-mental to all other laws is again being created as ithad been by the founders in another time of national

44

trial .He pledges that if his proposal is approved, he

will proceed by interim arrangement until the newconstitution can be implemented ; then he will retireto become a member of the new Senate provided forin the constitution .

Thus the issue is joined . . .

PREAMBLE

So that we may join in common endeavors, wel-come the future in good order, and create anadequate and self-repairing government - we

the people do establish the United Republics ofAmerica, herein provided to be ours, and do ordainthis Constitution, whose law it shall be until the timeprovided for it shall have run .

ARTICLE* I

The Republics

SECTION 1 . There shall be Republics, each number-ing no less than five per cent of the whole people, withsuch exceptions as the boundary commission shallmake. They shall continue during the life of this Con-stitution, together forming the United Republics ofAmerica .

SECTION 2. They shall have constitutions formulatedand adopted by processes hereinafter prescribed .

SECTION 3 . They shall have Governors General ;legislatures; and planning, administrative, and judi-cial systems .

45

SECTION 4 . Their political procedures shall be or-ganized and supervised by their own electoral Over-seers ; but their elections shall not be in years ofPresidential election.

SECTION 5 . They may make use of the United Re-publics' electoral apparatus and may be allottedfunds under rules agreed to by the national Overseer ;but, unless exceptions are approved by him, expendi-tures may not be made by or for any candidate ; andresidence requirements shall be no longer than thirtydays .

SECTION 6 . They may charter subsidiary govern-ments, urban or rural, and may delegate to thempowers appropriate to their responsibilities ; and suchgovernments shall be autonomous in matters ex-

46

clusive to their citizens, except that they shall con-form to constitutions of the United Republics ofAmerica and of their Republics .

SECTION 7 . Republics may lay, or may delegate thelaying of, taxes ; but these shall conform to the rulesand restraints stated herein for the United Republics ;and those on land may be higher than those on itsimprovements .

SECTION 8. They shall be responsible for the admin-istration of public services not reserved to the govern-ment of the United Republics, such activities beingconcerted with those of corresponding nationalagencies, where these exist, under arrangementscommon to all .

SECTION 9. The rights and duties prescribed in thisConstitution shall be effective in the Republics andshall be suspended only in states of emergency de .clared by Governors General and not disapprovedby the Senate of the United Republics .

SECTION 10. Police powers of the Republics shallextend to all matters not reserved to the United Re-publics ; but preempted powers shall not be impaired .

SECTION 11 . Republics may not enter into any treaty,alliance, or confederation not approved by the UnitedRepublics .

They may not coin money, provide for the pay-ment of debts in any but legal tender, nor make anycharge for inter-Republic services. They may notpass ex post facto laws or laws impairing the obliga-tion of contract .

SECTION 12. Republics may not tax exports, may nottax with intent to prevent imports, and may not im-pose any tax forbidden by United Republics law ; butthe objects appropriate for taxation by Republicsshall be clearly designated .

SECTION 13 . Republics may not impose quarantineagainst imports from other Republics or impose anyhindrance to citizens' freedom of movement .

SECTION 14. If governments of the Republics fail tocarry out fully their constitutional duties, their offi-cials shall be warned and may be required by theSenate, on the recommendation of the Watchkeeper,to conform . or be subject to suspension from theirduties .

ARTICLE II

The Electoral Branch

SECTION 1 . To arrange for participation by the elec-torate in the determination of policies and the selec-tion of officials, there shall be an Electoral Branch ofthe United Republics .

SECTION 2. An Overseer of electoral procedures shallbe chosen by the Senate for one term of seven years .He shall see to the organizations of national anddistrict parties, arrange for discussion among them,and provide for the nomination and election of

47

candidates for public office. During his service heshall belong to no political organization .

SECTION 3. A national party shall be one having hadat least a five-per-cent affiliation in the latest generalelection; but a new party shall be recognized whenvalid petitions have been signed by at least two percent of the voters in each of thirty per cent of thedistricts drawn for the House of Representatives .Recognition shall be suspended upon failure to gainfive per cent of the votes at a second election, tenper cent at a third, or fifteen per cent at furtherelections .

District parties shall be recognized when at leasttwo per cent of the voters shall have signed petitionsof affiliation ; but recognition shall be withdrawnupon failure to attract the same percentages as are

48

necessary for the continuance of national parties .

SECTION 4. Recognition by the Overseer shall bringparties within established regulations and entitlethem to common privileges .

SECTION 5. The Overseer shall promulgate rules forparty conduct and shall see that fair practices aremaintained . For this purpose he shall appointdeputies in each district and shall supervise thechoice, in district and national conventions, of partyadministrators. His regulations and appointmentsmay be objected to by the Senate; and he may beremoved by a majority vote .

SECTION 6 . The Overseer, with the administratorsand other officials, shall :

a . Provide the means for discussion, in each

party, of public issues, and, for this purpose, see thatmembers have adequate facilities for participation .

b . Arrange for discussion, in annual districtmeetings, of the President's views, of the findings ofthe Planning Branch, and such other information asmay be pertinent for enlightened political discussion .

c . Arrange, on the first Saturday in each month,for enrollment, valid for one year, of voters at con-venient places .

SECTION 7. He shall also :

a . Assist the parties in nominating candidates fordistrict members of the House of Representativeseach three years ; and for this purpose designate onehundred districts, each with a similar number ofeligible voters, redrawing districts after each election .In these there shall be party conventions having no

49more than three hundred delegates, so distributedthat representation be approximately equal .

Candidates for delegate may become eligible bypresenting petitions signed by two hundred registeredvoters . They shall be elected by party members onthe first Tuesday in March, those having the largestnumber of votes being chosen until the three hundred,together with ten alternates, be complete .

District conventions shall be held on the firstTuesday in April . Delegates shall choose three candi-dates for membership in the House of Representa-tives, the three having the most votes becomingcandidates .b. Arrange for the election each three years of

three members of the House of Representatives ineach district from among the candidates chosen inparty conventions, the three having the most votesto be elected .

SECTION 8. He shall also :

a . Arrange for national conventions to meet nineyears after the previous Presidential election, havingan equal number of delegates from each district, thewhole not to exceed one thousand .

Candidates for delegate shall be eligible whenpetitions signed by five hundred registered votershave been filed . Those with the most votes, togetherwith two alternates, shall be chosen in each district .

b . Approve procedures in these conventions forchoosing one hundred candidates to be members-at-large of the House of Representatives, for this pur-pose causing delegates to file one choice with conven-tion officials, voting on submissions to proceed untilone hundred achieve ten per cent ; but not more thanthree choices may be resident in any one district ; if

50 any district have more than three, those with thefewest votes shall be eliminated, others being addedfrom the districts laving less than three, until equalitybe reached. Of those added, those having the mostvotes shall be chosen first .

c . Arrange procedures for consideration and ap-proval of party objectives by the convention .

d . Formulate rules for the nomination in theseconventions of candidates for President and VicePresidents when the offices are to fall vacant, candi-dates for nomination to be recognized when petitionsshall have been presented by one hundred or moredelegates, pledged to continue support until candi-dates can no longer win or until they consent towithdraw. Presidents and Vice Presidents, after serv-ing for three years, shall submit to referendum, andif rejected, new conventions shall be held within onemonth and candidates shall be chosen as for vacantoffices .

Candidates for President and Vice Presidents shallbe nominated on attaining a majority .

e . Arrange for the election on the first Tuesdayin June, in appropriate years, of new candidates forPresident and Vice Presidents, and for members-at-large of the House of Representatives, all beingpresented to the nation's voters as a ticket ; if noticket achieve a majority, he shall arrange anotherelection on the third Tuesday in June between thetwo having the most votes ; and if referendum sodetermine he shall provide similar arrangements forthe nomination and election of candidates .

If there be no majority in this election, anothershall be held on the first Tuesday in July following .

SECTION 9. He shall also :

a . Arrange for the convening of the legislative

s I

houses on the fourth Tuesday of July .b . Arrange for inauguration of the President and

Vice Presidents on the second Tuesday of August .

SECTION 10 . All costs of these procedures shall bepaid from public funds and there shall be no privatecontributions to parties or candidates ; no contribu-tions or expenditures for meetings, conventions, orcampaigns shall be made ; and no candidate foroffice may make any personal expenditures unlessauthorized by the Overseer; and persons or groupsmaking expenditures, directly or indirectly, in supportof prospective candidates, shall report to the Over-seer and shall conform to his regulations .

SECTION 11 . Expenses of the Electoral Branch shallbe met by the addition of one per cent to their netannual taxable income returns by taxpayers, this sum

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to be held by the Chancellor of Financial Affairs fordisposition by the Overseer .

Funds shall be distributed to parties in proportionto the respective number of votes cast for the Presi-dent and Governors General at the last election, ex-cept that new parties, on being recognized, shall sharein proportion to their number . Party administratorsshall make allocations to legislative candidates inamounts proportional to the party vote at the lastelection .

Expenditures shall be audited by the Watchkeeper ;and sums not expended within two years shall nolonger be available .

It shall be a condition of every communicationsfranchise that facilities shall be available for alloca-tion by the Electoral Overseer to candidates foroffice .

SECTION 12. In all electoral decisions the vote of anycitizen shall count equally with others ; his eligibilityto vote and his qualifications for office shall be de-termined as provided herein .

ARTICLE III

The Planning Branch

SECTION 1 . There shall be a Planning Branch toformulate and administer plans and to preparebudgets for the uses of expected income in pursuit ofpolicies formulated by the processes provided herein .

SECTION 2. There shall be a Planning Board of

eleven members appointed by the President ; the firstmembers shall have terms of one to eleven years, theone having the longest term to be chairman ; there-after one shall be appointed each year . They shall beeligible for reappointment .

SECTION 3. The chairman shall present to the Boardsix- and twelve-year development plans prepared bya planning department under his supervision, andthey shall be revised after public hearings in the yearbefore they are to take effect . These shall be sub-mitted to the President on the fourth Tuesday in Julyfor transmission to the Senate on September 1stwith his comments .

The chairman shall transmit the annual budget tothe President on the fourth Tuesday in July . It shallbe a revision, for the coming year, of the six-yearplan, combining estimates for all departments and

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agencies .If a majority of the Board fail to approve the

budget proposals by the forwarding date, the chair-man shall nevertheless make submission to thePresident with notations of reservations by members .The President shall transmit the budget, with hiscomments, to the House of Representatives on Sep-tember 1 St .

SECTION 4 . A planning administrator shall be ap-pointed by the chairman, unless a majority of theBoard object, from panels elected by national associa-tions of professional planners recognized by him;and he shall appoint such deputies as may be agreedto by the chairman and the Board .

SECTION 5 . It shall be recognized that the six- andtwelve-year development plans represent national in-

tentions tempered by the appraisal of possibilities .The twelve-year plan shall be a general estimate ofprobable progress, both governmental and private ;the six-year plan shall be more specific as to estimatedincome and expenditure .

The purpose shall be to advance, through everyagency of government, the excellence of nationallife; it shall be the further purpose to anticipate in-novations, to estimate their impact, to assimilatethem into existing institutions, or to moderatedeleterious effects on the environment and on society .

The six- and twelve-year plans shall be dissemi-nated for discussion and the opinions expressed shallbe considered in the formulation of plans for thesucceeding year .

SECTION 6. For both plans an extension of one year54 into the future shall be made each year and the

estimates for all other years shall be revised accord-ingly. For non-governmental activities the estimateof developments shall be calculated to indicate theneed for enlargement or restriction .

SECTION 7 . If there be objection by the President orthe Senate to the six- or twelve-year plans, they shallbe returned for restudy and resubmission . If therestill be differences, and if the President and theSenate agree, they shall prevail . If they do not agree,the Senate shall prevail and the plan shall be revisedaccordingly .

SECTION 8 . The Republics, on June 1st, shall sub-mit proposals for development to be considered forinclusion in those for the United Republics . Re-searches and administration shall be delegated, whenconvenient, to planning agencies of the Republics .

SECTION 9 . Submissions may be required from suchprivate individuals or associations as are affectedwith a public interest, including those organized asAuthorities . They shall report intentions to expandor contract, estimates of production and demand,probable uses of resources, numbers to be employed,and such other information as may be essential tocomprehensive public planning ; but there shall beregard for the convenience of those required to makereports .

SECTION 10. The Planning Branch shall make andhave custody of the official maps of the United Re-publics and these shall be documents of reference forfuture developments both public and private . Thelocation of facilities, with extension indicated, andthe intended use of all areas, shall be marked out onthe official maps .

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Official maps shall also be maintained by theplanning agencies of the Republics ; and in mattersnot exclusively national the Board may rely on these.

Developments in violation of official designationshall be at the risk of the venturer and there shall beno recourse; but losses from designations precedingacquisition shall be recoverable in actions before theCourt of Claims .

SECTION 11 . The Planning Branch shall have avail-able to it funds equal to one-half of one per cent ofthe approved United Republics budget (not includ-ing debt service or payments from trust funds) . Theyshall be held by the Chancellor of Financial Affairsand expended according to rules approved by theBoard .

SECTION 12 . Allocations may be made for the work

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of the planning agencies of the Republics ; but theirprocedures shall conform to standards formulated bythe Board, taking into account population, area, andsuch other criteria as may be relevant ; but only theUnited Republics map and plans or those approvedby the Board shall have status at law .

SECTION 13 . In making plans, there shall be dueregard to the interests of other nations and such co-operation with their intentions as may be consistentwith plans for the United Republics .

SECTION 14. The Planning Branch may cooperatewith international agencies, making such contribu-tions to their work as are approved by the President .

ARTICLE IV

The Presidency

SECTION 1 . The President of the United Republicsshall be responsible to all the people . He shall be thehead of their government, shaper of its commitments,expositor of its policies, and supreme commander ofits protective forces .

He shall have one term of nine years, unless re-jected by sixty per cent of the electorate after threeyears .

He shall take care that the nation's resources areestimated and are apportioned to its more exigentneeds; and he shall recommend such plans, legisla-tion, and action as he may find necessary .

He shall address the legislators each year on thestate of the nation, calling upon them to do their partfor the general good, and from time to time shallmake report to the citizens .

With the Vice Presidents and the Intendant, heshall see to it that the laws are faithfully executedand shall pay attention to recommendations of thePlanning Board, the Watchkeeper, and the Regulatorin formulating his strategies .

SECTION 2. There shall be two Vice Presidentselected with the President; at the time of takingoffice the President shall designate one to supervisegeneral affairs and the other to supervise internalaffairs. He shall also designate one to be his suc=cessor if he shall be permanently incapacitated ; theother shall be second in succession. If either VicePresident shall die or be incapacitated, the President,

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with the consent of the Senate, shall appoint a suc-cessor. They shall serve with him if he shall have anextended term ; but their assignments shall be at hisconvenience .

If the Presidency shall fall vacant through thedisability of both Vice Presidents, the Senate shallelect a successor from among its members to serveuntil the next general election .

SECTION 3. Responsible to the Vice President forGeneral Affairs there shall be Chancellors of Foreign,Financial, Military, and Legal Affairs .

The Chancellor of Foreign Affairs shall assist thePresident in conducting relations with other nations .

The Chancellor of Financial Affairs shall super-vise the nation's monetary system and regulate itscapital markets and credit-issuing institutions as theymay be established by law ; and this shall include

lending institutions for operations in other nations orin cooperation with them, except that treaties maydetermine their purposes and standards .

The Chancellor of Legal Affairs shall advise gov-ernmental agencies and represent them before thecourts .

The Chancellor of Military Affairs shall act for thePresidency in disposing all armed forces exceptRepublican Guards commanded by Governors Gen-eral; but these shall be available for national serviceat the President's convenience .

Except in declared emergency, the deployment offorces in far waters, or in other nations without theirconsent, shall be notified in advance to a nationalsecurity committee of the Senate and if it object, andthe Senate shall agree, it shall prevail .

58 SECTION 4. Responsible to the Vice President forInternal Affairs there shall be chancellors of suchdepartments as the President may find necessary forperforming the services of government and are notrejected by law when the succeeding buclget is con-sidered .

SECTION 5 . Candidates for the Presidency and theVice Presidencies shall be natural born citizens . Theirsuitability may be questioned by the Senate withinten days of their nomination, and if two-thirds of thewhole agree, they shall withdraw and a nominatingconvention shall be reconvened . At the time of hisnomination no candidate shall be a member of theSenate and none shall be on active service in thearmed forces .

SECTION 6. The President may take leave because ofillness or for an interval of relief, and the Vice Presi-

dent in charge of General Affairs shall act in hisplace; but the Senate shall be notified and a majoritymay object or may recall him to active duty . He mayresign if the Senate agree; and if his term shall havemore than two years to run, the Overseer shallarrange for a special election for President and VicePresidents .

SECTION 7. The Vice Presidents may be directed toperform such ministerial duties as the President mayfind convenient ; but their instructions shall be ofrecord, and their actions shall be taken as his deputy .

SECTION 8 . Incapacitation of the President may beestablished without his concurrence by a two-thirdsvote of the Senate, whereupon his successor shall be-come acting President until the disability be declared,by a similar vote, to be ended or to have become

59permanent . Similarly the other Vice President shallsucceed if his predecessor die or be disabled . Specialelections, in these contingencies, may be required bythe Senate .

Acting Presidents may appoint deputies, unless theSenate object, to assume their supervisory dutiesuntil the next election .

SECTION 9. The Vice Presidents, together with suchother officials as the President may designate fromtime to time, may constitute his cabinet or counciland shall serve as he may require, but this shall notinclude officials of other branches .

SECTION 10. Treaties or agreements with other na-tions, negotiated under the President's direction, shallbe in effect unless objected to by a majority of theSenate within ninety days. If objected to, the Presi-

dent may resubmit and the Senate reconsider. If amajority still object the Senate shall prevail .

SECTION 11 . The President may cause informationto be withheld from disclosure if it be judged by himto be harmful to any individual or to the public in-terest ; but it shall be his duty not to infringe thepublic's right to know for what reason decisions aremade .

SECTION 12 . All officers of the United Republicsincluding representatives abroad, except as providedherein, shall be appointed and may be removed bythe President . The Senate may object to appointmentswithin sixty days, and alternative candidates may beoffered until it agree .

60 SECTION 13 . The President shall transmit to thePlanning Board and the House of Representatives, onthe fourth Tuesday in June, his estimate of the maxi-mum allowable expenditures for the ensuing fiscalyear, and this shall be adhered to except in declaredemergency .

SECTION 14 . There shall be an Intendant responsibleto the President. He shall supervise Offices for In-telligence and Investigation . He shall also supervisean Office of Emergency Organization with the dutyof providing plans and procedures for such contin-gencies as may be anticipated .

SECTION 15 . It shall also be the duty of the Intendantto coordinate scientific and cultural studies within thegovernment and elsewhere, and for this purpose heshall establish such agencies and organize such assis-tance as may be found necessary .

SECTION 16. Offices for other purposes may be estab-lished and may be discontinued by Presidential order .

ARTICLE V

The Legislative Branch:

(The Senate, and the House of Representatives)

A. The Senate

SECTION 1 . There shall be a Senate with membershipas follows : If they so desire, former Presidents, VicePresidents, Principal Justices, Overseers, Chairmen

61

of the Planning Board, Governors General of theRepublics having had more than seven years' service,and unsuccessful candidates for the Presidency andVice Presidency who have received at least thirtyper cent of the vote ; to be appointed by the President :three persons who have been Chancellors, two offi-cials from the civil, and two from the diplomaticservices; three senior military officers ; also one personfrom a panel of three, elected in a process approvedby the Overseer, by each of twelve such groups orassociations as the President may recognize fromtime to time to be nationally representative, but noneshall be a political group, no individual selected shallhave been paid by any private interest to influencegovernment, and any association objected to by theSenate shall not be recognized . Similarly, to be ap-pointed by the Principal Justice, five persons dis-tinguished in public law including three former mem-

bers of the High Courts or the Judicial Council . Also,to be elected by the House of Representatives, threemembers who have served six or more years .

Vacancies shall be filled as they occur .

SECTION 2. Membership shall continue for life, ex-cept that absences not provided for by the Senateshall constitute retirement . Retirees may not engagein another paid occupation except in accord with anapproved rule .

SECTION 3 . The Senate shall elect a Provost to be itspresiding officer for two years ; but he shall continueunless a majority shall then disapprove . He shallappoint other officers, unless the House object, in-cluding a Vice Provost to act in his absence .

62 SECTION 4. The Senate shall convene each year onthe second Tuesday in July and shall be in continuoussession, but may adjourn to the call of the Provost,who may also excuse the absence of members . Aquorum shall be more than three-fifths of the wholemembership .

SECTION 5 . The Senate shall consider, and returnwithin thirty days, all measures approved by theHouse of Representatives except the annual budget ;approval or disapproval shall be by a majority voteof those present ; objection shall stand unless theHouse of Representatives shall overcome it by atwo-thirds vote ; if no return be made, approval bythe House of Representatives shall be final .

SECTION 6. The Senate may ask advice from thePrincipal Justice concerning the constitutionality ofmeasures before it ; and if this be done, the time for

return to the House of Representatives may extend tosixty days .

SECTION 7 . If requested, the Senate may advise thePresident on matters of public interest ; or, if not re-quested, by resolution approved by two-thirds ofthose present. There shall be a special duty to notethe resolutions of party conventions and commit-ments made during campaigns ; and, if these beignored, to remind the President and the House ofRepresentatives of these undertakings .

SECTION 8 . In time of clear and present dangercaused by cataclysm, by attack, or by insurrection,the Senate may declare a national emergency andmay instruct the President to act . If the Senate bedispersed, and no quorum available, the Presidentmay proclaim the emergency, and may terminate it

63unless the Senate shall have acted . If the President benot available, and the circumstances be extreme, thesenior serving member of the Presidential successionmay act until a quorum assemble .

SECTION 9. The Senate may also define and declare alimited emergency in time of prospective danger, orof local or regional disaster ; or if an extraordinaryadvantage be anticipated ; it shall be considered bythe House of Representatives within three days, andunless disapproved may extend for a designatedperiod before renewal .

During declared emergency all defined pro-cedures shall be adhered to unless it transcend alldefinition .

SECTION 10. The Senate shall elect a NationalWatchkeeper and shall supervise, through a standing

committee, a Watchkeeping service conducted ac-cording to rules formulated by him for their approval .

With the assistance of an appropriate staff he shallgather and organize information concerning the ade-quacy, competence, and integrity of governmentalagencies and their personnel, as well as their con-tinued usefulness ; he shall also suggest the need fornew or expanded services ; and he shall also report,concerning any agency, the deleterious effect of itsactivities on citizens or on the environment .

For these purposes, investigations may be made,witnesses examined, post-audits made, and informa-tion required .

The Provost shall present the Watchkeeper's find-ings to the Senate, and, if it be judged to be in thepublic interest, they shall be made public, or, with-out being made public, be sent to the appropriate

64 agency for its guidance and further action. On recom-mendation of the Watchkeeper the Senate may initiatemeasures to be voted on by the House of Representa-tives within thirty days. When approved by a ma-jority and not vetoed by the President, they shall be-come law. For the Watchkeeping service one-quarterof one per cent of individual net taxable incomesshall be held by the Chancellor of Financial Affairs ;but amounts not expended in any fiscal year shall beavailable for general use .

B. The House of Representatives

SECTION 1 . The House of Representatives shall beconstituted of members who have been freely electedby the citizens of the United Republics and shall bethe original law-making body .

SECTION 2 . The House shall convene each year onthe second Tuesday in July and shall remain in con-tinuous session except that it may adjourn to the callof a Speaker, elected by majority vote, who shall beits presiding officer.

SECTION 3 . It shall be a first duty of the House toimplement by legislation the provisions of this con-stitution .

SECTION 4 . Party leaders and their deputies shall bechosen by caucus at the beginning of each session .

SECTION 5 . Standing and temporary committees shallbe selected as follows :

Committees dealing with the calendaring andmanagement of bills shall have a majority of mem-bers nominated to party caucuses by the Speaker ;

65others shall be nominated by minority leaders . Mem-bership shall correspond to the parties' proportionsat the last election. If nominations be not approvedby a majority of the caucus, the Speaker or theminority leaders shall nominate others and these shallbe seated .

When committees are constituted, the Speaker shallnominate chairmen from among their members ; butchairmen shall be at-large members .

Members of other committees shall be chosen byparty caucus in proportion to the results of the lastelection. Chairmen shall be chosen annually by theSpeaker from among at-large members .

Bills referred to committee shall be returned to theHouse with recommendations within thirty daysunless the House shall permit extension by majorityvote .

All committee action shall be by majority vote and

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those voting for and against shall be recorded .No committee chairman shall serve longer than

six years .

SECTION 6 . Approved legislation not objected to bythe Senate within thirty days after submission shallbe presented to the President for his approval ordisapproval . If the President disapprove, and three-quarters of the membership still approve, it shallbecome law. The names of those voting for andagainst shall be recorded . Bills not returned withineleven days shall become law .

SECTION 7 . The President may have thirty days toconsider measures approved by the House and notpresented to him twelve days previous to adjourn-ment .

SECTION 8 . The House shall consider the annualbudget; if there be objection, it shall be notified tothe Planning Board ; but objection must be by wholetitle. The Board shall resubmit ; but if there still beobjection, the House shall prevail if there be a two-thirds majority .

Titles not objected to shall be in effect and shallconstitute appropriation .

The budget for the fiscal year shall be in effect onJanuary 1st. Titles not yet acted on shall be as inthe former budget until action be completed .

SECTION 9 . It shall be the duty of the House to makelaws :

(1) For the laying and collecting of taxes :

a) Collections to be uniform throughout the UnitedRepublics .

b) Except such as may be authorized by law to belaid by the Republics or other authorities, all collec-tions to be made by the revenue department of theUnited Republics . This shall include collections forthe trust funds hereinafter authorized .c) Except for corporate levies to be held in theNational Sharing Fund, hereinafter authorized, reve-nues may be collected only from individuals and onlyfrom incomes ; but there may be withholding fromcurrent incomes .d) Limits may be established for altering rates oftaxation to assist in the maintenance of stable eco-nomic activity. Within those limits the President mayact by executive order .e) Taxes shall not be retroactive .f) Enterprises owned or conducted by religiousestablishments or other non-profit organizations shallbe taxed .

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g) There shall be no taxes on food, medicines,residential rentals, or on commodities or servicesdesignated by law as necessities ; and there shall beno double taxation.

(2) For expenditure from revenues

a) For the purposes detailed in the annual budgetunless objection be made by the procedure prescribedherein .b) For such other purposes as it may indicate andmay require the Planning Branch to include in revi-sions of the budget; but, except in declared emer-gency, the total may not exceed the President's esti-mate of available funds .

(3) For fixing the percentage of net corporatetaxable incomes to be paid into a National Sharing

Fund to be held in the custody of the Chancellor ofFinancial Affairs and to be expended for such welfareand environmental purposes as are determined bylaw; but expenditures for these purposes shall notexceed the amount held in the Fund .

(4) To provide for the regulation of commercewith other nations and among the Republics, Posses-sions, Territories, or, as shall be mutually agreed,Affiliated Republics ; but exports shall not be taxed ;and imports shall not be taxed except on recom-mendation of the President at rates whose allowablevariation shall have been fixed by law ; there shall beno quotas, and no nations favored by special rates,unless by special acts requiring two-thirds majorities .

(5) To establish or provide for the establishment68 of institutions for the safekeeping of savings, for the

gathering and distribution of capital, for the issuanceof credit, for controlling the media of exchange, andfor regulating the coinage of money ; but such institu-tions, when not public or semi-public, shall be re-garded as affected with the public interest and shallbe supervised by appropriate agencies directed by theChancellor of Financial Affairs .

(6) To establish institutions for insurance againstrisks and liabilities, or to provide suitable agenciesfor their regulation .

(7) To ensure the maintenance, by ownership orregulation, of facilities for communication, transpor-tation, and others commonly used and necessary forpublic convenience .

(8) To assist in the maintenance of world order,

and, for this purpose, when the President shall recom-mend, to vest such jurisdiction in international legis-lative, judicial, or administrative organizations asshall be consistent with the national interest .

(9) To develop with other peoples, and for thebenefit of all, the resources of space, of other bodiesin the universe, and of the seas beyond twelve milesfrom low-water shores unless treaties shall provideother limits .

(10) To assist other peoples who have not attainedsatisfactory levels of well-being; to delegate the ad-ministration of funds, whenever possible, to inter-national agencies; and to invest in or contribute tothe furthering of development in other parts of theworld .

(11) To assure, or to assist in assuring, equal ac-cess to facilities for education ; for training in occupa-tions citizens may be fitted to pursue ; and to re-educate or retrain those whose occupations may be-come obsolete .

(12) To establish or to assist institutions devotedto higher education or to technical training, and toprovide equal opportunities for all eligible students .

(13) To establish or assist libraries, archives,monuments, and other places of historic interest .

(14) To assist in the advancement of sciences andtechnologies; and to encourage cultural activities .

(15) To conserve natural resources by purchase,by withdrawal from use or by regulation ; to provide,

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or to assist the Republics or other governments inproviding facilities for recreation ; to establish andmaintain parks, forests, wetlands, and prairies ; toimprove streams and other waters ; to insure thepurity of air and water ; to control the erosion ofsoils; and to do all else necessary for the protectionof the national heritage.

(16) To acquire property and improvements when-ever necessary for public use at costs to be fixed, ifnecessary, by the Court of Claims .

(17) To prevent the stoppage or hindrance of gov-ernmental activities, or of others affected with apublic interest, by reason of disputes between em-ployers and employees, or for other reasons, and forthis purpose to provide for conclusive arbitration if

70 adequate provision for collective bargaining shallfail . From such findings there may be appeal to theCourt of Arbitration Review ; but such proceedingsmay not stay the acceptance of findings .

(18) To establish and maintain armed forces forthe security of the United Republics ; but service inthem shall be voluntary except in declared emergencywhen uniform service may be required ; but theCourt of Rights and Duties may establish exceptionsfor reasons of conscience or religious belief .

No officer of the armed forces may appear beforea legislative committee ; and no subordinate of anydepartment may appear without the consent of thedepartmental chancellor .

(19) To enact such measures as will assist familiesin making adjustment to future resources, using esti-

mates concerning population which have been madeby the Planning Board .

(20) Such measures as the President may designateshall be voted on within ninety days.

ARTICLE VI

The Regulatory Branch

SECTION 1 . There shall be a Regulatory Branch andthere shall be a National Regulator. With a Na-tional Regulatory Board, he shall make and admin-ister rules for such enterprises as are determined bylaw to be affected with the public interest .

The Regulatory Branch shall have such agenciesas the Regulator may find necessary and are notdisapproved by law. He shall appoint boards, notlarger than seven members each, appropriate forsupervising particular kinds of enterprise ; and heshall appoint one member as chairman . They may beobjected to by the Senate .

The chairmen of these boards shall constitute theNational Regulatory Board, to serve with the Na-tional Regulator in making general rules for the con-duct of regulated enterprises . These shall conform tothe principles of fair practice, equality of service,honesty in representation, and maintenance of effi-ciency ; they shall provide for progress through re-search and for protection of public interests . Suchenterprises may be investigated by the Watchkeeper ;and appeal from rulings may be made to the Courtof Administrative Settlements .

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SECTION 2. The Regulator shall charter all corpora-tions or other enterprises except those supervised bythe Chancellor of Financial Affairs or the Intendant.The Republics may charter those for intra-Republicactivities ; but all charters shall describe proposedactivities, and departures from these shall requireamendment by the Regulator on penalty of revoca-tion .

SECTION 3 . Chartered enterprises may organize jointAuthorities, and these may formulate among them-selves codes to ensure fair competition, meet externalcosts, set standards for service, expand trade, in-crease production, eliminate waste, assist in standard-ization, and maintain services of research, communi-cation, and common use ; but membership shall beopen to all, and nonmembers shall be required by

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license to maintain the standards fixed in the codeson penalty of revocation by the Regulatory Board.

All Authorities shall have governing committeesof five, three being appointed by the Regulator torepresent the public . They shall serve as he maydetermine; they shall be compensated ; and he shalltake care that there be no conflicts of interest . TheNational Regulatory Board shall approve or prescribethe distribution of profits to stockholders, allowableamounts of working capital, reserves and costs, andall other practices affecting the public interest .

All codes shall be subject to review by the Regu-lator with his Board ; and governing bodies may bedissolved and reconstituted with approved members .

SECTION 4. Member enterprises of an Authority shallbe exempt from other regulation .

SECTION 5. The Regulator, with his Board, shall fix

standards and procedures for the merger of enter-prises or the acquisition of some by others ; and theseshall be in effect unless rejected by the Court ofAdministrative Settlements . The purpose shall be toencourage adaptation to change and to further ap-proved intentions for the nation .

SECTION 6. Enterprises may be restrained by theRegulator when they restrict access to, or increaseprices of, goods and services ; or when their ecologicaleffects are deleterious ; and he shall see to it that ex-ternal costs are assessed to their originators .

SECTION 7 . Operations extending abroad shall con-form to policies notified to the Regulator by thePresident .

SECTION 8 . The Regulator shall charter non-profit

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corporations (or foundations) determined by himwith the Board to be for useful public purposes ; butthis judgment may be reviewed by the Court ofRights and Duties . Contributions shall not be taxed .

SECTION 9 . He shall make rules for and shall super-vise storehouses for products and marketplaces forgoods and services ; but this shall not include securityexchanges regulated by the Chancellor of FinancialAffairs .

SECTION 10. Designation of enterprises affected witha public interest, rules for the conduct of enterprisesand of their Authorities, and other actions of theRegulator or of the Boards, may be appealed to theCourt of Administrative Settlements .

SECTION 11 . Responsible also to the Regulator, there

shall be a commission appointed by the Regulator,unless the Senate object, for the supervision of publicenterprises. The commission shall maintain thenecessary surveillance of enterprises wholly or partlyowned by the government. The commission shallchoose its chairman and he shall be the executivehead of a supervisory staff . He may require reports,conduct investigations, and make rules and recom-mendations concerning surpluses or deficits, the ab-sorption of external costs, standards of service, andrates or prices charged for services or goods . Theintention shall be that such enterprises shall be self-supporting, but exceptions may be made if the legis-lature agree .

Each enterprise shall have a director, chosen byand removable by the commission ; and he shall con-duct its affairs in accordance with the standards of

74

public service fixed by the commission .The conduct of the commission and the activities

of such corporations may be reviewed by the Courtof Administrative Settlements .

ARTICLE VII

The Judicial Branch

SECTION 1 . There shall be a Principal Justice of theUnited Republics ; and there shall be a JudicialCouncil, a Judicial Assembly, a High Court of theConstitution, and a High Court of Appeals ; alsoCourts of Claims ; Rights and Duties ; AdministrativeSettlements; Tax Appeals ; and Arbitration Review .

Also there shall be Circuit courts to be of first

resort in suits brought under national law and tohear appeals from courts of the Republics .

Other courts may be established by law on recom-mendation of the Principal Justice with the JudicialCouncil.

SECTION 2. The Principal Justice shall preside overthe judicial system, shall appoint the members of allcourts, and, with the Judicial Council, make its rules ;also, through the administrator, he shall supervise itsoperations .

SECTION 3 . There shall be a Judicial Assembly con-sisting of Circuit Court judges, together with thoseof the High Courts of the United Republics andthose of the highest courts of the Republics . It shallmeet annually, or at the call of the Principal Justice,to consider the state of the judiciary and such other

75matters as may be laid before it .

It shall also meet at the call of the Provost tonominate three candidates for the Principal Justice-ship of the United Republics whenever a vacancyshall occur. From these nominees the Senate shallchoose the one having the most votes .

SECTION 4. The Principal Justice, unless the Senateobject to any, shall appoint a Judicial Council of fivemembers to serve during his incumbency . He shalldesignate a senior member who shall preside in hisabsence .

It shall be the duty of the Council, under the direc-tion of the Principal Justice, to study the courts inoperation, to prepare codes of ethics to be observedby members, and to suggest changes in procedure .They may ask the advice of the Judicial Assembly .

It shall also be a duty of the Council, as herein-

76

after provided, to suggest constitutional amendmentswhen they appear to be necessary ; and it shall alsoprepare the draft of revisions if they shall be required .Further, it shall examine, and from time to time causeto be revised, civil and criminal codes ; these, whenapproved by the Judicial Assembly, and if not re-jected by the Senate, shall be in effect throughout theUnited Republics .

SECTION 5. The Principal Justice shall have a termof twelve years ; but if at any time he be disabledfrom continuing in office, as may be determined bythe Senate, or if he resign, he shall be replaced bythe senior member of the Judicial Council until a newselection be made. After six years the Assembly maydetermine, by a two-thirds vote, that he may notcontinue in office.

SECTION 6. The Principal Justice may suspend mem-bers of any court for incapacity or violation of rules ;and the separation shall be final if a majority of theSenate agree .

For each court he shall appoint a senior memberwho shall preside .

SECTION 7 . As a presiding judge may decide, withthe concurrence of the senior judge of his court,criminal trials may be conducted either by investiga-tory or adversary proceedings, and whether thereshall be a jury and what the number shall be ; butinvestigatory proceedings shall require a bench ofthree.

He may also provide for pre-trial proceedings .The rules shall preclude the putting twice in

jeopardy of any accused for the same offense or punish-ment imposed if the accused be diseased or incompe-

tent. They shall also preclude failure to inform theaccused of charges, to allow confrontation of wit-nesses against him, or to call witnesses in his favor ;but they shall provide for the enforcement of decorumduring proceedings .

The accused shall have speedy trial and competentcounsel ; and the court shall consider his belief thatthe statute was invalid or unjust .

He shall not be compelled to be a witness againsthimself.

SECTION 8. In deciding on concordance with theConstitution, the High Court of the Constitution shallreturn to the House of Representatives statutes itcannot construe, and clarification shall be madewithin ninety days. If the House fail to make returnthe Court may interpret .

SECTION 9. The Principal Justice, with the JudicialCouncil, or the President, may grant pardons orreprieves for offenses against the United Republics .

SECTION 10. The High Courts shall have thirteenmembers; but nine members, chosen by their seniorjustice from time to time, shall constitute a court .The justices on leave shall be subject to recall .

Other courts shall have nine members ; but seven,chosen by their senior, shall constitute a court .

All shall be in continuous session except for re-cesses approved by the Principal Justice .

SECTION 11 . The Principal Justice, with the HighCourt of the Constitution, shall advise the Senatewhen requested concerning the constitutionality ofmeasures approved by the House of Representatives ;he may also advise the President, when requested, on

77

matters involving constitutionality . Advisory opinionsshall thereafter govern the Court's decision .

SECTION 12. It shall be for other branches to acceptand to enforce judicial decrees .

SECTION 13 . The High Court of Appeals may selectapplications for further consideration of decisionsreached by other courts including those of the Re-publics. If it decide that there be a constitutional issueit shall assume jurisdiction . Its decisions may bereviewed, without hearing, and finally, by the HighCourt of the Constitution.

SECTION 14. The High Court of the Constitutionmay decide :

78 a) Whether constitutional powers delegated by thelegislature to any agency are excessive or are lessthan necessary for its mission .b) Whether constitutional provisions have beenviolated in litigation coming to it on appeal .c) On the application of constitutional provisionsto suits involving the Republics .d) Suits involving international law as recognizedin treaties, United Nations agreements, or anyarrangements between members of the United Re-publics and other nations or their representatives .e) Other causes involving the interpretation of con-stitutional provisions, except that in holding anybranch of government to have exceeded its powers,the opinion shall be reviewed finally by the Senate .

SECTION 15 . The Courts of the Republics shall haveinitial jurisdiction in cases arising within their bordersexcept those involving the Republic itself or those

reserved for national courts by a rule of the PrincipalJustice with the Judicial Council .

ARTICLE VIII

General Provisions

SECTION 1 . Qualifications for participation in demo-cratic procedures as a citizen of the United Republicsand eligibility for national offices shall be subject torepeated study and to redefinition by law ; but anychange in qualification shall become effective only ifnot disapproved by majority vote at a subsequentgeneral election .

79

For this purpose a permanent Citizenship andQualifications Commission shall be constituted, fourto be appointed by the President, three by the Pro-vost, three by the Speaker, and three by the PrincipalJustice . Vacancies shall be filled as they occur . Theyshall choose a chairman ; they shall have suitableassistants and accommodations; and they may haveother occupations . Recommendations of the com-mission shall be presented to the President and shallbe transmitted to the House of Representatives by thePresident with his comments . They shall have a pre-ferred place on the calendar, and if approved theyshall go to referendum .

SECTION 2 . Citizens' freedom of expression, of move-ment, or of communication shall not be abridgedexcept in emergency as defined in this Constitution ;but the exercise of these rights may not diminish the

rights of others or of the public ; conflicts in theexercise of rights or questions concerning them andoffenses against the public interest, adjudicated incourts of immediate jurisdiction, may be appealed toCourts of the Republics and to the Court of Rightsand Duties.

SECTION 3. Every citizen's right to practice, religionshall be guaranteed ; but no religion shall be imposedby some on others ; and no religion shall be encouragedby the government .

SECTION 4. The writ of habeas corpus shall not besuspended except in declared emergency .

SECTION 5. The privacy of individuals shall berespected ; searches and seizures shall be made only

so on judicial warrant ; persons shall be pursued orquestioned only for the prevention of crime and theapprehension of suspected criminals, and only ac-cording to rules of the Court of Rights and Duties .

No property shall be taken except for a publicpurpose, by due process and with compensation .

SECTION 6. It shall be public policy to promote dis-cussion of public issues and to encourage peacefulpublic gatherings for this purpose; and permission tohold such gatherings shall not be denied, nor shallthey be interrupted by public authorities except indeclared emergency or on a showing of imminentdanger to public order and on judicial warrant ; butsuch gatherings shall be protected against disruption .

SECTION 7 . Individuals and enterprises holding them-selves out to serve the public shall serve all equallyand shall be held to fairness in their practices ; citi-

zens' complaints shall be attended to by the Watch-keeper, who may require compliance and compensa-tion; but there may be appeal to the Court of Rightsand Duties .

SECTION 8. The use of public lands, the air, orwaters shall be a privilege granted only in the na-tional interest and with restrictions imposed byauthorized agencies .

SECTION 9. Any citizen may purchase, sell, lease,hold, convey, and inherit real and personal property,and shall benefit equally from all laws for the securityof person and property ; but he shall be equally liableto penalty, any statute, ordinance, regulation, or cus-tom to the contrary notwithstanding, except as maybe determined by the Court of Rights and Duties .

SECTION 10. No person holding any office may ac-cept any award or title from a foreign state or itsrepresentatives except it be authorized by law .

SECTION 11 . All those entering the service of theUnited Republics shall be chosen, under rules ofservice approved by law, for specific capability andwithout discrimination for any other reason .

SECTION 12 . No person shall bear arms or possesslethal weapons except police, members of the armedforces, or those licensed under law according to rulesestablished by the Court of Rights and Duties .

SECTION 13 . Areas necessary for the uses of govern-ment may be acquired at its valuation and may bemaintained as the public interest may require ; valua-tions may be appealed to the Court of Claims. Such

81

areas may have self-government in matters of localconcern .

SECTION 14. The President may negotiate for theacquisition of areas outside the United Republics,and, if the Senate approve, may provide for theirorganization as Possessions or Territories .

SECTION 15. The President may make agreementswith other organized peoples for a relation other thanfull membership in the United Republics . They maybecome citizens and may participate in the selectionof officials . They may receive assistance for theirdevelopment or from the National Sharing Fund ifthey conform to its requirements ; and they may servein civilian or military services, but only as volunteers .They shall be represented in the House of Representa-

82 tives by members elected at large, their number pro-portional to their constituencies ; but each shall haveat least one; and each shall in the same way chooseone permanent member of the Senate .

SECTION 16. The President, the Vice Presidents, andmembers of the legislative houses shall in all casesexcept treason, felony, and breach of the peace, beprivileged from penalty for anything they may saywhile pursuing public duties ; but the Judicial Councilmay make restraining rules .

SECTION 17 . Except as otherwise provided by thisConstitution, each legislative house shall establish itsrequirements for membership and procedures to in-sure against conflicts of interest . Each may makerules for the conduct of members, and provide itsown disciplines for their infraction .

SECTION 18 . No Republic shall abridge any of therights, immunities, or liberties granted in this Con-stitution to citizens of the United Republics or shallinterfere with its officials in the performance of theirduties and all shall give full faith and credit to theacts of other Republics and of the United Republics .

SECTION 19. Public funds shall be expended only asauthorized in this Constitution.

ARTICLE IX

Governmental Arrangements

SECTION 1 . Officers of the United Republics shall bethose named in this Constitution, including those ofthe legislative houses and others authorized by lawto be appointed ; they shall be compensated and nonemay have other paid occupation unless they be ex-cepted by law; none shall occupy more than oneposition in government; and none shall accept anygift or favor.

No income from former employments or associa-tions shall be put aside for their benefit ; but theirproperties may be put in trust and managed withouttheir intervention during continuance in office ; hard-ships under this rule may be considered by the Courtof Rights and Duties and exceptions may be madewith due regard to the general intention .

SECTION 2. The President, the Vice Presidents andthe Principal Justice shall have households appropri-

83

ate to their duties . The Vice Presidents, the PrincipalJustice, the Chairman of the Planning Board, theRegulator, the Watchkeeper, and the Overseer shallhave salaries fixed by law and they shall continuefor life ; but if they become members of the Senate,they shall have senatorial compensation and shallconform to its requirements .

Justices of the High Courts shall have no term ;and their salaries shall be two-thirds that of thePrincipal Justice ; they, and members of the JudicialCouncil, shall be permanent members of the judiciaryand shall be available for the assignment to duty bythe Principal Justice .

Salaries for members of the Senate shall be thesame as for Justices of the High Courts .

SECTION 3 . Officials designated by the head of a84 branch as sharers in policymaking may be appointed

by him with the President's concurrence and unless theSenate shall object .

SECTION 4. There shall be administrators :

a) for the offices and official households, appointedby a standing committee of the Senate ;b) for the national courts, appointed by the ChiefJustice ;c) for the Legislative Branch selected by a com-mittee of members from each house (chosen by theProvost and the Speaker), three from the House ofRepresentatives and four from the Senate .

Appropriations shall be made to them; but thosefor the Presidency shall not be reduced during histerm unless with his consent ; and those for the Judi-cial Branch shall not be reduced during five years

succeeding their determination, unless with the con-sent of the Chief Justice.

SECTION 5 . The fiscal year shall be the same as thecalendar year, with new appropriations available atits beginning ; but if any remain to be acted on, pro-visions for the year preceding shall be in effect untilaction shall have been taken .

SECTION 6. There shall be an Officials' ProtectiveService to guard the President, the Vice Presidents,the Principal Justice, and other officials whose safetymay be at hazard ; and there shall be a Protector ap-pointed by a standing committee of the Senate andhe shall be responsible to it . Protected officials shallbe guided by procedures approved by the committee .

The service, at the request of the Political Over-seer, may extend its protection to candidates foroffice; and they shall conform to uniform rules forpublic appearances .

SECTION 7 . A suitable contingency fund shall bemade available to the President for purposes definedin resolutions of the House of Representatives.

SECTION 8 . The Senate shall try other officers ofgovernment than legislators when impeached by atwo-thirds vote of the House of Representatives forconduct prejudicial to the public interest . If Presi-dents or Vice Presidents are to be tried, the Senate,as constituted, shall conduct the trial . Judgmentsshall not extend beyond removal from office and dis-qualification for holding further office ; but the con-victed official shall be liable to trial according to law .

SECTION 9. Members of legislative houses may be

85

impeached by the Judicial Council ; but for trial itshall be enlarged to seventeen by Justices of the HighCourts appointed by the Principal Justice . If con-victed, members shall be expelled and be ineligiblefor future public office ; they shall also be liable fortrial as citizens.

ARTICLE X

Amendment

SECTION 1 . It being the special duty of the JudicialCouncil to formulate and suggest amendments to thisConstitution, it shall, from time to . time, make pro-

86 posals, through the Principal Justice, to the Senate .The Senate, if it approve, and if the President agree,shall instruct the Overseer to arrange at the nextnational election for submission of the amendment tothe electorate. If not disapproved by a majority, itshall become part of this Constitution . If rejected, itmay be restudied and resubmitted .

SECTION 2. When this Constitution shall have beenin effect for five Presidential terms the Overseer shallask, by referendum at the succeeding election,whether a new Constitution shall be prepared . If amajority so decide, the Council shall prepare a newdraft, approved by the Senate, for submission at thenext election . If not disapproved by a majority itshall be in effect. If disapproved it shall be redraftedand resubmitted with such changes as may be ap-propriate to the then circumstances, and it shall besubmitted to the electorate .

If not disapproved by a majority it shall be ineffect. If disapproved it shall be restudied and re-submitted .

ARTICLE XI

Transition

SECTION 1 . The President is authorized to assumesuch powers, make such appointments, and use suchfunds as are necessary to enable this Constitution tobecome effective as soon as possible after ratification .

SECTION 2. Such members of the Senate as may beat once available shall convene and, if at least half,

87

shall constitute full membership while others arebeing added. They shall appoint an Overseer toarrange for electoral organization and elections forthe offices of government; but the President and VicePresidents shall serve out their terms and then be-come members of the Senate . At that time the Presi-dency shall be constituted as provided in this Con-stitution .

SECTION 3 . Until each indicated change in the gov-ernment shall have been completed the provisions ofthe existing Constitution and the organs of govern-ment shall be in effect .

SECTION 4 . All functions of national governmentshall cease when and if they are replaced by othersauthorized under this Constitution as determined bythe President .

The President shall cause to be constituted a com-mission of appropriate size to designate existing lawsinconsistent with this Constitution and they shall bedeclared null and void by the President ; also thecommission shall assist the President and the legis-lative houses in the formulating of such laws as maybe consistent with the Constitution and necessary toits implementation .

SECTION 5 . For the establishing of the Republics'boundaries a commission of thirteen, appointed bythe Principal Justice of the United Republics, shallmake recommendations within one year. For thispurpose they may take advice and commissionstudies concerning resources, population, transporta-tion, communication, economic and social arrange-ments, and such other conditions as may be signifi-

es cant. The Principal Justice shall transmit the com-mission's report to the Senate after entertaining, ifconvenient, petitions for revision . If not objected toby the Senate, his recommendations shall be in effect .

Existing states shall not be divided unless metro-politan areas extending over more than one state areto be included in one Republic, or unless other com-pelling circumstances exist; and each Republic shallpossess harmonious regional characteristics .

SECTION 6 . Constitutions of the Republics shall beestablished as shall be arranged by the Judicial Coun-cil and the Principal Justice .

These procedures shall be as follows : Constitutionsshall be drafted by an assembly of the highest courtsof the states to be included in each Republic . Thereshall then be a convention of one hundred delegateschosen in special elections in a procedure approved

by the Overseer. If the convention shall not rejectthe Constitution it shall be in effect and the govern-ment shall be constituted . If it be rejected, thePrincipal Justice, advised by the Judicial Council,shall promulgate a Constitution and initiate revisionsto be submitted for approval at a time he shallappoint. If it again be rejected he shall promulgateanother, taking account of objections, and it shall bein effect. A Republican Constitution, once in effect,shall be valid for twenty-five years, when revisionprepared by its Judicial Council shall be referred toits electorate; if not approved it shall be revisedagain and submitted at a regular election .

SECTION 7. Until Governors General and legislaturesof the Republics are seated, state governments shallcontinue in their functions except that the Presidentmay appoint temporary Governors General to act as

89executives until succeeded by those regularly elected .These Governors General shall succeed to the execu-tive functions of the states as they are merged in theRepublics .

SECTION 8 . The indicated appointments, elections,and other arrangements shall be made with all de-liberate speed .

SECTION 9 . The first Judicial Assembly for selectinga register of candidates for the Principal Justiceshipof the United Republics shall be called by the in-cumbent Chief Justice immediately upon ratification .

SECTION 10. When this Constitution has been imple-mented appropriate parts of this article shall bedeleted .

CALENDAR : THE GOVERNMENT YEAR

first Tuesday

Primary Dayfirst Tuesday

District conventionsfirst Tuesday

Nationalconventions

1st

Submission of plansto PlanningBranch byRepublics

first Tuesday

National Electionsfourth Tuesday Notification of

global expendituresfor the next fiscalyear

second Tuesday Convening of thelegislative houses

third Tuesday

Presidentialinauguration

fourth Tuesday

Submission of six-and twelve-yearplans, togetherwith annualbudget, to thePresident

first Tuesday

State of the UnionMessage

1st

Submission by thePresident to theSenate of devel-opmental plansand to theHouse ofRepresentativesof the annualbudget

first Monday

Return of budget tothe PlanningBoard if there beobjection

first Monday

Return of recon-sidered budget

1st

Fiscal year begins

1 . March2 . April3 . May

4. June

5 . June6 . June

7 . July90 8 . July

9 . July

10 . August

11 . September

12. October

13 . November

14. January

INDEX TO THE CONSTITUTION

Acquisition of areas by government 70,82Administrator 73, 74, 75, 84Adversary proceedings 76Affiliated Republics 68Amendment 76,86Annual Budget 52, 53, 62, 66, 67Appropriation, procedure 84,85Arbitration 70Armed forces 58, 70, 81Arms 81Arts and sciences, encouragement of 54,69

91Assembly, freedom of 80Authorities, industrial 54, 55, 72, 73, 74Awards and titles 81Bills 65Boundaries, Republics' 88Budgets 52, 53, 54Cabinet 59Calendar year 85,90Campaigns 51,63Chairmen 53, 61, 71, 74, 79Chairmen-at-largeChancellors

65

- civil, diplomatic 61- of Financial Affairs

52, 55, 57, 64, 68, 72, 73- of Foreign Affairs 57- of Legal Affairs 58- of 58,70Military Affairs

Change in government 86,87Chartering powers 45,46Charters, for corporations / enterprises 72- codes 72- non-profit corporations 73

Chief Justice 85,89Citizens- complaints 81- freedoms 70, 80, 81

- rights and duties 79, 80, 81, 82, 83Citizenship and Qualifications Commission 79Civil and criminal codes 76Civilian services 82Coinage of money 46,68Collective bargaining 70Commerce 68Committees 65,72Communications 68, 79, 88Complaints 81Conflict of interest 72,83Conservation (air, soil, natural resources) 69,70Constitution, amendment 76, 86, 87- for Republics 88,89- interpretation and revision 89

Contributions, political 51,73Conventions- national 50- district 49

Council 59Courts

- Circuit Court 74,75- Court of Administrative Settlements 71, 73, 74- Court of Arbitration Review 70,74- Court of Claims 55, 70, 74, 8192 - Court of Rights and Duties 70, 73, 74, 81, 83- Court of Tax Appeals 74

74,78- High Court of Appeals- High Court of the Constitution 74, 77, 78

Courts, general 58, 77, 78, 80- decisions required 78- interpretation of statutes 77- membership 77,84- salaries 84- suspension 76

Criminal codes 76Criminal trials 76,77Cultural activities 54, 60, 69Debt service 55Delegates 88Deputies 59,65Development plans 53,54Development violation 55Discrimination 80Ecology 73Economic and social arrangements 88Educational facilities 69Elections 47, 59, 86, 87, 89Electoral Branch 47-52Electorate participation 47-52Emergency, limited 63

Emergency, nationalEnvironmentEstablishment of RepublicsEstimatesExpenditures

46,64,

58, 63, 6769, 70, 78

45"56

- auditing -52- parties 51- public funds 84

Exports, taxation 47,68Expression, freedom of 79,80Family, size of 70,71Finances (regulation) 68Fiscal year 66,85Freedom (expression, communication, assembly,

movement, religion, pursuit, search, seizure) 79-83Government acquisition (areas) 82Governmental arrangements 83 - 86Governors General 45, 52, 58, 61, 89Habeas corpus 80High Court 62- of Appeals 74- of the Constitution 74

Historic places 69,70House of Representatives 64-71- candidate nomination 49,50

93- convention 52- duties 65-70,84- involvement 53, 60, 62 - 71, 77, 79, 82, 85- members-at-large 51,82- membership qualifications 64,79- Speaker 65, 79, 84

Impeachment 85Imports, taxation of 47,68Inauguration 51Industrial disputes 70Institutions 57, 68, 69Insurance against risks and liabilities 68Intendant 56, 60, 72International agencies 56, 68, 69International law 78Judicial Assembly 74,89Judicial Branch 74-78,84Judicial Council

62, 75, 76, 79, 82, 84, 86, 88, 89Jury 76Justice, Principal 74 - 77, 83, 85, 88, 89Justices of the High Court 84,86Legislative Branch 61 -70,84- House of Representatives 64-70- Senate 61 - 64

Legislation (approved) 66Legislative houses 82, 83, 85

Legislators 57Libraries, museums, archives, monuments 69,70Local self-government 82Maps (official) 55Mergers 73Metropolitan areas 88Military service 58,82Minority leaders 65Monetary system 46, 57, 58National emergency 63.National Regulator 71 - 74

71 - 73National Regulatory BoardNational Security Committee 58National service 58National Sharing Fund 68,82National Watchkeeper 63,64Natural resources 69,70Non-governmental activities 54Non-profit corporations / foundations 73Non-taxable contributions 73Ocean development 69Office of Emergency Organization 60Officers of United Republics- emoluments, restrictions

83,84Offices for Intelligence and Investigation

6094 Officials' Protective Service 85Overseas operations 73Overseer 47 - 52, 59, 61, 84, 86, 89Pardons / reprieves 77Parties- district 47,48- national 47,48

Party conventions 63Petitions 88Planning administrator 53Planning agencies 54Planning Board 52 - 56, 66, 71, 84Planning Branch 49, 52 - 56, 67Planning - official maps 55Plans 52-56Police 46,81Policymaking 84Population 56, 71, 88Possessions / Territories 68,82Preamble 44Pretrial proceedings 76Presidency 56-61

- acting 59- appointments by 53

death 57- disability 58,59

= household

83- inauguration

51- involvement

56-61,63,66,67,69,71,77,79,82,87-89- nomination 50,51- privilege from penalty 82- qualifications 58- terms and responsibilities 56

Principal Justice 61, 62, 74 - 77, 79, 84Privacy of individuals 80Property, personal 81Protective Service, for officials 85Protector 85ProvostPublic convenience facilities

62, 64, 75, 7968

Public Enterprise Commission 74Public funds 84Public gatherings 80Public interest 55, 60, 64, 68, 70, 72, 81Public land use (air, waters) 81Public property 70Public services, administration of 46Qualifications for office 79Quotas 68

70Recreational facilitiesReeducation (for obsolescent occupations) 69

95Register of candidates 89Regulated enterprise 71,72Regulator 57, 71 - 74, 84Regulatory Board 71 - 73Regulatory Branch 71 - 74Regulatory Commission 74Religion, freedom of 70,80Republics 45 - 47Republican Guards 58Resolutions 63Revenue department 67Rules of service 80Salaries, official 83Savings institutions 68Sciences, encouragement of 54, 60, 69Search and seizure 80Seas (development) 69Security exchanges 72Senate 61 - 64- conventions 63- duties 62- involvement

47, 48, 53, 54, 57 - 64, 71,75 - 77, 82, 84 - 88

- membership 61- Provost 62- vacancies 62

96

Senior Justice 75,76,,77Social / economic arrangements 88Space (development) 69Speaker 79,84State governments 88State of nation 57States, division of 88Stoppage or hindrance of government activities 70Suspension of Court members 76Suspension of rights, duties, officials 47Taxes 46,66

- contributions 73- exemptions 67- expenditure 68- exports, imports 47,68-foundations 73-limits established 67- rates 66,67- religious establishments 67

Technical training 69Territories / Possessions 68,82Titles, honors 66,81Transition 87 - 89Transportation facilities 68,88Treaties / Agreements (with other nations) 57, 59, 78Treaties and alliances of Republics 46Trials, rules for 76,77- for government officials 85,86

Trust funds 55,67United Nations 78Vice Presidency- disability 57- duties 57, 58, 59- of General Affairs 57- household 83- inauguration 51- of Internal Affairs 57,58- involvement 59, 61, 63, 87- nominations 51, 57, 58- privilege from penalty 82- salary

83Vice Provost

62Voluntary service

70,82Voting enrollment

49Voting participation

52Watchkeeper

47, 52, 57, 63, 64, 71, 81, 84Weapons, prohibition of individual

81Welfare

69Withholding

67World order (interest in)

68Writ of habeas corpus

80

DRAFTINGA MODELCONSTITUTIONAN INTERVIEW WITH REXFORD G . TUGWELL

Q. Mr. Tugwell, in what sense is it correct to callthis the "Tugwell Constitution"?

TUG WE LL : We all tend to personalize something likethis. The fact is that when I came to the Center somesix years ago, I adopted as my project, with the consent

of everybody, a study of the Constitution or, moreaccurately, a study of constitutionality. As is custom-ary at the Center, I began by writing papers and pre-senting them to the Fellows for discussion . These dis-cussions produced criticisms and suggestions and thesewere used in redrafting and in rewriting the supportingpapers. After a while, we decided that we couldsharpen our dialogue and focus our discussions betterif we tried to make a model. So, even though I had nolegal training - being a political scientist, not a law-yer- I began to study the style and form of constitu-tions, and especially our own. This was not new forme. I had begun the study of constitutional law as farback as my sophomore year in college, and my doc-toral dissertation had been a constitutional study . Thismethod of procedure did sharpen our discussions . Butthat first draft and I should say the next ten or twelvedrafts were hopelessly amateurish . The drafting wasbad, and the ideas were not clearly expressed . It hadto be done over and over . Gradually we did come by

97

98

this method to a much better statement of what it waswe would like a constitution to be .

Q: So this model constitution is really a collaborativeproduct, then, from many discussions and rewritingover a period of five or six years .

TUGWELL : Yes. It can be attributed to me only in thesense that I was the one who did the drafting . I took onthe job of writing and rewriting what was suggested bythe group .

Q: You selected the criticisms and suggestions youthought were valid and incorporated those into themodel?

TUGWELL : That's right . I might say that the criticismsI got from the late Scott Buchanan were general andquite profound . He and I had many long discussions .But the person in the group who knows most about thiskind of enterprise and who has followed the SupremeCourt's interpretation of the Constitution for manyyears is Robert Hutchins . I always felt that his evalua-tion of the model would be the one that would prob-ably come closest to being the kind of thing we wantedto achieve . The model being published, I am sure, doesnot satisfy him completely but then it is not thought byhim, by me, or by anyone to be perfected .

Q: Did you have the benefit of consultations with peo-ple outside the Center?

TUGWELL : I did at a later stage. I began to write tofriends who were lawyers and teachers and asked forsuggestions . They helped me technically in drafting .I should particularly mention my old friend Monroe

Oppenheimer. He was general counsel for the Reset-tlement Administration in the nineteen-thirties and hasbeen a practicing lawyer in Washington since . He spentmuch time and gave much thought to the model. Notonly that, he read all the background papers and mademany suggestions . Later still, I sent some correspon-dents sections of the thirty-fifth and thirty-sixth draftsand asked them for suggestions . Generally, I must say,they didn't think much of the whole enterprise .

Q: Why?

TUGWELL : There is a great deal of resistance to doinganything about the Constitution at all . That resistanceis all but universal among lawyers and almost as gen-eral among political scientists .

Q: Is that because they feel you're tampering with

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something sacrosanct?

TuGWELL : Partly that's it . Partly it is the convictionthat any document that has lasted for a hundred andeighty-one years, as our Constitution has, must havepermanent virtues. Another reason for contemporaryresistance to a new constitution goes back to theMcCarthy era of the nineteen-fifties . The feeling wasthat anything done to the Constitution must turn outto be bad, that, for example, our Bill of Rights wouldprobably disappear. The feeling is that the presentConstitution protects essential liberties. Of course, wedon't want to give them up either . But I think there aregood reasons for feeling that there ought to be anexpansion . In the first place, the present Constitutionsays a great deal about what the government may notdo. That, of course, is exclusively a protection of citi-zens from government . It says nothing about the duties

of citizens to government. We have reached the stage,I think, where the Constitution should require that citi-zens make contributions and have duties as well as beprotected .

Q: You're willing, then, on the basis of that conviction,to take the risk that a new constitution might be cap-tured by reactionary elements in our society?

TUGWELL :You put that in a way that we never allowedourselves to put it in our discussions at the Center . Wenever allowed ourselves to think that we were draftinga constitution that would ever be adopted as writtenby us. We thought of our drafted model as an instru-ment for sharpening our discussions and our thinkingabout what a constitution should be and do .

100 Q: Now that you have finished it, though, are you get-ting excited about the possibility that it might actuallybe thought of as a viable document, as . . .

TUGWELL : It's not finished. The thirty-seventh draftof it is about to be printed . But I would hope that thediscussion of it would go on and on . For example,I believe that the definition of a citizen's duty to hiscountry should be somewhere in the Constitution . Wehave tried to do that in our model ; we did it one way.But I don't know if that is the best way . It doesn't seemtoo bad at the moment, but I am sure others will havedifferent suggestions .

Q: Though your constitution is not finished and, in asense, can never be, you have it in a pretty good formnow. Has the thought crossed your mind that perhapsit could become something more than a model or adiscussion instrument?

TUGWELL: Anything you have worked over as long asI have worked over this, and anything that has beendiscussed and criticized for so long a time is bound tobe thought pretty good . But I must quickly add that Ithought that same thing back about the twenty-fifthversion or so, and that I changed my mind and madesubstantial revisions in subsequent drafts .

Q: At the time you began work on this six years ago,it must have seemed to some - at least to some con-servatives-to be an outrageously radical idea. Today- the pace of political life being what it is - it mustseem to many young radicals insufficiently radical .Your project seems to be an effort, within the system,to make democracy work . Would you agree that yourproject is within the mainstream of the American polit-ical tradition?

TUGWELL : I think the project is radical in the sensethat it makes many departures . But I don't considerthat it is radical in the sense of abandoning democratictraditions. It seems to me that any changes that comein the United States will have to end up as some kindof democracy. It may not be the one defined in ourmodel. But I think that in the end the principles ofequality and justice will prevail and that there must bea government capable of carrying out the duties weexpect of it.

Perhaps some young people might think it is not rad-ical enough, but I would call their attention, for in-stance, to the practical giving up of states' rights . Whatyou must remember is that the original document wasa series of compromises and not necessarily satisfactoryones. One of these compromises was that the stateskept residual sovereignty . In our draft constitution, thecentral government has the residual power because it

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has gradually become apparent that, with the spread oftechnology, the conquest of the continent, instant com-munications, and swift continental transportation, thestates have become obsolete as operating entities . Toregard them as sovereign any longer is anachronistic .

Q: In essence, then, what you are trying to do is makedemocracy work, make it more effective .

TUGWELL : Yes. I am afraid I am a convinced demo-crat; I think we all are. I don't see any other way forindividuals to have equal opportunities - both politi-cal and economic - or see how the system of justice,so deep in our tradition, can be made operative by anyother political arrangement .

Q: If your constitution is meant to replace the present102 Constitution, it does represent a clean break . What

effect do you see that having on the national conscious-ness, the national memory, the national tradition?Is it possible that people might feel they have been cutadrift because they have thought of the Constitutionas a kind of rock on which they had been standing?

TUGWELL : Again, that question is based on the as-sumption that we expect this draft model to be takenin toto and substituted for the present Constitution .That is not the way any constitution I have ever heardof was shaped . This model is merely a collection ofsuggestions about what ought to go into a constitutionadequate for the contemporary situation . In more opti-mistic moments I think of ourselves as being likeMadison, who after years of study formulated theVirginia Resolutions .

Q: But you are not suggesting that the way to get a

new constitution is to graft, say, this model onto thepresent one?

TUGWELL : No. But it could happen that the presentsystem of government would prove so obstructive andwould fail so abysmally to meet the needs of a conti-nental people and a great power that general recogni-tion of the crisis would occur . There might then be aredrafting of the basic law, and, if so, then it might bethat this model we have worked over for a number ofyears might be taken into account . We are really muchmore modest about this than people who do not liketo hear anything about changes in the Constitutionthink we are.

Q: A central problem in any constitution-making, orconstitution-building, seems to be the problem ofpower, how power is distributed in a society, what

103restraints should be imposed on power, how power canbe channeled for the greatest public good. How doesyour constitution meet that problem?

TUGWELL : Power is something that can't be modified ;it can be distributed and restrained but not modified .Each person has certain powers, and it is recognizedthat each person's power must be restrained so thathe can get along with other people . It is the same withgovernment. The government must have certain pow-ers. The question is how well these powers are usedand how they are distributed among those who usethem. In our draft, we have kept the old principle ofseparation that is so basic to our present Constitution .That principle goes far back in Western tradition ; theseparation of executive, legislative, and judicial powersis not a recent invention . The difficulty with the distri-bution of those powers in our present Constitution is

that the framers left too much to be decided in thefuture. There were too many silent areas, too much"no man's land ." As time went on, of course, this ledto a kind of invitation to competition for power be-tween the three branches of government. That compe-tition has occasionally turned into something like tur-moil. I think that the distribution of powers can bedefined somewhat more usefully than in the framers'draft and we have tried to do that .

Q: How do you answer the criticism that your modelconstitution may be too detailed, that it tries to antici-pate too many difficulties and problems of govern-ment?

TUGWELL : We tend to think today that the agreementin 1787 about the Constitution was much more unani-

104 mous than it actually was. The 1787 convention was atumultuous one. The framers, in the interest of com-promise, actually left a great many things undone; alot of things were left to future development simplybecause they could not agree . So what people todaycall the "admirable brevity" of the 1787 Constitutionwas not quite that, I think. It simply left too much tobe done without any clear authorization or deliberationin origin; and it has been necessary for the SupremeCourt to do what the framers did not do . For easieraccommodation, the amending clause in the 1787Constitution should have been made clearer and theamending process better arranged . As matters turnedout, by consigning the amending process to legislaturesalone, the framers turned it over to what became themost obstructive branch of government . We have triedto correct that in our model .

If we have succeeded in making amendment easierand more responsive to changing circumstances, we

will also have succeeded in making it unnecessary forthe Supreme Court to legislate, in effect, through itsdecisions, or to interpret what Congress means whenit passes laws . The Supreme Court should not be whatChief Justice Warren Burger said recently it is in theway of becoming : a continuing constitutional con-vention.

Q: By making constitutional amendment easier, doyou invite the danger of constant tinkering with thedocument?

TUGWELL : I don't think so . The model provides for thePrincipal Justice, working with the Judicial Counciland the Senate, to initiate amending proposals whenthey seem appropriate . They send these proposals tothe President and he may then authorize the Overseerto submit specific amendment proposals to the elec-

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torate in a direct referendum . Consideration of needfor amendment would be constant .

Q: You may have, then, a great many amendment pro-posals on the ballots, but the people may not actually

adopt very many of them .

TUGWELL: I wouldn't expect that there would be alot of them. But I would think it would be easier inour model to make a judgment as to new situationsthat may require amendment . And, of course, as Isay, our draft does not authorize the courts to interpretwhat a law says . We provide for the court to send ques-tionable legislation back to Congress to get an expla-nation. Of course, if the Congress ignores that request,the Court may act ; but it was not our intention to pre-vent the Supreme Court from interpreting the Consti-tution. Our model does provide that when the powers

of another branch of government are affected, or mightbe affected, by a Supreme Court decision, that has tobe checked and scrutinized by the Senate; but theconstitution is in the custody of the Court just as itis now.

Q: Then your chief argument for a more detailed con-stitution is that by not being silent in so many crucialareas -as the 1787 Constitution is -you make itunnecessary for the Supreme Court to interpret, or toengage in legislation-through-interpretation, or to fillthe vacuum of those silent areas .

TUGWELL : Exactly .

Q: If your model effectively prevented the deleteriousconcentration of political and economic power and if

106' it also provided citizens not only with protection fromthe abuses of governmental power but also with theopportunity really to get into the political process,that would go a long way toward meeting the objec-tions of young people in particular, many of whomhave given up - at least temporarily- the effort toaffect the political life of this country . For example,among the powers and functions of the Watchkeeperin your constitution he must check on the competenceand integrity of governmental agencies and receiveand act on citizen complaints about abuses of power .

TUGWELL : Democracy is not democracy unless thereis participation in it . On the other hand, I haven't seenany way to escape majority rule . But, of course, themajority ought to be a real majority, arrived at afterdue discussion. The Watchkeeper ought to keep themajority from being arbitrary .

Q: In that connection, the Electoral Branch providedfor in your constitution tries to prevent the corruptionof the political process by, among other things, mak-ing campaign funds equally available to qualified can-didates .

TUGWELL : The trouble with our political parties isthat they do not produce actual majorities, only nomi-nal choices between candidates selected in a most un-democratic process .

Q: What do you think are the main reformist effects o fyour Electoral Branch?

TUGWELL: You have already mentioned one of them :our model provides that all campaign expenditures bepaid for out of public money, and there are very strictlimitations on private expenditures on behalf of can-

107didates. This should have the effect of making it im-possible for elections to be in effect bought by largecontributors who expect to get something back fromsuccessful candidates for having contributed money totheir campaign .

Q: But no constitution can prevent private citizensfrom spending their money, if they wish to, on behalfof particular candidates, can it?

TUGWELL : That's right, but we do require that anyactivity of that kind be publicly reported so that thepeople may know who is interested in which candi-dates and to what extent . Another thing our modeldoes is make it compulsory for the electoral machineryto permit and facilitate public discussion of the greatpublic issues . No government can force people to be-

come interested in a political campaign or to take partin the discussion and study of the issues . But I think wehave gone as far as is possible in making such discus-sion possible .

Q: By bringing political parties, as such, under consti-tutional law in your model you would have the effectof holding them to some standards of fairness andresponsibility .

TUGWELL : Yes. The framers in 1787 did not believein partisanship . They didn't provide for political par-ties at all . They only provided an electoral procedurefor the Presidency. The framers also provided that thestates should determine the processes of congressionalselection . The federal government was empowered todo something about that, but it never has ; we have

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made it mandatory .

Q: Do you think your constitution does enough totackle the task of informing public opinion? The no-tion that in a self-governing democracy the people willjudge, and correct, and direct their leaders dependsfor its practical validity on the quality and quantity ofthe information the citizens get on the great publicissues, the public affairs of the day . Until now, we haveleft this informing process to the commercial media -newspapers, magazines, radio, television . The com-mercial media have proved that they can do a superiorjob of informing the people on public affairs, but theyhave also proved to be inferior and spotty . Do you seeany need for, say, a kind of public information service,funded but not controlled by the federal government,to supplement the commercial media?

TUGwELL : I think that would be a very good thing .

The British Broadcasting Corporation was set up forthat purpose but, you know, the British decided, espe-cially after the coming of television, that it would notbe good for government to have a monopoly over thecommunications media. So they did provide for theestablishment of an independent television networkalong with the B.B.C .

Q: I was also thinking of the print media .

TUGWELL : I don't think we have a problem there . I'vefelt that way ever since I saw what happened to F . D .Roosevelt. Eighty-five per cent of the press was againsthim, but the people said that if the newspapers areagainst him, he must be all right . People are a littlemore sophisticated and intelligent than we give themcredit for being in these matters .

Q: I was thinking not so much about the press's edi-torial positions as I was about their informing function .It happens so often, for example, that quite importanthearings are held in Washington on grave public is-sues, and the commercial media do not even botherto attend them much less make an effort to file anintelligent report on them. As a result, the citizens justdo not receive the information they need in order toform an intelligent and critical public opinion on theissues.

TUGWELL : The only alternative is to have the govern-ment put out the information and then it would be onlywhat it wanted to be seen or heard .

Q: That is the question : Do you think the governmentcould fund a public information service but be effec-tively prevented from controlling the content of it, or

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"managing" the content in a kind of self-serving way?

TUGWELL : I suppose it could . We see it in education .We hear a great deal in this country from some schoolofficials about the evils of governmental control. TheBritish have been successful, however, in their govern-mental support of higher education without the govern-ment controlling the curriculum of the schools . Theyhave a university grants commission in Britain . It dis-tributes public funds to the colleges and universities .The commission is appointed with long terms, andappropriated funds are simply handed over to thecommission and the government has nothing more todo with them . So it is quite possible to have govern-ment support without political interference .

Q: Do you think your constitution should spell this out110

so far as the communication of public-affairs informa-tion is concerned?

TUGWELL : I have thought about that and I have talkedwith other people about it and the opinion has seemedto be that we had better not try to specify that thegovernment can do any particular thing in the informa-tion field .

Q: As you may know, there is considerable talk inWashington these days about the Administration's ac-cess to and increasing use of the national television net-works to present its point of view to the American peo-ple on the controversial issues of the day . The argu-ment one is hearing (from the Democrats of course) isthat the networks can only properly and responsiblyserve public opinion by making their facilities equallyavailable to proponents of differing points of view .The Vietnam war issue is perhaps the most dramatic

example of an issue on which Democratic senators -like Muskie, McGovern, and others - claim that thenetworks are doing the public a disservice by refusingto make free time, or even purchasable time in someinstances, available to opponents of the Nixon Admin-istration's policy .

TUG WELL: What you are asking for is to have thePresident engage in a running controversy with everysenator who wants to challenge him. I think senatorsget plenty of exposure the way things are, maybe toomuch for some of them .

Q: Do you see any danger that a President can manipu-late public opinion through his unlimited access to freetime on the television networks and thus entrench him-self and his party in power?

TUGWELL : I think the opposition to Mr . Nixon at thepresent moment is pretty well stated and publicized . APresident should not be forced to have a running argu-ment with Senator McGovern or Senator Muskie orespecially the chairman of a national party .

Q: How does your model handle the problem o f Presi-dential accountability?

TUG WELL : It doesn't .

Q: Do you think it should?

TUGWELL : The reason the British, for example, havetheir practice of "questions" for the Prime Minister isbecause the Prime Minister is a member of the Houseof Commons. We have opted for a tripartite govern-ment with separated powers . So it is the President's

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option when he wishes to submit himself to questions .Presumably he has to keep public support and if hehas to keep public support he explains himself to thepeople .

Q: But in the intervals between elections, a_ Presidentcan be quite derelict in how he discharges that account-ability responsibility .

TUGWELL : But he really can't . I mean, look what hap-pened to President Johnson . Public opinion in thiscountry organizes itself so powerfully that nobody canwithstand it. You can't make a President better than heis. You could have a better selection process and per-haps get better Presidents ; but having got one he can-not be continually harassed .

112 Q: Of course, in your model you do provide for theforcing of deliberations on the President, but forcinghim to deliberate is not the same as forcing him to ren-der an accounting of his stewardship at intervals .

TUGWELL : That's right .

Q: In that connection, you have objected strenuouslyto the amendment of the present Constitution limitingthe President to two terms on the ground that he thenbecomes, in his second term, a lame duck and there-fore a rather ineffectual President. He lacks leveragewith the legislative branch because the legislators knowhe will be out of office at the end of the term . Yet, yourdraft constitution provides only one term of nine yearsfor the President . Wouldn't you have the same kind ofproblem in that setup?

TUGWELL : You would if the President were expected

to do the same things under our model as he has beenexpected to do until now under the present Constitu-tion. Some of the extraordinary powers the Presidenthas assumed in past crises would, in our model, beperformed by the Senate . Also the President would notbe expected to be a party boss as he is now. He wouldbe expected to be a public leader who would take thelead in legislation as well as in formulating strategy forforeign and domestic policy. Further, the Presidentof our model would not be expected to administer thesepolicies in detail as he is expected to do now, but reallycan't. Finally, we have in our model provision for areferendum after a President has been in office forthree years .

Q: So that puts some pressure on him to be accountableand responsive?

TUGWELL : Yes . If we get a President who is not per-forming the way the people think he should, three yearsis long enough to find that out . If sixty per cent of thevoters think he has not performed well, he will berejected in a referendum .

Q: Then the power a President has, the leverage he has,is only what he can generate out of his own qualitiesof leadership .

TUGWELL : A President gets his power from the people .He can't get it anywhere else . No constitution can giveit to him . If he can't carry the people with him, asLyndon Johnson found out in 1968, he has to give up .

Q: In your formula for qualifying political parties andcandidates for public campaign funding, do you seeany danger of splintering? You provide funding for

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any party that can get two per cent of the votes in eachof thirty per cent of the districts of the nation .

TUGWELL : I believe in the two-party system . I think itworks better than splintered parties as they are foundin some other countries, Italy and France, for instance.On the other hand, I don't think that third partiesshould be prohibited . I think that when they have beenformed in the past and got considerable popular sup-port, they have, in general, had a good effect on thetwo major parties . Often they have caused cleanupsin policy - as the Henry Wallace campaign did inTruman's case .

Q: Of course, your formula would qualify a GeorgeWallace party if it got only two per cent of the vote inthirty per cent of the country . His campaign then would

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be given government funding .

TUGWELL: It should. If that's what the people want,he should get such funding . This is a democracy. Justbecause some of us do not like a particular party orman we should not shut him out of public life .

Q: That must be part of the risk of democracy, then,the risk, in your constitutional model, of funding ademogogue?

TUGWELL : Now that is a very fine distinction . Whenyou are speaking of politicians, who is a demagogueand who isn't?

Q: But you don't see this as leading to a splintering ef-fect among political parties?

TUGWELL : No. It does allow for third parties but it

makes them earn their way . Our draft provides thatthey must get five, ten, and fifteen per cent of the votein the three subsequent elections or they will lose theirpublic money for campaigning .

Q: Your model provides for a number of branches(planning, regulatory) and offices (of Watchkeeper,Overseer, Regulator) which, as far as one can deter-mine, have only recommendatory functions and pow-ers. Do you think you have empowered these branchesand offices sufficiently to overcome what has been oneof the great defects in the history of, say, regulatoryagencies in this country, namely, that the regulatorstend to be controlled by the very industries, associa-tions, and agencies they are supposed to regulate?

TUGWELL : One of the difficulties in the past has beenthat a President could appoint members of regulatory

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agencies but he could not dismiss them ; that has lim-ited the control any President has of the agencies . It isquite accurate to say that, historically, when regulatorsare first appointed they do some real directing of theindustry they are charged with regulating, but gradu-ally they become more supporters of their industrythan controllers of it . Part of the reason for that isthat these agencies are extra-constitutional . Theydo not appear anywhere in the present Constitution, soit is very difficult to find for them any general principlesor any general control .

Q: So by simply putting planning and regulation inyour constitution, you are already giving those agen-cies some constitutional authority .

TUGWELL : Yes, they are, in our model, brought intothe basic law . Regulatory agencies are now so much a

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part of our system that we could not have a pluralisticsociety if we didn't have them . The alternative to freeenterprise regulated by government is, of course, statesocialism .

I happen to believe there ought to be more publicownership than there is . I would have said that manyyears ago the railroads ought to have been taken overby the national government. Now, it seems, they aregoing to have to be taken over because they are bank-rupt. I wouldn't be surprised if the communicationssystems were nationalized as well . But this leaves agreat deal - the steel industry, automobile industry,the textile industry, for example. No matter how theyare allowed to get together for management purposes(and our constitutional model permits that), they canstill operate without government interference if theybehave properly.

Q: How does your constitution keep the regulatorsfrom getting the notion that they are playing on thesame team as the industries they're supposed to becontrolling?

TUGWELL : In our model there is provided a generalregulatory organization not tied to the industries but toa branch of the government . It is provided that theindustries will be controlled by regulatory boards andthese boards have their rules and regulations fromCongress. They simply have to administer them . Evenin the industries that are allowed to have self-govern-ment, so to speak - joint authorities or groups ofchartered enterprises within single industries - theirgoverning bodies would have a majority of publicmembers (three out of five) . The public is considereda senior partner in these organized groups .

Q: And your constitution does provide supervisorypowers. The Watchkeeper, for example, has somethingto say about how the agencies are performing, doesn'the?

TUGWELL : Yes. He has investigatory powers and hecan make public his findings. So I think we have goneabout as far as we can go in the direction of regula-tion and still leave some independence for individualand corporate initiative.

Q: What does your constitution do to meet the prob-lems of science and technology, the problem of howto control the effects of science and technology with-out hampering the scientists' and technologists' legiti-mate freedom to experiment and investigate?

TUGWELL : That is meant to be taken care of by the

117Planning Branch in our model . Its main responsibilityis to anticipate what the technologists are going to pro-duce, try to get it discussed twelve years ahead, tenyears ahead, five years ahead ; and in those years ofcontinuing public discussion, there should emergesome kind of public view of what ought to be done .Then this is finally incorporated in the operating bud-get. This should not hamper the scientists and technolo-gists, but it should bring their inventions and proposalswithin a generally agreed policy .

Q: In your desire to prevent the notorious kind ofHouse obstructionism that has too often marred na-tional government in this country, your constitutionprovides, for example in a budget conflict between theHouse and the Planning Board, that the PlanningBoard's will shall prevail unless two-thirds of the House

overrides its recommendations. Are you perhaps toofearful of simple majority rule? What is wrong witha simple majority rule? Would that lead us back tothe old obstructionist tactics again, necessarily?

TUGWELL : I can't speak in absolute terms on this, butI supposed I borrowed this two-thirds rule from myexperiences in New York City and Puerto Rico . Thatis what we did there. We found that a simple majorityis not enough because frequently there is a very closedivision in a legislature, and then two or three mem-bers can decide an issue and two or three are moreeasily influenced than, say, twenty or thirty . I don'thave any qualms about the Planning Board havingpower because it is what we call, in professional termi-nology, a para-legislative body. Its recommendationswill have been through a considerable legislative pro-

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cess before they ever get to the President and the largerlegislature for approval .

Q: How do you envision the President's function inyour model? On first reading, it seems you have takenquite a few powers from him and left him with thetask of being the inspiration and leader of a nationbut with rather limited authority .

TUGWELL : We have not limited his authority, only hisduties . What has been taken from the President is whatour present Constitution gives him by calling him the"chief executive", meaning that he must try to runeverything. Well, in George Washington's day, heprobably could do that because there wasn't much torun except the Army and the Navy . But today with theenormous bureaucracy in Washington, with hundredsof thousands of workers and agencies and all the ser-vices we now expect government to provide, the Presi-

dent simply cannot do it . So we tried to delete thoseexecutive duties from his immediate responsibilityleaving him only the overall responsibility for shapinggeneral strategy - both in domestic and foreign af-fairs. One of the duties he must not escape is the ini-tiation of legislation . That is a duty the Presidents haveassumed over the years, though it is not authorizedin the 1787 Constitution . It is authorized in our model,recognizing the experience of years .

Q: You do not provide for labor organizations in yourconstitution.

TUGWELL : Not specifically; but it is not necessary .We have provided for what amounts to final arbitrationif workers and industry cannot come to an agreementand a strike is imminent in a very important industry- say the postal service. We provide for settlement by

119a public board . This may be done after all other meansare exhausted. Labor may, of course, organize, andwill be authorized by legislation, but no specific clausein the constitution is needed for any sort of organiza-tion unless it has potential for harm ; then it may beregulated. It has always to be remembered that thereis a distinct difference between constitutional and stat-ute law. A constitution should say nothing it is notessential to say .

Q: It seems that you give considerable power in yourconstitution to the Senate, both in the way it is set upand in its functions . What was your thinking on that?For one thing, the members of your Senate would beappointed, not elected. And they have life terms .

TUGWELL : That is only relatively true . They are ap-pointed, but many of them would have had to have

been elected to some other office in the past, or wouldhave received a substantial percentage of support fromthe people in national elections . Most of its memberswould have proven themselves and I would argue thatsuch a Senate would be more representative of nationalinterests than the Senate we now have . A young manwho has risen to the head of a youth group, for in-stance, didn't get there by accident, or because of hisbirth or wealth ; he got there because he had ability .We would hope our Senate would have only such peo-ple in it and that overall ft would be more widelyrepresentative than the present Senate .

Q: Your senator would have a lifetime tenure .

TUGWELL : Yes, just as at present judges and generalsdo. Our fundamental intention in creating this kind

120 of a Senate has been to create what we do not nowhave, a legislative body whose central interest will bein the nation, not a state or a district . I have been im-pressed by the way senators hold themselves out as thecustodians of the national interest while actually reallytaking care of Missouri or Arkansas or Michigan . It isnot because the senators do not care about the wholecountry ; it is because the Constitution does not en-courage them to think about it . They are encouragedto consider first their home states or districts . Thereshould be representation, somewhere, of the nationalinterest. That is why our model gives senators lifeterms and why they must agree never to have any otherinterest .

Q: How can the nation be protected against an un-scrupulous senator in your setup? What kind of safe-guard do you provide against the senators themselvesbeing corrupted or influenced by special interests?

TUGWELL : There are the usual impeachment proceed-ings, but under our model no senator would have anyinterest in doing anything of that sort. Even under ourpresent system, the subversion of legislators is muchmore subtle than simply handing over money to themfor their votes .

Q: But you are reposing great faith and trust in thatbody, aren't you? And you give it considerable power .For example, the Senate, under your constitution, canprevail over the President in disputes over the six-yearand twelve-year plans ; it can block the Overseer oncertain occasions; it can force advice on a Presidentand make that advice public; it can block treaties; itcan block the Principal Justice's recommendations forboundaries for the new republics .

TUGWELL : But the Senate would have no power to

121initiate legislation . It would have only a blockingpower - for example, a thirty-day delay on proposedlegislation . This would result in more deliberation .And if the Representatives really wanted legislationthey could pass it over the Senate's objection . TheSenate's real power is a sharing with the President ofhis powers, and it is a real sharing. It is generallyagreed, I think, that now the President has too muchpower; and some body, with only the national inter-est in view, must share it with him, if it is to be re-strained. You will notice that the Watchkeeper is re-sponsible to the Senate . The Watchkeeper is, of course,just another name for ombudsman. The ombudsman'sfunction is probably more appropriate in the smallercountries where it has been found in recent years -notably in the Scandinavian countries - than it is ina country of our size and complexity . But I think wehave made the Watchkeeper's duties wide enough in

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our model so that it is not likely that he will spend histime looking for trifling peccadilloes inside of a de-partment. He is much more likely to discover that thedepartment is not doing what it ought to do for thepeople, and to make that public .

Q: How large a group do you think your Senate wouldbe?

TUGWELL : Between seventy and eighty.

Q: And you think of the senators as kind of elder states-men, experienced and elder statesmen?

TUGWELL: Not elder statesmen in the sense of age .But experienced people, knowledgeable, accepted bysubstantial constituencies, and proven to be devotedto the national interest. When an individual accepts asenatorship, that ends his participation in other activi-ties of a private sort . The senatorship is accepted as apublic duty. There is nothing to gain by acceptinganything from anybody. Private holdings are put intrust. A senator cannot get rich, but he won't be pooreither.

Q: So what your constitution does is remove, as far asit is possible, the temptations for a senator to be venal .

TUGWELL: Yes, that is our intention, to remove temp-tation and to focus the senator's attention on nationalproblems .

Q: Why do you have republics instead of states? Anddo the states lose all their identity under your constitu-tion?

TUGWELL : The states have become, administrativelyat least, obsolescent, partly because there have beenso many nationwide developments in communications,transportation, welfare programs, and, of course, largecorporate enterprises . These have thrown more andmore responsibilities on the central government . Statelines are, for all such organizations, irrelevant . Ourwelfare system arose out of a recognition that the re-sources of the whole nation must be shared equitablyby all the people in the nation, not only by those peoplewho happen to be living within the state where partic-ular resources originate. What was needed was largerunits of administration in the interest of the generalwelfare. And what was also needed was the regulatorypower of a national government because business andindustry of all kinds have long since escaped state con-trol .

It is also necessary to set up governmental adminis-trative units using modern management processes, andthe individual states just do not correspond to thosenecessities. So, even if we did not abolish the states aspolitical units, we would have to abolish them as ad-ministrative units in order to get some kind of adminis-trator for government enterprises .

Q: Do the states simply disappear in your model?

TUGWELL : In the ordinary vocabulary of internationallaw, a state is a nation, but, of course, our states are notnations. I prefer the term "republic" for a grouping ofstates which would be administratively viable . Thestates would continue to have an identity within therepublics but no real duties .

Q: Do you have a formula or description of what con-stitutes the administrative viability of a republic?

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Shouldn't other things be considered ingredients alsoof a republic, such as regional similarities, tradition,history?

TUGWELL : It has proved very difficult to determine theprinciples that would guide us in setting up republicsand regions. They don't come out at all clearly . Whatdoes come out clearly is that states are not appropriate .Some larger unit is needed . What is also clear is thatsome smaller unit than the whole country is needed .So we have to experiment with this . I haven't thoughtwe should make a complete commitment . We delib-erately left that to be determined as provided in ourdraft ; but we are making studies of it and hope to reachsome criteria that will be of use .

Q: What in your constitution would prevent a repeti-124

tion of America's intervention in Vietnam and Indo-china?

TUGWELL : In our model, the President cannot declarean emergency and then do as he pleases in foreign af-fairs. Only the Senate can declare an emergency . Ofcourse, even under the 1787 Constitution, the Presi-dent had no power to declare emergencies ; he just as-sumed that he could and it was recognized . Our modelforbids the deployment of armed forces abroad exceptwith Senate approval . But we are living in an atomicage,. and some provision is included for the Presidentto act in the event of an imminent catastrophe .

Q: How does your constitution enable or encourage theUnited States to play a cooperative and contributing,rather than domineering, role in the internationalcommunity? Does it facilitate American efforts to con-tribute positively to a world order, world peace, world

justice? Your document does say that the House ofRepresentatives shall "assist in the maintenance ofworld order." Did you and your colleagues give muchthought to this?

TUGWELL : We gave a great deal of thought to thatquestion. But it is difficult to define what our nationought to consign to a United Nations, should a UnitedNations exist, because we don't know what that wouldbe. That has to remain for definition . About all thatis possible is to express goodwill about joining anyinternational efforts that there may be . It is clear thataid given to other nations should be much more inter-national, or multilateral, than it has been .

Q: Is there anything else you wish to say about thisdraft constitution, anything you think is especiallynoteworthy or significant about it, or about the spirit

125in which it was undertaken?

TUGWELL : Perhaps I may be allowed to say, finally,that we have been guided throughout by two princi-pal considerations . The first was to try for an em-bodiment of essential American beliefs in the sug-gested basic law -the kind we have in our sanerand more reflective moments, the kind we professwhen explaining ourselves to others . These are, Ithink, equality of opportunity; substantial justice ;liberty to act and to undertake enterprises providedthey do no harm ; fair sharing of our affluence ; decentrespect for the rights and feelings of others, not onlyat home but in the rest of the world ; and affirmationthat there are no racial or cultural inferiors, onlydifferences .

The second consideration has been to acknowledgeand contain our expanding technology with all its

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power for good -and for evil too . At the sametime we recognize the necessary scale of modernenterprise and encourage experiment with methodsfor its management.

Both these are sometimes described as pluralism,or more accurately as diversity within unity, justicewith order, sharing with the obligation to contribute .However described, they are the essence of democracy .

You will, perhaps, see what I am trying to say :we have thought that here we have a unique society,developed over a long time . But the government ofthat society has been allowed to become, in somerespects, obsolete and obstructive . We would like tosee it express more completely and precisely whatit is Americans want themselves to be and do, andto be more accommodative to external change .

We think we have been as American as apple pie,but made with the best apples and baked in an elec-tric oven, not one attached to an old firewood stove .

The vital processes of a nation are in some wayslike those of an individual - they progress, theycannot be arrested. And, hard as anyone may try,revision can only go so far; eventually institutionsmust disappear as individuals do, giving way to newgenerations .

Democracies ought not to congeal as dictatorshipsmust; their nature is various and adaptable . Theymay go on into new years and centuries with newinstitutions, but without losing old values, old beliefs,old commitments to mutual respect . Their basic lawought to make this possible . &

EDITOR'S NOTE : What Americansmeant to do, after years of unrest ascolonists in the British Empire, wasdefined in two papers : one was theirDeclaration of Independence in 1776,and the other was the Articles of Con-federation in 1781 .

If they were to become independentthey must have their own government .

Although five years separates theDeclaration from the Articles, bothdocuments were the result of one reso-lution on June 7, 1776 . Acting for theVirginia legislature, Richard HenryLee moved the following resolution inthe Continental Congress :

Resolved, That these United Coloniesare, and of right ought to be, free andindependent States, that they are ab-solved from all allegiance to the BritishCrown, and that all political connec-tion between them and the State ofGreat Britain is, and ought to be,totally dissolved .That it is expedient forthwith to takethe most effectual measures for form-ing foreign Alliances .That a plan of confederation be pre-pared and transmitted to the respectiveColonies for their consideration andapprobation .

An informal vote taken on the firstquestion disclosed that seven statedelegations were in favor of indepen-

THE DECLARATION OF INDEPENDENCE

dence and six were either opposed ornot empowered by their legislatures toact on the matter . At the urging of themore cautious members, the Congresssuspended debate on independenceuntil July 1 . A Committee was ap-pointed to draft a document justifyingindependence. Its members were Ben-jamin Franklin, John Adams, ThomasJefferson, Robert Livingston andRoger Sherman . Another Committee,headed by John Dickinson, was ap-pointed to draft a plan for government .

The Committee to justify indepen-dence met at once and entrustedThomas Jefferson with the drafting .The document, approved by the com-mittee, was presented to the Congresson June 28 .On July 1, debate was resumed and

lasted most of the day. John Dickinsonmade a plea for delay, partly becausehe, like many others, still hoped forconcessions from Britain, and partlybecause he felt that the plan for gov-ernment should be ready before inde-pendence was declared . A vote showedthat nine states approved indepen-dence and four states withheld theirapproval : South Carolina was opposedbecause its delegates were not certainabout their authority ; New York ab-stained for lack of instructions fromits legislature ; Pennsylvania was op-posed because its delegates were sentto the Congress by one legislature and

127

authorized to vote on independence byanother legislature ; Delaware's twodelegates were divided .

On July 2, another vote was taken .This time the resolution was passedwithout dissent . South Carolina hadswitched its vote entirely; a delegatehad arrived from Delaware breakingthe tie; John Dickinson and RobertMorris of the Pennsylvania delegationhad withdrawn from the Congress per-mitting the state to vote for indepen-

When in the course of human events,it becomes necessary for one people todissolve the political bands which haveconnected them with another, and toassume among the Powers of the earth,the separate and equal station to whichthe Laws of Nature and of Nature'sGod entitle them, a decent respect tothe opinions of mankind requires thatthey should declare the causes whichimpel them to the separation .

We hold these truths to be self-evident, that all men are created equal,that they are endowed by their Creatorwith certain unalienable Rights, thatamong these are Life, Liberty and thepursuit of Happiness . That to securethese rights, Governments are insti-tuted among Men, deriving their justpowers from the consent of the gov-

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dence; New York had again abstainedfor lack of instructions .

After the vote, the Declaration wasdebated for two days and was some-what amended, the most notablechange being the condemnation ofGeorge III and the British people foxfostering and defending the slavetrade. Thus amended, the Declarationwas finally adopted by the Congress onJuly 4 .

DECLARATION OF INDEPENDENCEIn Congress, July 4, 1776

THE UNANIMOUS DECLARATION OF THE THIRTEEN UNITED STATES OF AMERICA

R.G.T

erned, That whenever any Form cGovernment becomes destructive cthese ends, it is the Right of the Peoplto alter or to abolish it, and to institutnew Government, laying its foundatioon such principles and organizing itpowers in such form, as to them sha :seem most likely to effect their Safetand Happiness . Prudence, indeed, wi:dictate that Governments long established should not be changed for ligband transient causes ; and accordinglall experience hath shown, that mankind are more disposed to suffer, whilevils are sufferable, than to right themselves by abolishing the forms to whic:they are accustomed . But when a Jontrain of abuses and usurpations, putsuing invariably the same Objecevinces a design to reduce them unde

absolute Despotism, it is their right,it is their duty, to throw off such Gov-ernment, and to provide new Guardsfor their future security . - Such hasbeen the patient sufferance of theseColonies; and such is now the necessitywhich constrains them to alter theirformer Systems of Government . Thehistory of the present King of GreatBritain is a history of repeated injuriesand usurpations, all having in directobject the establishment of an abso-lute Tyranny over these States. Toprove this, let Facts be submitted toa candid world .

He has refused his Assent to Laws,the most wholesome and necessary forthe public good.

He has forbidden his Governors topass Laws of immediate and pressingimportance, unless suspended in theiroperation till his Assent should be ob-tained ; and when so suspended, he hasutterly neglected to attend to them .

He has refused to pass other Lawsfor the accommodation of large dis-tricts of people, unless those peoplewould relinquish the right of Repre-;entation in the Legislature, a rightinestimable to them and formidable to:yrants only .

He has called together legislative)odies at places unusual, uncomfort-)ble, and distant from the depository)f their Public Records, for the solerupose of fatiguing them into com-)liance with his measures .He has dissolved Representative

Souses repeatedly, for opposing withnanly firmness his invasions on theights of the people .He has refused for a long time, after

such dissolutions, to cause others tobe elected; whereby the LegislativePowers, incapable of Annihilation,have returned to the People at largefor their exercise ; the State remainingin the mean time exposed to all thedangers of invasion from without, andconvulsions within .

He has endeavoured to prevent thepopulation of these States; for thatpurpose obstructing the Laws of Na-turalization of Foreigners ; refusing topass others to encourage their migra-tion hither, and raising the conditionsof new Appropriations of Lands .

He has obstructed the Administra-tion of Justice, by refusing his Assentto Laws for establishing JudiciaryPowers .

He has made Judges dependent onhis Will alone, for the tenure of theiroffices, and the amount and paymentof their salaries .

He has erected a multitude of NewOffices, and sent hither swarms of Offi-cers to harass our People, and eat outtheir substance .

He has kept among us, in times ofpeace, Standing Armies without theConsent of our legislature .

He has affected to render the Mili-tary independent of and superior tothe Civil Power .

He has combined with others tosubject us to a jurisdiction foreign toour constitution, and unacknowledgedby our laws ; giving his Assent to theiracts of pretended legislation :

For quartering large bodies ofarmed troops among us

For protecting them, by a mockTrial, from Punishment for any Mur-

1 29

ders which they should commit on theInhabitants of these States

For cutting off our Trade with allparts of the world :

For imposing taxes on us withoutour Consent :

For depriving us in many cases, ofthe benefits of Trial by Jury :

For transporting us beyond Seas tobe tried for pretended offences

For abolishing the free System ofEnglish Laws in a neighbouring Prov-ince, establishing therein an Arbitrarygovernment, and enlarging its Bound-aries so as to render it at once an ex-ample and fit instrument for introduc-ing the same absolute rule into theseColonies ;

For taking away our Charters, abol-ishing our most valuable Laws, andaltering fundamentally the Forms ofour Governments :

For suspending our own Legisla-ture, and declaring themselves investedwith Power to legislate for us in allcases whatsoever .

He has abdicated Government here,by declaring us out of his Protectionand waging War against us .

He has plundered our seas, ravagedour Coasts, burnt our towns, and de-stroyed the lives of our people .

He is at this time transporting largearmies of foreign mercenaries to com-pleat the works of death, desolationand tyranny, already begun with cir-cumstances of Cruelty & perfidyscarcely paralleled in the most bar-barous ages, and totally unworthy theHead of a civilized nation.

He has constrained our fellow Citi-zens taken Captive on the high Seas to

1 3 0

bear Arms against their Country, tcbecome the executioners of theifriends and Brethren, or to fall themselves by their Hands .

He has excited domestic insurrections amongst us, and has endeavourecto bring on the inhabitants of our fron .tiers, the merciless Indian Savageswhose known rule of warfare, is an un-distinguished destruction of all agessexes and conditions .

In every stage of these Oppression :We have Petitioned for Redress in themost humble terms : Our repeated Pe .titions have been answered only blrepeated injury . A Prince, whosccharacter is thus marked by every acwhich may define a Tyrant, is unfit tcbe the ruler of a free People .

Nor have we been wanting in atten .tion to our British brethren . We havcwarned them from time to time of at-tempts by their legislature to extencan unwarrantable jurisdiction over usWe have reminded them of the circumstances of our emigration an(settlement here. We have appealed tctheir native justice and magnanimityand we have conjured them by the tieof our common kindred to disavoNthese usurpations, which would inevitably interrupt our connections and cotrespondence. They too have been deato the voice of justice and of consanguinity. We must, therefore, acquiesce ithe necessity, which denounces ouSeparation, and hold them, as we holthe rest of mankind, Enemies in Wain Peace Friends .

We, therefore, the Representativcof the united States of America, iGeneral Congress, Assembled, appea

ing to the Supreme Judge of the worldfor the rectitude of our intentions, do,in the Name, and by Authority of thegood People of these Colonies, sol-emnly publish and declare, That theseUnited Colonies are, and of Rightought to be Free and IndependentStates ; that they are Absolved from allAllegiance to the British Crown, andthat all political connection betweenthem and the State of Great Britain, isand ought to be totally dissolved ; and

EDITOR'S NOTE : A month after its or-ganization, the Dickinson Committeepresented its plan for confederation tothe Continental Congress . The chair-man, John Dickinson himself was nolonger a member of the Congress andtook no part in the debate over hisplan. After the document had beenpared down somewhat, it was intro-duced for debate on August 20 . Themain thrust of the draft was carried inthe article defining the powers of thestates :

Each State reserves to itself the soleand exclusive regulation and govern-ment of its internal police, in all mat-ters that shall not interfere with thearticles of this Confederation .

The subjects most debated were

that as Free and Independent States,they have full Power to levy War, con-clude Peace, contract Alliances, es-tablish Commerce, and to do all otherActs and Things which IndependentStates may of right do . And for thesupport of this Declaration, with a firmreliance on the Protection of DivineProvidence, we mutually pledge toeach other our Lives, our Fortunesand our sacred Honor .

[Signatures omitted]

THE ARTICLES OF CONFEDERATION

these : (1) the proposal that each statewould continue to have one vote in theCongress ; (2) that the Congress mightnot levy direct taxes but must rely onthe states to furnish funds proportionalto its population ; (3) that the Con-gress should have the power to limitthe boundaries of those states withwestern land claims and to dispose ofthose lands "for the general benefit ofall ."

Since Dickinson had retired fromthe Congress, there was no one whocould speak convincingly about thedocument, and the debate disclosedthat there was a general hesitancyabout adopting it . Moreover, the de-bate was discontinued after a monthfor lack of a quorum, a habit of theContinental . Congress that indicated

1 3 1

the reluctance of the States to co-operate .In April, 1777, Thomas Burke,

representing North Carolina, one ofthe earliest states to press for unitedindependence, offered several amend-ments to the document. The first ofthese concerned the powers of thestates :

Each State retains its sovereignty, free-dom and independence, and everypower, jurisdiction and right which isnot by this confederation expresslydelegated to the United States, in Con-gress assembled .This required other changes : (1) thateach state was to continue to have asingle vote in the Congress, but (2)that taxation was to be levied by thestates for the national governmentusing quotas based on land and not onpopulation, and (3) that the Congresswas to have no authority to regulatewestern land claims .

In this form, the Articles wereadopted on November 15, 1777 andsent to the states for ratification ; eachstate's approval was necessary for im-plementation.

The Articles of Confederation notonly represented a victory for statesovereignty in principle, but gave con-siderable advantage to the landedstates, or those states whose westernboundary was not defined. The opposi-tion to ratification developed accord-ingly, North Carolina and Virginia,both landed states, taking the lead byratifying almost immediately, and suchstates as Pennsylvania and Marylandshowing less willingness to ratify .

132

By May, 1779, all the states butMaryland had ratified the Articles .Maryland had hoped to improve theposition of its land companies by re-fusing to ratify until a western landpolicy should be adopted by Congress .The situation remained deadlocked forabout a year, each side vying for astronger claims position when the Con-gress took up the matter .

In February, 1780, the legislatureof New York, a state with the vaguestsort of land claims, broke the deadlockby authorizing its delegates to restrictthe western boundaries . The Congressdeclared on September 6 that thismove was an act meant to "acceleratethe federal alliance" and urged otherlanded states to follow suit . TheSouthern states were once again in anationalist mood and most of thelanded states ceded their claims to theUnited States . Virginia finally agreedto cede lands north of the Ohio river,if all private claims were dropped aswell .

On October 10, 1780, Congresspassed a resolution stating that alllands ceded to the United States wouldbe disposed of for the common benefitof the United States and formed intonew states enjoying the same privilege,,as the original thirteen . Marylandhaving won this point, began to movetoward ratification of the Articles. Thefinal nudge was provided by Francewhen French aid to protect Maryland';Chesapeake Bay from British invasionwas made conditional upon Maryland's ratification .

The Articles of Confederation, already battered before ratification, fin

ally took effect on March 1, 1781when Maryland agreed. The westernland policy, the main obstacle to theirratification, it later turned out, was oneof the few provisions of the Articles ofConfederation to be incorporated intothe Federal Constitution of 1789 .

To all to whom these Presents shallcome, we the undersigned Delegates ofthe States affixed to our Names sendgreeting.

Whereas the Delegates of the UnitedStates of America, in Congress assem-bled, did, on the fifteenth day of No-vember in the Year of our Lord OneThousand Seven Hundred and Seventyseven, and in the Second Year of theIndependence of America, agree tocertain articles of Confederation andperpetual Union between the States ofNewhampshire, Massachusetts-bay,Rhodeisland and Providence Planta-tions, Connecticut, New York, NewJersey, Pennsylvania, Delaware,Maryland, Virginia, North-Carolina,South-Carolina, and Georgia in thewords following, viz. "Articles of Con-'ederation and perpetual Union be-ween the states of Newhampshire,Massachusetts-bay, Rhodeisland andIrovidence Plantations, Connecticut,few-York, New-Jersey, Pennsylvania,)elaware, Maryland, Virginia, North-,arolina, South-Carolina and Georgia .

ARTICLES OF CONFEDERATION

Proposed by Congress November 15, 1777Ratified and effective March 1, 1781

The characteristic of most impor-tance, the one that resulted in a con-vention six years later to "form a moreperfect union," was the retaining bythe states of the sovereign powersnecessary to a central government .

R.G.T .

ARTICLE I

The Stile of this Confederacy shall be"The United States of America ."

ARTICLE II

Each state retains its sovereignty, free-dom, and independence, and everyPower, Jurisdiction and right, which isnot by this confederation expresslydelegated to the United States, in Con-gress assembled .

ARTICLE III

The said states hereby severally enterinto a firm league of friendship witheach other, for their common defence,the security of their Liberties, and theirmutual and general welfare, bindingthemselves to assist each other, againstall force offered to, or attacks madeupon them, or any of them, on accountof religion, sovereignty, trade, or anyother pretence whatever.

1 3 3

The better to secure and perpetuatemutual friendship and intercourseamong the people of the differentstates in this union, the free inhabitantsof each of these states, paupers, vaga-bonds and fugitives from justice ex-cepted, shall be entitled to all privi-leges and immunities of free citizens inthe several states; and the people ofeach state shall have free ingress andregress to and from any other state,and shall enjoy therein all the privi-leges of trade and commerce, subjectto the same duties, impositions andrestrictions as the inhabitants thereofrespectively, provided that such re-strictions shall not extend so far as toprevent the removal of property im-ported into any state, to any otherstate of which the Owner is an inhabi-tant; provided also that no imposition,duties or restrictions shall be laid byany state, on the property of the unitedstates, or either of them .

If any Person guilty of, or chargedwith treason, felony, or other highmisdeameanor in any state, shall fleefrom Justice, and be found in any ofthe united states, he shall, upon de-mand of the Governor or executivepower, of the state from which he fled,be delivered up and removed to thestate having jurisdiction of his offence .

Full faith and credit shall be givenin each of these states to the records,acts and judicial proceedings of thecourts and magistrates of every otherstate .

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ARTICLE IV ARTICLE V

For the more convenient managemenof the general interests of the unitecstates, delegates shall be annually ap .pointed in such manner as the legis,lature of each state shall direct, to meein Congress on the first Monday itNovember, in every year, with a powerreserved to each state, to recall its dele .gates, or any of them, at any time with.in the year, and to send others in theirstead, for the remainder of the Year

No state shall be represented in Con.gress by less than two, nor by mornthan seven Members; and no persorshall be capable of being a delegate formore than three years in any term ofsix years; nor shall any person, beinfa delegate, be capable of holding an3office under the united states, forwhich he, or another for his benefit re-ceives any salary, fees or emolumenof any kind .

Each state shall maintain its owidelegates in a meeting of the statesand while they act as members of thcommittee of the states .

In determining questions in thunited states in Congress assembleseach state shall have one vote .

Freedom of speech and debate iCongress shall not be impeached cquestioned in any Court, or place ofof Congress, and the members of cotgress shall be protected in their personfrom arrests and imprisonments, duing the time of their going to and fronand attendance on Congress, excelfor treason, felony, or breach of tlpeace .

ARTICLE VI

No state without the Consent of theunited states in congress assembled,shall send any embassy to, or receiveany embassy from, or enter into anyconference, agreement, alliance ortreaty with any King, prince or state ;nor shall any person holding any officeof profit or trust under the unitedstates, or any of them, accept of anypresent, emolument, office or title ofany kind whatever from any king,prince or foreign state ; nor shall theunited states in congress assembled, orany of them, grant any title of nobility.

No two or more states shall enterinto any treaty, confederation or alli-ance whatever between them, withoutthe consent of the united states in con-gress assembled, specifying accuratelythe purposes for which the same is tobe entered into, and how long it shallcontinue.

No state shall lay any imposts orduties, which may interfere with anystipulations in treaties, entered into bythe United States in Congress assem-bled, with any king, prince or state, inpursuance of any treaties already pro-posed by congress, to the courts ofFrance and Spain .

No vessels of war shall be kept upin time of peace by any state, exceptsuch number only, as shall be deemednecessary by the united states in con-gress assembled, for the defence ofsuch state, or its trade ; nor shall anybody of forces be kept up by any state,in time of peace, except such numberonly, as in the judgment of the unitedstates, in congress assembled, shall be

deemed requisite to garrison the fortsnecessary for the defence of such state ;but every state shall always keep up awell regulated and disciplined militia,sufficiently armed and accoutred, andshall provide and constantly haveready for use, in public stores, a duenumber of field pieces and tents, and aproper quantity of arms, ammunitionand camp equipage .

No state shall engage in any warwithout the consent of the unitedstates in congress assembled, unlesssuch state be actually invaded byenemies, or shall have received certainadvice of a resolution being formed bysome nation of Indians to invade suchstate, and the danger is so imminent asnot to admit of a delay till the unitedstates in congress assembled can beconsulted : nor shall any state grantcommissions to any ships or vessels ofwar, nor letters of marque or reprisal,except it be after a declaration of warby the united states in congress assem-bled, and then only against the king-dom or state and the subjects thereof,against which war has been so de-clared, and under such regulations asshall be established by the united statesin congress assembled, unless suchstate be infested by pirates, in whichcase vessels of war may be fitted outfor that occasion, and kept so long asthe danger shall continue, or until theunited states in congress assembled,shall determine otherwise .

ARTICLE VII

When land-forces are raised by anystate for the common defence, all offi-

1 3 5

cers of or under the rank of colonel,shall be appointed by the legislature ofeach state respectively, by whom suchforces shall be raised, or in such man-ner as such state shall direct, and allvacancies shall be filled up by the Statewhich first made the appointment .

ARTICLE VIII

All charges of war, and all other ex-pences that shall be incurred for thecommon defence or general welfare,and allowed by the united states incongress assembled, shall be defrayedout of a common treasury, which shallbe supplied by the several states inproportion to the value of all landwithin each state, granted to or sur-veyed for any Person, as such land andthe buildings and improvements there-on shall be estimated according to suchmode as the united states in congressassembled, shall from time to timedirect and appoint .

The taxes for paying that proportionshall be laid and levied by the authorityand direction of the legislatures of theseveral states within the time agreedupon by the United States in Congressassembled .

ARTICLE IX

The united states in congress assem-bled, shall have the sole and exclusiveright and power of determining onpeace and war, except in the casesmentioned in the sixth article-ofsending and receiving ambassadors -entering into treaties and alliances,provided that no treaty of commerce

1 3 6

shall be made whereby the legislativepower of the respective states shall berestrained from imposing such impostsand duties on foreigners as their ownpeople are subjected to, or from pro-hibiting the exploration or importationof any species of goods or commodi-ties, whatsoever- of establishingrules for deciding in all cases, whatcaptures on land or water shall belegal, and in what manner prizes takenby land or naval forces in the serviceof the united states shall be divided orappropriated - of granting letters ofmarque and reprisal in times of peace- appointing courts for the trial ofpiracies and felonies committed on thehigh seas and establishing courts forreceiving and determining finally ap-peals in all cases of captures, providedthat no member of congress shall beappointed a judge of any of the saidcourts.

The united states in congress as-sembled shall also be the last resort onappeal in all disputes and differencesnow subsisting or that hereafter mayarise between two or more states con-cerning boundary, jurisdiction or anyother cause whatever ; which authorityshall always be exercised in the man-ner following . Whenever the legislativeor executive authority or lawful agentof any state in controversy withanother shall present a petition to con .gress stating the matter in question ancpraying for a hearing, notice thereo?shall be given by order of congress tcthe legislative or executive authorit`of the other state in controversy, an(a day assigned for the appearance othe parties by their lawful agents, whc

shall then be directed to appoint byjoint consent, commissioners or judgesto constitute a court for hearing anddetermining the matter in question :but if they cannot agree, congress shallname three persons out of each of theunited states, and from the list of suchpersons each party shall alternatelystrike out one, the petitioners begin-ning, until the number shall be reducedto thirteen ; and from that number notless than seven, nor more than ninenames as congress shall direct, shall inthe presence of congress be drawn outby lot, and the persons whose namesshall be so drawn or any five of them,shall be commissioners or judges, tohear and finally determine the contro-versy, so always as a major part of thejudges who shall hear the cause shallagree in the determination : and ifeither party shall neglect to attend atthe day appointed, without showingreasons, which congress shall judgesufficient, or being present shall refuseto strike, the congress shall proceed tonominate three persons out of eachstate, and the secretary of congressshall strike in behalf of such partyabsent or refusing ; and the judgmentand sentence of the court to be ap-pointed, in the manner before pre-scribed, shall be final and conclusive ;and if any of the parties shall refuse tosubmit to the authority of such court,or to appear or defend their claim orcause, the court shall nevertheless pro-ceed to pronounce sentence, or judg-ment, which shall in like manner befinal and decisive, the judgment orsentence and other proceedings beingin either case transmitted to congress,

and lodged among the acts of congressfor the security of the parties con-cerned : provided that every commis-sioner, before he sits in judgment,shall take an oath to be administeredby one of the judges of the supreme orsuperior court of the state where thecause shall be tried, "well and truly tohear and determine the matter in ques-tion, according to the best of his judg-ment, without favour, affection or hopeof reward:" provided also, that nostate shall be deprived of territory forthe benefit of the united states .

All controversies concerning theprivate right of soil claimed under dif-ferent grants of two or more states,whose jurisdictions as they may re-spect such lands, and the states whichpassed such grants are adjusted, thesaid grants or either of them being atthe same time claimed to have origi-nated antecedent to such settlement ofjurisdiction, shall on the petition ofeither party to the congress of theunited states, be finally determined asnear as may be in the same manner asis before prescribed for deciding dis-putes respecting territorial jurisdictionbetween different states .

The united states in congress assem-bled shall also have the sole and ex-clusive right and power of regulatingthe alloy and value of coin struck bytheir own authority, or by that of therespective states - fixing the standardof weights and measures throughoutthe united states - regulating thetrade and managing all affairs with theIndians, not members of any of thestates, provided that the legislativeright of any state within its own limits

137

be not infringed or violated - estab-lishing and regulating post-offices fromone state to another, throughout allthe united states, and exacting suchpostage on the papers passing thro' thesame as may be requisite to defray theexpences of the said office - appoint-ing all officers of the land forces, in theservice of the united states, exceptingregimental officers - appointing allthe officers of the naval forces, andcommissioning all officers whatever inthe service of the united states - mak-ing rules for the government and regu-lation of the said land and naval forces,and directing their operations .

The united states in congress assem-bled shall have authority to appoint acommittee, to sit in the recess of con-gress, to be denominated "A Com-mittee of the States," and to consist ofone delegate from each state ; and toappoint such other committees andcivil officers as may be necessary formanaging the general affairs of theunited states under their direction -to appoint one of their number to pre-side, provided that no person be al-lowed to serve in the office of presidentmore than one year in any term ofthree years ; to ascertain the necessarysums of money to be raised for the ser-vice of the united states, and to appro-priate and apply the same for defray-ing the public expences - to borrowmoney, or emit bills on the credit ofthe united states, transmitting everyhalf year to the respective states an ac-count of the sums of money so bor-rowed or emitted, -to build andequip a navy -to agree upon thenumber of land forces, and to make

1 3 8

requisitions from each state for itsquota, in proportion to the number ofwhite inhabitants in such state; whichrequisition shall be binding, and there-upon the legislature of each state shallappoint the regimental officers, raisethe men and cloath, arm and equipthem in a soldier like manner, at theexpence of the united states ; and theofficers and men so cloathed, armedand equipped shall march to the placeappointed, and within the time agreedon by the united states in congress as-sembled: But if the united states incongress assembled shall, on consider-ation of circumstances judge properthat any state should not raise men, orshould raise a smaller number than itsquota, and that any other state shouldraise a greater number of men thanthe quota thereof, such extra numbershall be raised, officered, cloathed,armed and equipped in the same man-ner as the quota of such state, unlessthe legislature of such state shall judgethat such extra number cannot besafely spared out of the same, in whichcase they shall raise officer, cloath, armand equip as many of such extra num-ber as they judge can be safely spared .And the officers and men so cloathed,armed and equipped, shall march tothe place appointed, and within thetime agreed on by the united states incongress assembled .

The united states in congress assem-bled shall never engage in a war, norgrant letters of marque and reprisal intime of peace, nor enter into anytreaties or alliances, nor coin money,nor regulate the value thereof, nor as-certain the sums and expences neces-

sary for the defence and welfare of theunited states, or any of them, nor emitbills, nor borrow money on the creditof the united states, nor appropriatemoney, nor agree upon the number ofvessels of war, to be built or pur-chased, or the number of land or seaforces to be raised, nor appoint a com-mander in chief of the army or navy,unless nine states assent to the same :nor shall a question on any other point,except for adjourning from day to daybe determined, unless by the votes ofa majority of the united states in con-gress assembled .

The congress of the united statesshall have power to adjourn to anytime within the year, and to any placewithin the united states, so that noperiod of adjournment be for a longerduration than the space of six Months,and shall publish the Journal of theirproceedings monthly, except suchparts thereof relating to treaties, alli-ances or military operations, as in theirjudgment require secrecy ; and the yeasand nays of the delegates of each stateon any question shall be entered on theJournal, when it is desired by any dele-gate; and the delegates of a state, orany of them, at his or their requestshall be furnished with a transcript ofthe said Journal, except such parts asare above excepted, to lay before thelegislatures of the several states .

ARTICLE X

The committee of the states, or anynine of them, shall be authorized toexecute, in the recess of congress, suchof the powers of congress as the united

states in congress assembled, by theconsent of nine states, shall from timeto time think expedient to vest themwith ; provided that no power be dele-gated to the said committee, for theexercise of which, by the articles ofconfederation, the voice of nine statesin the congress of the united states as-sembled is requisite .

ARTICLE XI

Canada acceding to this confederation,and joining in the measures of theunited states, shall be admitted into,and entitled to all the advantages ofthis union : but no other colony shallbe admitted into the same, unless suchadmission be agreed to by nine states.

ARTICLE XII

All bills of credit emitted, monies bor-rowed and debts contracted by, or un-der the authority of congress, beforethe assembling of the united states, inpursuance of the present confedera-tion, shall be deemed and consideredas a charge against the united states,for payment and satisfaction whereofthe said united states, and the publicfaith are hereby solemnly pledged .

ARTICLE XIII

Every state shall abide by the determi-nations of the united states in congressassembled, on all questions which bythis confederation are submitted tothem. And the Articles of this con-federation shall be inviolably observedby every state, and the union shall beperpetual ; nor shall any alteration at

1 3 9

any time hereafter be made in any ofthem; unless such alteration be agreedto in a congress of the united states,and be afterwards confirmed by thelegislatures of every state .AND WHEREAS it hath pleased the

Great Governor of the World to in-cline the hearts of the legislatures werespectively represent in congress, toapprove of, and to authorize us toratify the said articles of confederationand perpetual union . KNOW YE that wethe undersigned delegates, by virtue ofthe power and authority to us givenfor that purpose, do by these presents,in the name and in behalf of our re-spective constituents, fully and entirelyratify and confirm each and every ofthe said articles of confederation andperpetual union, and all and singular

EDITOR'S NOTE : When, in late springof 1787, fifty-five delegates met inPhiladelphia it was to revise theArticles of Confederation, not to writea new constitution. These Articles hadbeen adopted by the states at the endof the war for independence . Theyprovided for so weak a central govern-ment that the new nation was endan-gered from both within and without -from within because there was no realunion, and from without because oldempires on three sides were obviouslynot reconciled to the establishment ofa new nation .

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the matters and things therein con-tained: And we do further solemnlyplight and engage the faith of our re-spective constituents, that they shallabide by the determinations of theunited states in congress assembled, onall questions, which by the said con-federation are submitted to them . Andthat the articles thereof shall be in-violably observed by the states we re-spectively represent, and that theunion shall be perpetual . In Witnesswhereof we have hereunto set ourhands in Congress . Done at Philadel-phia in the state of Pennsylvania theninth day of July, in the year of ourLord one Thousand seven Hundredand Seventy-eight, and in the thirdyear of the independence of America .

[Signatures omitted]

THE CONSTITUTION OF 1787

The one common instructionbrought to the convention by all thedelegates was to "form a more per-fect union ;" but there were differentinterpretations of "union," and Wash-ington, who was elected chairman,was discouraged from the first by thenumber of those who meant to pre-serve state authority even if it weak-ened the central government . Never-theless one of the early resolutionswas that an entirely new governmentshould be instituted and that thedelegates should provide its consti-tution. But Washington was not re-

assured until discussions had gone onfor several weeks and a compromisewas agreed on. This provided fordual government-a federal one, thestates conceding the powers necessaryto taxation, the control of interstatecommerce, and the common defense .It was conceived that there could beboth union and state sovereignty .

As for the government itself therewas quick agreement that it shouldconsist of three branches-executive,legislative, and judicial . But there wascontroversy between the large and thesmall states . In a representative leg-islature there would be more mem-bers from the larger states and thesmaller ones would be at a disadvan-tage. This too was finally settled bycompromise . The Senate was inventedto give all states equal representationin a second house.

There was further controversyabout the executive. Should there bea council or should there be one per-son? The council was in the endgiven up and the single President ac-cepted, although it might not havebeen if the delegates had not forecastWashington in the role .

There were many questions leftunsettled. The more important ofthese were the assignment of powers .The central government was to haveonly those granted to it ; the stateswere to keep all the rest . But thegrants were brief and ambiguous . Itwas this brevity that led to the longcontroversy between strict and looseconstructionists . This finally came toa climax more than half a centurylater in the Civil War ; and the differ-

ences went on causing trouble far intothe twentieth century.

The other most serious result ofbrevity was the uncertainty about theassignments to the branches . This re-suited in an almost continuous strug-gle among them as new duties fell tothe government and as emergenciesarose.

Both these controversies mighthave been settled by amendment ; butthe delegates, as a kind of after-thought, provided that amendmentshould begin with a resolution ofboth houses of the legislature, thenbe submitted to the states. It wasnecessary for three-quarters of themto agree. This would obviously bevery difficult. There was an alternatemethod, even more difficult . This wasfor three-quarters of the states topetition the Congress for a neededchange . The result was that only afew changes were ever made .

The exception was the first groupof ten amendments, usually called theBill of Rights. The framers hadthought individual rights well enoughprotected by the checks and balancesof a three-branch system ; but whenthe document was submitted for rati-fication there were violent objectionsfrom those who felt that conservativeattitudes had prevailed in its drafting .It was necessary to promise more pro-tection for liberties in order to secureratification . As it was, the votes wereclose in many states .

The result of these amendmentsand the structure of the governmentwas that citizens were made securefrom any governmental invasion of

14 1

their rights ; but there was verylittle said about duties . The Consti-tution remained that way. This wasperhaps natural for a people justescaped from colonialism ; but whatpeople owed to each other and to theirgovernment would soon become im-portant too . As late as 1961, in hisinaugural address, President Kennedyfelt impelled to say to his fellow citi-zens : "Ask not what your country cando for you - ask what you can do foryour country."

The delegates finished their workin September and resolved that ifnine of the thirteen states acceptedthe Constitution it should go intoeffect. They had no instructions about

WE the people of the United States,in order to form a more perfect union,establish justice, insure domestic tran-quillity, provide for the common de-fense, promote the general welfare,and secure the blessings of liberty toourselves and our posterity, do ordainand establish this Constitution for theUnited States of America .

ARTICLE I

SECTION 1 . All legislative powersherein granted shall be vested in aCongress of the United States, which

, 1 42

THE CONSTITUTION OF 1787

Proposed by Convention September 17, 1787Effective March 4,1789

this; presumably only ratifying statesshould belong to the new union. ButRhode Island had sent no delegates,two of those from New York had leftearly, and Patrick Henry of Virginia,together with a number of others, hadnot appeared at all .

There were fierce arguments in mostof the ratifying conventions, but with-in two years the draft had beenaccepted-with the promise that thenew Congress would propose the firstten amendments. So the new govern-ment began, not with universal jubila-tion but with many dissenters andwith no very promising future .

R.G.T .

shall consist of a Senate and House ofRepresentatives .

SECTION 2 . 1 . The House of Represen-tatives shall be composed of memberschosen every second year by the peopleof the several States, and the electorsin each State shall have the qualifica-tions requisite for electors of the mostnumerous branch of the State legis-lature .

2. No person shall be a representativewho shall not have attained to the ageof twenty-five years, and been sevenyears a citizen of the United States,and who shall not, when elected, be

an inhabitant of that State in which heshall be chosen .

3 . Representatives and direct taxes'shall be apportioned among the severalStates which may be included withinthis Union, according to their respec-tive numbers, [which shall be deter-mined by adding to the whole numberof free persons, including those boundto service for a term of years, and ex-cluding Indians not taxed, three-fifthsof all other persons .] 2 The actualenumeration shall be made withinthree years after the first meeting ofthe Congress of the United States, andwithin every subsequent term of tenyears, in such manner as they shall bylaw direct. The number of representa-tives shall not exceed one for everythirty thousand, but each State shallhave at least one representative ; anduntil such enumeration shall be made,the State of New Hampshire shall beentitled to choose three, Massachusettseight, Rhode Island and ProvidencePlantations one, Connecticut five, NewYork six, New Jersey four, Pennsyl-vania eight, Delaware one, Marylandsix, Virginia ten, North Carolina five,South Carolina five, and Georgiathree .

4. When vacancies happen in the rep-resentation from any State, the execu-tive authority thereof shall issue writsof election to fill such vacancies .

5. The House of Representatives shallchoose their speaker and other officers ;'See the 16th Amendment .2See the 14th Amendment .

and shall have the sole power of im-peachment .

SECTION 3. 1 . The Senate of the UnitedStates shall be composed of two sena-tors from each State, [chosen by thelegislature thereof,] 3 for six years ; andeach senator shall have one vote .

2 . Immediately after they shall be as-sembled in consequence of the firstelection, they shall be divided asequally as may be into three classes .The seats of the senators of the firstclass shall be vacated at the expirationof the second year, of the second classat the expiration of the fourth year,and of the third class at the expirationof the sixth year, so that one-third maybe chosen every second year ; and ifvacancies happen by resignation, orotherwise, during the recess of thelegislature of any State, the executivethereof may make temporary appoint-ments until the next meeting of thelegislature, which shall then fill suchvacancies . 4

3 . No person shall be a senator whoshall not have attained to the age ofthirty years, and been nine years acitizen of the United States, and whoshall not, when elected, be an inhabi-tant of that State for which he shall bechosen .

4. The Vice President of the UnitedStates shall be president of the Senate,but shall have no vote, unless they beequally divided .3See the 17th Amendment.4See the 17th Amendment.

1 4 3

5. The Senate shall choose their otherofficers, and also a president pro tem-pore, in the absence of the Vice Presi-dent, or when he shall exercise theoffice of the President of the UnitedStates .

6. The Senate shall have the solepower to try all impeachments. Whensitting for that purpose, they shall beon oath or affirmation . When thePresident of the United States is tried,the Chief Justice shall preside : and noperson shall be convicted without theconcurrence of two-thirds of the mem-bers present .

7. Judgment in cases of impeachmentshall not extend further than to re-moval from office, and disqualifica-tions to hold and enjoy any office ofhonor, trust or profit under the UnitedStates : but the party convicted shallnevertheless be liable and subject toindictment, trial, judgment, and pun-ishment, according to law .

SECTION 4. 1 . The times, places, andmanner of holding elections for sena-tors and representatives, shall be pre-scribed in each State by the legislaturethereof; but the Congress may at anytime by law make or alter such regula-tions, except as to the places of choos-ing senators .

2 . The Congress shall assemble atleast once in every year, and suchmeeting shall be on the first Monday

5Modified by the 20th Amendment.

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in December, 5 unless they shall by lawappoint a different day .

SECTION 5 . 1 . Each House shall be thejudge of the elections, returns andqualifications of its own members, anda majority of each shall constitute aquorum to do business ; but a smallernumber may adjourn from day to day,and may be authorized to compel theattendance of absent members, in suchmanner, and under such penalties aseach House may provide .

2. Each House may determine therules of its proceedings, punish itsmembers for disorderly behavior, and,with the concurrence of two-thirds,expel a member .

3. Each House shall keep a journal ofits proceedings, and from time to timepublish the same, excepting such partsas may in their judgment requiresecrecy ; and the yeas and nays of the

• members of either House on any ques-tion shall, at the desire of one-fifth ofthose present, be entered on thejournal .

4. Neither House, during the sessionof Congress, shall, without the consentof the other, adjourn for more thanthree days, nor to any other place thanthat in which the two Houses shall besitting .

SECTION 6 . 1 . The senators and repre-sentatives shall receive a compensa-tion for their services, to be ascertainedby law, and paid out of the Treasuryof the United States . They shall in all

vases, except treason, felony, and)reach of the peace, be privileged fromarrest during their attendance at thesession of their respective Houses, andin going to and returning from thesame ; and for any speech or debate ineither House, they shall not be ques-tioned in any other place.

2. No senator or representative shall,during the time for which he waselected, be appointed to any civil officeunder the authority of the UnitedStates, which shall have been created,or the emoluments whereof shall havebeen increased during such time ; andno person holding any office under theUnited States shall be a member ofeither House during his continuancein office .

SECTION 7. 1 . All bills for raising reve-nue shall originate in the House ofRepresentatives ; but the Senate maypropose or concur with amendmentsas on other bills .

2. Every bill which shall have passedthe House of Representatives and theSenate, shall, before it becomes a law,be presented to the President of theUnited States ; if he approves he shallsign it, but if not he shall return itwith his objections to that House inwhich it shall have originated, whoshall enter the objections at large ontheir journal, and proceed to recon-sider it . If after such reconsiderationtwo-thirds of that House shall agree topass the bill, it shall be sent, togetherwith the objections, to the otherHouse, by which it shall likewise be

reconsidered, and if approved by two-thirds of that House, it shall become alaw. But in all such cases the votes ofboth Houses shall be determined byyeas and nays, and the names of thepersons voting for and against the billshall be entered on the journal of eachHouse respectively . If any bill shallnot be returned by the President withinten days (Sundays excepted) after itshall have been presented to him, thesame shall be a law, in like manner asif he had signed it, unless the Congressby their adjournment prevent its re-turn, in which case it shall not be alaw .

3. Every order, resolution, or vote towhich the concurrence of the Senateand the House of Representatives maybe necessary (except on a question ofadjournment) shall be presented tothe President of the United States ; andbefore the same shall take effect, shallbe approved by him, or being disap-proved by him, shall be repassed bytwo-thirds of the Senate and House ofRepresentatives, according to the rulesand limitations prescribed in the caseof a bill .

SECTION 8. The Congress shall havethe power1 . To lay and collect taxes, duties,imposts, and excises, to pay the debtsand provide for the common defenseand general welfare of the UnitedStates; but all duties, imposts, andexcises shall be uniform throughoutthe United States ;

2. To borrow money on the credit of

1 45

the United States ;

3. To regulate commerce with foreignnations, and among the several States,and with the Indian tribes ;

4. To establish a uniform rule of nat-uralization, and uniform laws on thesubject of bankruptcies throughout theUnited States ;

5. To coin money, regulate the valuethereof, and of foreign coin, and fixthe standard of weights and measures ;

6. To provide for the punishment ofcounterfeiting the securities and cur-rent coin of the United States ;

7. To establish post offices and postroads ;

8. To promote the progress of scienceand useful arts, by securing for limitedtimes to authors and inventors the ex-clusive right to their respective writingsand discoveries ;

9. To constitute tribunals inferior tothe Supreme Court ;

10. To define and punish piracies andfelonies committed on the high seas,and offenses against the law of nations ;

11 . To declare war, grant letters ofmarque and reprisal, and make rulesconcerning captures on land andwater ;

12. To raise and support armies, butno appropriation of money to that use

146

shall be for a longer term than twcyears ;

13. To provide and maintain a navy

14 . To make rules for the governmeniand regulation of the land and nava :forces ;

15. To provide for calling forth themilitia to execute the laws of theUnion, suppress insurrections, and re-pel invasions ;

16. To provide for organizing, arm-ing, and disciplining the militia, andfor governing such part of them asmay be employed in the service of theUnited States, reserving to the Statesrespectively, the appointment of theofficers, and the authority of trainingthe militia according to the disciplineprescribed by Congress ;

17. To exercise exclusive legislationin all cases whatsoever, over such dis-trict (not exceeding ten miles square)as may, by cession of particular States,and the acceptance of Congress, be-come the seat of the government ofthe United States, and to exercise likeauthority over all places purchased bythe consent of the legislature of theState in which the same shall be, forthe erection of forts, magazines, arse-nals, dockyards, and other needfulbuildings; and

18. To make all laws which shall benecessary and proper for carrying intoexecution the foregoing powers, andall other powers vested by this Con-

titution in the government of theJnited States, or in a" department orofficer thereof.

ECTION 9. 1 . The migration or im-)ortation of such persons as any of theitates now existing shall think propero admit, shall not be prohibited byhe Congress prior to the year onehousand eight hundred and eight, butt tax or duty may be imposed on suchmportation, not exceeding ten dollarsor each person .

?. The privilege of the writ of habeas:orpus shall not be suspended, unlesswhen in cases of rebellion or invasionthe public safety may require it .

3. No bill of attainder or ex post factolaw shall be passed .

4. No capitation, or other direct, taxshall be laid, unless in proportion tothe census or enumeration hereinbe-fore directed to be taken .6

5. No tax or duty shall be laid onarticles exported from any State .

6. No preference shall be given by anyregulation of commerce or revenue tothe ports of one State over those ofanother : nor shall vessels bound to, orfrom, one State be obliged to enter,clear, or pay duties in another .

7 . No money shall be drawn from thetreasury, but in consequence of ap-propriations made by law ; and a regu-

°See the 16th Amendment .

lar statement and account of the re-ceipts and expenditures of all publicmoney shall be published from timerto time .

8. No title of nobility shall be grantedby the United States : and no personholding any office of profit or trustunder them, shall, without the consentof the Congress, accept of any present,emolument, office, or title, of any kindwhatever, from any king, prince, orforeign State .

SECTION 10. 1 . No State shall enterinto any treaty, alliance, or confeder-ation; grant letters of marque and re-prisal; coin money; emit bills of credit ;make anything but gold and silver coina tender in payment of debts ; pass anybill of attainder, ex post facto law, orlaw impairing the obligation of con-tracts, or grant any title of nobility .

2. No State shall, without the consentof the Congress, lay any imposts orduties on imports or exports, exceptwhat may be absolutely necessary forexecuting its inspection laws ; and thenet produce of all duties and impostslaid by any State on imports or ex-ports, shall be for the use of thetreasury of the United States ; and allsuch laws shall be subject to the re-vision and control of the Congress .

3 . No State shall, without the consentof the Congress, lay any duty of ton-nage, keep troops, or ships of war intime of peace, enter into any agree-ment or compact with another State,or with a foreign power, or engage in

147

war, unless actually invaded, or in suchimminent danger as will not admit ofdelay .

ARTICLE II

SECTION 1 . 1 . The executive powershall be vested in a President of theUnited States of America . He shallhold his office during the term of fouryears, and, together with the VicePresident, chosen for the same term,be elected as follows

2. Each State7 shall appoint, in suchmanner as the legislature thereof maydirect, a number of electors, equal tothe whole number of senators and rep-resentatives to which the State may beentitled in the Congress : but no sen-ator or representative, or person hold-ing an office of trust or profit under theUnited States, shall be appointed anelector .

The electors shall meet in their re-spective States, and vote by ballot fortwo persons, of whom one at leastshall not be an inhabitant of the sameState with themselves. And they shallmake a list of all the persons voted for,and of the number of votes for each ;which list they shall sign and certify,and transmit sealed to the seat of thegovernment of the United States, di-rected to the president of the Senate .The president of the Senate shall, inthe presence of the Senate and Houseof Representatives, open all the cer-tificates, and the votes shall then becounted . The person having the

?See the 23rd Amendment.

148

greatest number of votes shall be thPresident, if such number be a mzjority of the whole number of electorappointed ; and if there be more thaone who have such majority, and havan equal number of votes, then thHouse of Representatives shall immediately choose by ballot one of thenfor President ; and if no person havemajority, then from the five highest ofthe list the said House shall in lik,manner choose the President . But iichoosing the President, the votes shalbe taken by States, the representatiolfrom each State having one vote ; ,quorum for this purpose shall consisof a member or members from twothirds of the States, and a majority o'all the States shall be necessary tochoice . In every case, after the choiceof the President, the person having thegreatest number of votes of the elector,shall be the Vice President . But if thereshould remain two or more who haveequal votes, the Senate shall choosefrom them by ballot the Vice Presi-dent ."

3 . The Congress may determine thetime of choosing the electors, and theday on which they shall give theirvotes; which day shall be the samethroughout the United States .

4. No person except a natural borncitizen or a citizen of the UnitedStates, at the time of the adoption ofthis Constitution, shall be eligible tothe office of President ; neither shallany person be eligible to that office8This paragraph was superseded by the 12thAmendment.

who shall not have attained to the ageof thirty-five years, and been fourteenyears a resident within the UnitedStates .

5. In case of the removal of the Presi-dent from office, or of his death, resig-nation, or inability to discharge thepowers and duties of the said office, thesame shall devolve on the Vice Presi-dent, and the Congress may by lawprovide for the case of removal, death,resignation, or inability, both of thePresident and Vice President, declar-ing what officer shall then act asPresident, and such officer shall actaccordingly, . until the disability beremoved, or a President shall beelected .

6 . The President shall, at stated times,receive for his services a compensa-tion, which shall neither be increasednor diminished during the period forwhich he shall have been elected, andhe shall not receive within that periodany other emolument from the UnitedStates, or any of them .

7. Before he enter on the execution ofhis office, he shall take the followingoath or affirmation : - "I do solemnlyswear (or affirm) that I will faithfullyexecute the office of President of theUnited States, and will to the best ofmy ability, preserve, protect, and de-fend the Constitution of the UnitedStates ."

SECTION 2. 1 . The President shall becommander in chief of the army andnavy of the United States, and of the

militia of the several States, whencalled into the actual service of theUnited States ; he may require theopinion, in writing, of the principalofficer in each of the executive depart-ments, upon any subject relating to theduties of their respective offices, andhe shall have power to grant reprievesand pardons for offenses against theUnited States, except in cases of im-peachment.

2. He shall have power, by and withthe advice and consent of the Senate,to make treaties, provided two-thirdsof the senators present concur ; and heshall nominate, and by and with theadvice and consent of the Senate, shallappoint ambassadors, other publicministers and consuls, judges of theSupreme Court, and all other officersof the United States, whose appoint-ments are not herein otherwise pro-vided for, and which shall be estab-lished by law : but the Congress mayby law vest the appointment of suchinferior officers, as they think proper,in the President alone, in the courts oflaw, or in the heads of departments .

3. The President shall have power tofill up all vacancies that may hap-pen during the recess of the Senate,by granting commissions which shallexpire at the end of their nextsession.

SECTION 3. He shall from time to timegive to the Congress information ofthe state of the Union, and recommendto their consideration such measuresas he shall judge necessary and ex-

149

pedient ; he may, on extraordinary oc-casions, convene both Houses, oreither of them, and in case of dis-agreement between them with respectto the time of adjournment, he mayadjourn them to such time as he shallthink proper ; he shall receive am-bassadors and other public ministers ;he shall take care that the laws befaithfully executed, and shall com-mission all the officers of the UnitedStates .

SECTION 4. The President, Vice Presi-dent, and all civil officers of the UnitedStates, shall be removed from office onimpeachment for, and conviction of,treason, bribery, or other high crimesand misdemeanors .

ARTICLE III

SECTION 1. The judicial power of theUnited States shall be vested in oneSupreme Court, and in such inferiorcourts as the Congress may from timeto time ordain and establish. Thejudges, both of the Supreme and infe-rior courts, shall hold their offices dur-ing good behavior, and shall, at statedtimes, receive for their services, a com-pensation, which shall not be dimin-ished during their continuance inoffice .

SECTION 2 . 1 . The judicial powershall extend to all cases, in law andequity, arising under this Constitution,the laws of the United States, and trea-ties made, or which shall be made,under their authority;-to all cases

1 50

affecting ambassadors, other publicministers and consuls ;-to all casesof admiralty and maritime jurisdic-tion ; - to controversies to which theUnited States shall be a party ; to con-troversies between two or more States ;- between a State and citizens of an-other State, 9-between citizens of dif-ferent States ; - between citizens ofthe same State claiming lands undergrants of different States, and [be-tween a State], or the citizens thereof,and [foreign] States, [citizens or sub-jects] .1 0

2. In all cases affecting ambassadors,other public ministers and consuls, andthose in which a State shall be party,the Supreme Court shall have originaljurisdiction . In all the other cases be-fore mentioned, the Supreme Courtshall have appellate jurisdiction, bothas to law and to fact, with such excep-tions, and under such regulations asthe Congress shall make .

3. The trial of all crimes, except incases of impeachment, shall be byjury; and such trial shall be held in theState where the said crimes shall havebeen committed; but when not com-mitted within any State, the trial shallbe at such place or places as the Con-gress may by law have directed .

SECTION 3 . 1 . Treason against theUnited States shall consist only in levy-ing war against them, or in adhering totheir enemies, giving them aid and

9See the 11th Amendment .10See the 11th Amendment.

omfort. No person shall be convictedif treason unless on the testimony ofwo witnesses to the same overt act, orin confession in open court.

. . The Congress shall have power toleclare the punishment of treason, butio attainder of treason shall work cor-uption of blood, or forfeiture exceptluring the life of the person attained .

ARTICLE IV

iECTION 1 . Full faith and credit shall:)e given in each State to the publicacts, records, and judicial proceed-ings of every other State. And the Con-gress may by general laws prescribethe manner in which such acts, rec-ords, and proceedings shall be proved,and the effect thereof .

SECTION 2 . 1 . The citizens of eachState shall be. entitled to all privilegesand immunities of citizens of the sev-eral States .-

2 . A person charged in any Statewith treason, felony, or other crime,who shall flee from justice, and befound in another State, shall on de-mand of the executive authority of theState from which he fled, be deliveredup to be removed to the State havingjurisdiction of the crime.

3. No person held to service orlabor in one State under the lawsthereof, escaping into another, shall,

11See the 14th Amendment, Sec . 1 .

in consequence of any law or regula-tion therein, be discharged from suchservice or labor, but shall be deliveredup on claim of the party to whom suchservice or labor may be due . 12

SECTION 3. 1 . New States may beadmitted by the Congress into this`Union; but no new State shall beformed or erected within the jurisdic-tion of any other State ; nor any Statebe formed by the junction of two ormore States, or parts of States, withoutthe consent of the legislatures of theStates concerned as well as of theCongress .

2 . The Congress shall have power todispose of and make all needful rulesand regulations respecting the terri-tory or other property belonging to theUnited States; and nothing in this Con-stitution shall be so construed as toprejudice any claims of the UnitedStates, or of any particular State .

SECTION 4. The United States shallguarantee to every State in the Uniona republican form of government, andshall protect each of them against in-vasion ; and on application of the leg-islature, or of the executive (whenthe legislature cannot be convened)against domestic violence .

ARTICLE V

The Congress, whenever two-thirds ofboth Houses shall deem it necessary,

12See the 13th Amendment.

15 1

shall propose amendments to this Con-stitution, or, on the application of thelegislatures of two-thirds of the sev-eral States, shall call a convention forproposing amendments, which ineither case shall be valid to all intentsand purposes, as part of this Constitu-tion when ratified by the legislaturesof three-fourths of the several States,or by conventions in three-fourthsthereof, as the one or the other modeof ratification may be proposed by theCongress; provided that no amend-ment which may be made prior tothe year one thousand eight hundredand eight shall in any manner affectthe first and fourth clauses in the ninthsection of the first article, and that noState, without its consent, shall bedeprived of its equal suffrage in theSenate .

ARTICLE VI

1 . All debts contracted and engage-ments entered into, before the adop-tion of this Constitution, shall be asvalid against the United States underthis Constitution, as under the Con-federation .

2. This Constitution, and the laws ofthe United States which shall be madein pursuance thereof ; and all treatiesmade, or which shall be made, underthe authority of the United States,shall be the supreme law of the land ;and the judges in every State shall bebound thereby, anything in the Con-stitution or laws of any State to thecontrary notwithstanding .

1 5 2

3 . The senators and representativebefore mentioned, and the members othe several State legislatures, and alexecutive and judicial officers, both othe United States and of the severaStates, shall be bound by oath or affirmation to support this Constitutionbut no religious test shall ever be required as a qualification to any offictor public trust under the United States

ARTICLE VII

The ratification of the conventions o :nine States shall be sufficient for theestablishment of this Constitution be-tween the States so ratifying the same

Done in Convention by the unanimouiconsent of the States present the seven-teenth day of September in the year ofour Lord one thousand seven hundredand eighty-seven, and of the indepen-dence of the United States of Americathe twelfth. In witness whereof wehave hereunto subscribed our names .

[Signatures omitted]

I

Articles in addition to, and amend-ment of, the Constitution of the UnitedStates of America, proposed by Con-gress, and ratified by the legislature ;of the several States pursuant to thefifth article of the original Constitu-tion .

AMENDMENTS

First Ten Amendments passed by CongressSeptember 25, 1789 .

Ratified by three-fourths of the StatesDecember 15, 1791 .

ARTICLE I

Congress shall make no law respectingan establishment of religion, or pro-hibiting the free exercise thereof; orabridging the freedom of speech, or ofthe press ; or the right of the peoplepeaceably to assemble, and to peti-tion the government for a redress ofgrievances .

ARTICLE II

A well regulated militia, being neces-sary to the security of a free State, theright of the people to keep and beararms, shall not be infringed.

ARTICLE III

No soldier shall, in time of peace bequartered in any house, without theconsent of the owner, nor in time ofwar, but in a manner to be prescribedby law.

ARTICLE IV

The right of the people to be secure intheir persons, houses, papers, andeffects, against unreasonable searchesand seizures, shall not be violated, and

no warrants shall issue, but upon prob-able cause, supported by oath or affir-mation, and particularly describingthe place to be searched, and the per-sons or things to be seized .

ARTICLE V

No person shall be held to answer fora capital, or otherwise infamous crime,unless on a presentment or indictmentof a grand jury, except in cases arisingin the land or naval forces, or in themilitia, when in actual service in timeof war or public danger ; nor shall anyperson be subject for the same offenseto be twice put in jeopardy of life orlimb; nor shall be compelled in anycriminal case to be a witness againsthimself, nor be deprived of life, liberty,or property, without due process oflaw; nor shall private property betaken for public use without just com-pensation.

ARTICLE VI

In all criminal prosecutions, the ac-cused shall enjoy the right to a speedyand public trial, by an impartial juryof the State and district wherein thecrime shall have been committed,which district shall have been pre-viously ascertained by law, and to beinformed of the nature and cause ofthe accusation ; to be confronted withthe witnesses against him ; to havecompulsory process for obtaining wit-nesses in his favor, and to have theassistance of counsel for his defense .

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ARTICLE VII

In suits at common law, where thevalue in controversy shall exceedtwenty dollars, the right of trial byjury shall be preserved, and no facttried by a jury shall be otherwise re-examined in any court of the UnitedStates, than according to the rules ofthe common law .

ARTICLE VIII

Excessive bail shall not be required,nor excessive fines imposed, nor crueland unusual punishments inflicted .

ARTICLE IX

The enumeration in the Constitutionof certain rights shall not be construedto deny or disparage others retainedby the people .

ARTICLE X

The powers not delegated to theUnited States by the Constitution, norprohibited by it to the States, are re-served to the States respectively, or tothe people .

ARTICLE XIPassed by Congress, 1794 .

Ratified, 1798 .

The judicial power of the United Statesshall not be construed to extend to any

suit in law or equity, commenced cprosecuted against one of the UniteStates by citizens of another State, cby citizens or subjects of any foreigState .

ARTICLE XIIPassed by Congress, 1803 .

Ratified, 1804 .

The electors shall meet in their respective States, and vote by ballot for President and Vice President, one of whomat least, shall not be an inhabitant othe same State with themselves ; the,shall name in their ballots the persotvoted for as President, and in distincballots, the person voted for as Vic(President, and they shall make distinclists of all persons voted for as Presi .dent and of all persons voted for a .Vice President, and of the number o :votes for each, which lists they shalsign and certify, and transmit sealecto the seat of the government of theUnited States, directed to the presidentof the Senate ;- The president of theSenate shall, in the presence of theSenate and House of Representativesopen all the certificates and the vote :shall then be counted ; -The persorrhaving the greatest number of vote :for President, shall be the President,if such number be a majority of thewhole number of electors appointedand if no person have such majority,then from the persons having thehighest numbers not exceeding threeon the list of those voted for as Presi-dent, the House of Representativesshall choose immediately, by ballot,the President. But in choosing the

President, the votes shall be taken byStates, the representation from eachState having one vote ; a quorum forthis purpose shall consist of a memberor members from two-thirds of theStates, and a majority of all the Statesshall be necessary to a choice . And ifthe House of Representatives shall notchoose a President whenever the rightof choice shall devolve upon them, be-fore the fourth day of March 13 nextfollowing, then the Vice Presidentshall act as President, as in the caseof the death or other constitutional dis-ability of the President . The personhaving the greatest number of votesas Vice President shall be the VicePresident, if such number be a ma-jority of the whole number of electorsappointed, and if no person have amajority, then from the two highestnumbers on the list, the Senate shallchoose the Vice President ; a quorumfor the purpose shall consist of two-thirds of the whole number of sen-ators, and a majority of the wholenumber shall be necessary to a choice .But no person constitutionally ineligi-ble to the office of President shall beeligible to that of Vice President of theUnited States .

ARTICLE XIIIPassed by Congress, 1865 .

Ratified, 1865 .

SECTION 1. Neither slavery nor invol-untary servitude, except as punishmentfor crime whereof the party shall havebeen duly convicted, shall exist within

13See the 20th Amendment .

the United States, or any place subjectto their jurisdiction .

SECTION 2 . Congress shall have powerto enforce this article by appropriatelegislation .

ARTICLE XIVPassed by Congress, 1866.

Ratified, 1868 .

SECTION 1 . All persons born or natu-ralized in the United States, and sub-ject to the jurisdiction thereof, are citi-zens of the United States and of theState wherein they reside . No Stateshall make or enforce any laws whichshall abridge the privileges or immuni-ties of citizens of the United States ; norshall any State deprive any person oflife, liberty, or property, without dueprocess of law; nor deny to any personwithin its jurisdiction the equal pro-tection of the laws .

SECTION 2. Representatives shall beapportioned among the several Statesaccording to their respective numbers,counting the whole number of personsin each State, excluding Indians nottaxed. But when the right to vote atany election for the choice of electorsfor President and Vice President ofthe United States, representatives inCongress, the executive and judicialofficers of a State, or the members ofthe legislature thereof, is denied to anyof the male inhabitants of such State,being twenty-one years of age, andcitizens of the United States, or in anyway abridged, except for participationin rebellion, or other crime, the basis

1 5 5

of representation therein shall be re-duced in the proportion which thenumber of such male citizens shallbear to the whole number of malecitizens twenty-one years of age insuch State .

SECTION 3 . No person shall be a sena-tor or representative in Congress, orelector of President and Vice Presi-dent, or hold any office, civil or mili-tary, under the United States, or underany State, who having previously takenan oath, as a member of Congress, oras an officer of the United States, or asa member of any State legislature, or asan executive or judicial officer of anyState, to support the Constitution ofthe United States, shall have engagedin insurrection or rebellion against thesame, or given aid or comfort to theenemies thereof. But Congress may bya vote of two-thirds of each House, re-move such disability.

SECTION 4. The validity of the publicdebt of the United States, authorizedby law, including debts incurred forpayment of pensions and bounties forservices in suppressing insurrection orrebellion, shall not be questioned . Butneither the United States nor any Stateshall assume or pay any debt or obliga-tion incurred in aid of insurrection orrebellion against the United States, orany claim for the loss or emancipationof any slave; but all such debts, obli-gations, and claims shall be held illegaland void .

SECTION 5 . The Congress shall havepower to enforce, by appropriate legis-

156

lation, the provisions of this article .

ARTICLE XVPassed by Congress, 1869 .

Ratified, 1870 .

SECTION 1. The right of citizens of theUnited States to vote shall not be de .nied or abridged by the United State,or by any State on account of race,color, or previous condition of servi-tude .

SECTION 2 . The Congress shall havepower to enforce this article by ap-propriate legislation .

ARTICLE XVIPassed by Congress, 1909 .

Ratified, 1913 .

The Congress shall have power to layand collect taxes on incomes, fromwhatever source derived, without ap-portionment among the several States,and without regard to any census orenumeration .

ARTICLE XVIIPassed by Congress, 1912 .

Ratified, 1913 .

The Senate of the United States shallbe composed of two senators fromeach State, elected by the peoplethereof, for six years ; and each senatorshall have one vote . The electors ineach State shall have the qualificationsrequisite for electors of the most num-

:rous branch of the State legislature .When vacancies happen in the rep-

esentation of any State in the Senate,he executive authority of such State,hall issue writs of election to fill such'acancies : Provided, that the legis-ature of any State may empower the;*cutive thereof to make temporaryappointments until the people fill thevacancies by election as the legislaturenay direct .

This amendment shall notbe so con-;trued as to affect the election or termAf any senator chosen before it be-;omes valid as part of the Constitution .

ARTICLE XVIIIPassed by Congress, 1917 .

Ratified, 1919 .

After one year from the ratification ofthis article, the manufacture, sale, ortransportation of intoxicating liquorswithin, the importation thereof into,or the exportation thereof from theUnited States and all territory subjectto the jurisdiction thereof for beveragepurposes is hereby prohibited .

The Congress and the several Statesshall have concurrent power to enforcethis article by appropriate legislation .

This article shall be inoperative un-less it shall have been ratified as anamendment to the Constitution by thelegislatures of the several States, asprovided in the Constitution, withinseven years from the date of the sub-mission hereof to the States by Con-gress .

ARTICLE XIXPassed by Congress, 1919.

Ratified, 1920.

The right of citizens of the UnitedStates to vote shall not be denied orabridged by the United States or byany State on account of sex .

The Congress shall have power byappropriate legislation to enforce theprovisions of this article .

ARTICLE XXPassed by Congress, 1932 .

Ratified, 1933 .

SECTION 1 . The terms of the Presidentand Vice President shall end at noonon the 20th day of January, and theterms of Senators and Representativesat noon on the 3rd day of January, ofthe years in which such terms wouldhave ended if this article had not beenratified ; and the terms of their suc-cessors shall then begin .

SECTION 2. The Congress shall as-semble at least once in every year, andsuch meeting shall begin at noon onthe 3rd day of January, unless theyshall by law appoint a different day .

SECTION 3. If, at the time fixed for thebeginning of the term of the President,the President-elect shall have died, theVice President-elect shall becomePresident. If a President shall not havebeen chosen before the time fixed forthe beginning of his term, or if thePresident-elect shall have failed to

1 57

qualify, then the Vice President-electshall act as President until a Presidentshall have qualified ; and the Congressmay by law provide for the case where-in neither a President-elect nor a VicePresident-elect shall have qualified,declaring who shall then act as Presi-dent, or the manner in which one whois to act shall be selected, and suchperson shall act accordingly until aPresident or Vice President shall havequalified .

SECTION 4. The Congress may by lawprovide for the case of the death ofany of the persons from whom theHouse of Representatives may choosea President whenever the right ofchoice shall have devolved upon them,and for the case of the death of any ofthe persons from whom the Senatemay choose a Vice President when-ever the right of choice shall havedevolved upon them .

SECTION 5 . Sections 1 and 2 shall takeeffect on the 15th day of October fol-lowing the ratification of this article .

SECTION 6. This article shall be in-operative unless it shall have beenratified as an amendment to the Con-stitution by the legislatures of three-fourths of the several States withinseven years from the date of its sub-mission .

ARTICLE XXIPassed by Congress, 1933 .

Ratified, 1933 .

SECTION 1 . The Eighteenth Article of

15 8

amendment to the Constitution of tiUnited States is hereby repealed .

SECTION 2 . The transportation or inportation into any State, Territory, cPossession of the United States for delivery or use therein of intoxicatinliquors in violation of the laws therebis hereby profited .

SECTION 3 . This article shall be ir.operative unlew it shall have been ratfled as an at to the Constitttion by conventions in the sevenStates, as provided in the Constitutiorwithin seven years from the date cthe submission thereof to the Stateby the Congress .

ARTICLE XXIIPassed by Congress, 1947 .

Ratified, 1951 .

No person shaN be elected to the officeof the President more than twice, amno person who has held the office oPresident, or acted as President, fomore than two years of a term to whiclsome other person was elected President shall be elected to the office othe President more than once .

But this article shall not apply t(any person holding the office of President when, this article was propose(by the Congress, and shall not prevenany person who may be holding thioffice of President, or acting as President, during the term within whiclthis article becomes operative fronholding the office of President or acting as President during the remainde:of such term .

This article shall be inoperative un-less it shall have been ratified as anamendment to the Constitution by thelegislatures of three-fourths of theseveral states within_ seven years fromthe date of its submission to the Statesby the Congress .

ARTICLE XXIIIPassed by Congress, 1960 .

Ratified, 1961 .

SECTION 1 . The District constitutingthe seat of government of the UnitedStates shall appoint in such manner asthe Congress may direct :

A number of electors of Presidentand Vice President equal to the wholenumber of senators and representa-tives in Congress to which the Districtwould be entitled if it were a State, butin no event more than the least popu-lous State ; they shall be in addition tothose appointed by the States, but shallbe considered, for the purpose of theelection of President and Vice Presi-dent, to be electors appointed by aState ; and they shall meet in the Dis-trict and perform such duties asprovided by the Twelfth Article ofamendment .

SECTION 2. The Congress shall havethe power to enforce this article byappropriate legislation .

ARTICLE XXIVPassed by Congress, 1962 .

Ratified, 1964 .

SECTION 1 . The right of citizens of the

United States to vote in any primary orother election for President or VicePresident, for electors for President orVice President, or for senator or rep-resentative in Congress, shall not bedenied or abridged by the UnitedStates or any State by reason of failureto pay any poll tax or other tax .

SECTION 2. The Congress shall havethe power to enforce this article byappropriate legislation .

ARTICLE XXVPassed by Congress, 1965 .

Ratified, 1967 .

SECTION 1 . In case of the removal ofthe President from office or his deathor resignation, the Vice President shallbecome President .

SECTION 2 . Whenever there is a va-cancy in the office of the Vice Presi-dent, the President shall nominate aVice President who shall take theoffice upon confirmation by a majorityvote of both houses of Congress .

SECTION 3 . Whenever the Presidenttransmits to the president pro temporeof the Senate and the Speaker of theHouse of Representatives his writtendeclaration that he is unable to dis-charge the powers and duties of hisoffice, and until he transmits to thema written declaration to the contrary,such powers and duties shall be dis-charged by the Vice President as Act-ing President .

1 5 9

SECTION 4. Whenever the Vice Presi-dent and a majority of either the prin-cipal officers of the executive depart-ments, or of such other body as Con-gress may by law provide, transmit tothe president pro tempore of the Sen-ate and the Speaker of the House ofRepresentatives their written declara-tion that the President is unable todischarge the powers and duties of hisoffice, the Vice- President shall im-mediately assume the powers andduties of the office as Acting President .

Thereafter, when the Presidenttransmits to the president pro temporeof the Senate and the Speaker of theHouse of Representatives his writtendeclaration that no inability exists,he shall resume the powers and dutiesof his office unless the Vice Presidentand a majority of either the prin-cipal officers of the executive depart-ment, or of such other body of Con-

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gress may by law provide, transmiwithin four days to the president pritempore of the Senate and the Speakeof the House of Representatives theiwritten declaration that the Presidenis unable to discharge the powers ancduties of his office . Thereupon Congress shall decide the issue, assemblinjwithin forty-eight hours for that purpose if not in session . If the Congresswithin twenty-one days after receipt o:the latter written declaration, or, isCongress is not in session, withirtwenty-one days after Congress i,required to assemble, determine,by two-thirds vote of both house,,that the President is unable to dis-charge the, powers and duties of MEoffice, the Vice President shall con-tinue to discharge the same as ActingPresident ; otherwise, the Presidentshall resume the powers and duties ofhis office .