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PROPOSING AN AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES TO PROTECT THE RIGHTS OF CRIME VICTIMS--Motion to Proceed--Continued
(Senate - April 26, 2000)

Text of this article available as: TXT PDF [Pages S2910-S2930] PROPOSING AN AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES TO PROTECT THE RIGHTS OF CRIME VICTIMS--Motion to Proceed--Continued The PRESIDING OFFICER. The Senator from Connecticut. Mr. DODD. Mr. President, I ask unanimous consent to yield my time to the distinguished senior Senator from West Virginia. The PRESIDING OFFICER. Without objection, it is so ordered. The Senator from West Virginia. Mr. BYRD. Mr. President, I have listened to the comments by my colleagues, those who are proponents of the proposed constitutional amendment before the Senate, and I have listened to the comments of many of my colleagues who have spoken in opposition to the proposed amendment. I compliment both sides on the debate. I think it is an enlightening debate. I will have more to say if the motion to proceed is agreed to. In view of the statements that have been made by several of those who are opposed to the amendment--the Senator from New York (Mr. Schumer), the Senator from Illinois (Mr. Durbin), and the Senator from Connecticut (Mr. Dodd), and others, they have cogently and succinctly expressed my sentiments in opposition to the amendment. I congratulate the Senator from Vermont, Mr. Leahy, on his statements in opposition thereto, as well as the leadership he has demonstrated not only on this proposed constitutional amendment but also in reference to other constitutional amendments before the Senate in recent days and in years past. He is a dedicated Senator in every respect. He certainly is dedicated to this Federal Constitution and very ably defends the Constitution. I do not say that our Constitution is static. John Marshall said it was a Constitution that was meant for the ages. I will go into that more deeply later. At a later date, I will address this particular amendment. But having been a Member of the Congress now going on 48 years, I may not be an expert on the Constitution, but I have become an expert observer of what is happening in this Congress and its predecessor Congresses, and an observer of what is happening by way of the Constitution. I consider myself to be as much an expert in that regard as anybody living because I have been around longer than most people. I have now been a Member of Congress, including both Houses, longer than any other Member of the 535 Members of Congress today. I must say that I am very concerned about the cavalierness which I have observed with respect to the offering of constitutional amendments. There seems to be a cavalier spirit abroad which seems to say that if it is good politically, if it sounds good politically, if it looks good politically, if it will get votes, let's introduce an amendment to the Constitution. I am not saying that with respect to proponents of this amendment, but, in my own judgment, I have seen a lot of that going on. I don't think there is, generally speaking, a clear understanding and appreciation of American constitutionalism. I don't think there is an understanding of where the roots of this Constitution go. I don't think there is an appreciation for the fact that the roots of this Constitution go 1,000 years or more back into antiquity. I do not address this proposed constitutional amendment as something that is necessary, nor do I address this, the Constitution today, as something that just goes back to the year 1787, 212 years ago. The Constitution was written by men who had ample experience, who benefited by their experience as former Governors, as former members of their State legislatures, as former members of the colonial legislatures which preceded the State legislatures, as former Members of the Continental Congress which began in 1794, as Members of the Congress under the Articles of Confederation which became effective in 1781. Some of the members of the convention came from England, from Scotland, from Ireland. Alexander Hamilton was born in the West Indies. These men were very well acquainted with the experiences of the colonialists. They were very much aware of the weaknesses, the flaws in the Articles of Confederation. They understood the State constitutions. Most of the 13 State constitutions were written in the years 1776 and 1777. Many of the men who sat in the Constitutional Convention of 1787 had helped to create those State constitutions of 1776 and 1777 and subsequent thereto. Many of them had experience on the bench. They had experiences in dealing with Great Britain during and prior to the American Revolution. Some of them had fought in Gen. George Washington's polyglot, motley army. These men came with great experience. Franklin was 81 years [[Page S2911]] old. Hamilton was 30. The tall man with the peg leg, Gouverneur Morris, was 35. Madison was 36. They were young in years, but they had tremendous experience back of those years. So the Constitution carries with it the lessons of the experiences of the men who wrote it. They were steeped in the classics. They were steeped in ancient history. They knew about Polybius. They knew how he wrote about mixed government. They knew what Herodotus had to say about mixed government. They knew what other great Greek and Roman authors of history had learned by experience, centuries before the 18th century. They knew about the oppression of tyrannical English monarchs. They knew the importance of the English Constitution, of the Magna Carta, of the English Bill of Rights in 1689. They knew about the English Petition of Right in 1628. All of these were parts of the English Constitution, an unwritten Constitution except for those documents, some of which I have named--the Petition of Right, the Magna Carta, the decisions of English courts, and English statutes. So to stand here and say, in essence, that the Constitution reflects the viewpoints of the men who wrote that Constitution in 1787, or only reflects the views of our American predecessors of 1789, or those who ratified the Constitution in 1790 or in 1791, is only a partial truth. The roots of this Constitution--a copy of which I hold in my hand--go back 1,000 years, long before 1787, long before 1791 when the first 10 amendments which constitute the American Bill of Rights were ratified. That was only a milestone along the way--1787, 1791. These were mere milestones along the way to the real truths, the real values that are in this Constitution, a copy of which I hold in my hand. Those are only milestones along the way, far beyond 1787, far beyond 1776 or 1775 or 1774. Why was that revolution fought? Why did our forbears take stand there on the field of Lexington, on April 19, and shed their blood? Why was that revolution fought? It was fought on behalf of liberty. That is what this Constitution is all about--liberty, the rights of a free people, the liberties of a free people. Liberty, freedom from oppression, freedom from oppressive government, that is why they shed their blood at Lexington and at Bunker Hill and at Kings Mountain and at Valley Forge, down through the decades and the centuries. The blood of Englishmen was spilled centuries earlier in the interests of liberty, in the interests of freedom: Freedom of the press, freedom to speak, freedom to stand on their feet in Parliament and speak out against the King, freedom from the oppression of the heavy hand of government. That is what that Constitution is about. There are those who think that the Constitution sprang from the great minds of those 39 men who signed the Constitution at the Convention, of the 55 who attended the meetings of the Convention--some believe that it sprang from their minds right on the spot. Some believe that it came, like manna from Heaven, fell into their arms. It sprang like Minerva from the brain of Jove. That is what they think. No, I say a miracle happened at Philadelphia, but that was not the miracle. The miracle that occurred at Philadelphia was the miracle that these minds of illustrious men gathered at a given point in time, at Philadelphia, and over a period of 116 days wrote this Constitution. It could not have happened 5 years earlier because they were not ready for it. Their experiences of living under the Articles of Confederation had not yet ripened to a point where they were ready to accept the fact that there had to be a new government, a new constitution written. And it could not have happened 5 years later because the violence that they saw in France, as the guillotine claimed life after life after life, had not yet happened. Some 5 years later, they would have seen that violence of the French Revolution, and they would have recoiled in horror from it. The writing of this Constitution happened at the right time, at the right place, and it was written by the right men. That was the miracle of Philadelphia. Here we are today talking about amending it, this great document, the greatest document of its kind that was ever written in the history of the world. There is nothing to compare it with, by way of man-made documents. Who would attempt to amend the Ten Commandments that were handed down to Moses? Not I. Yet, we, little pygmies on this great stage, before the world, would attempt to pit our talents and our wisdom against the talents and wisdom, the experience and the viewpoints of men such as George Washington, James Madison, Alexander Hamilton, Gouverneur Morris, Benjamin Franklin, John Dickenson, James Wilson, Roger Sherman? In article V of this Constitution, they had the foresight to write the standard. If we want to find the standard for this Constitutional amendment, or any other Constitutional amendment here is the standard in the Constitution itself. The Congress, whenever two-thirds of both Houses shall deem it necessary-- The Congress, whenever two thirds of both Houses shall deem it necessary-- shall propose Amendments. . . . I don't say that the Constitution is static. I don't say it never should be amended. I would vote for a constitutional amendment if I deemed it ``necessary.'' Certainly, I do not see this proposed amendment as necessary, but I will have more to say about that later. I don't say that the Constitution is perfect. I do say that there is no other comparable document in the world that has ever been created by man. And when that Constitution uses the word ``necessary,'' it means ``necessary,'' because no word in that Constitution was just put into that document as a place filler. I do think this is a time that I might speak a little about the constitutionalism behind the American Constitution. I think it might be well for anyone who might be patient enough or interested enough, to hear what I am going to say, because I don't think enough people understand the Constitution. I am sure they don't understand the roots of the Constitution. They don't understand American constitutionalism. It is a unique constitutionalism, the American constitutionalism. I don't think most people understand it. In response to a recent nationwide poll, 91 percent of the respondents agreed with this statement: ``The U.S. Constitution is important to me.'' Mr. President, 91 percent of the respondents agreed to that: ``The U.S. Constitution is important to me.'' Yet only 19 percent of the people polled knew that the Constitution was written in 1787; only 66 percent recognized the first 10 amendments to the Constitution as the Bill of Rights--only 66 percent. Only 58 percent answered correctly that there were three branches of the Federal Government; 17 percent were able to recall that freedom of assembly is guaranteed by the first amendment to the Constitution--17 percent, 17 percent. Yet you see them out here all the time, on the Capitol steps, assembling, petitioning the Government for a redress of what they conceive to be grievances. They know they have that right, but only 17 percent were able to recall that freedom of assembly is guaranteed by the first amendment to the Constitution. Only 7 percent remembered that the Constitution was written at the Constitutional Convention; 85 percent believed that the Constitution stated that ``All men are created equal''--or failed to answer the question; and only 58 percent agreed that the following statement is false: ``The Constitution states that the first language of the U.S. is English.'' The American people love the Constitution. They believe the Constitution is good for them collectively and individually, but they do not understand much about it. And the same can be said with respect to constitutionalism. The same can be said with respect to the Members of Congress; that means both Houses. Not a huge number, I would wager, of the Members of the Congress of both Houses know a great deal about the Constitution. How many of them have ever read it twice? Each of us takes an oath to support and defend the Constitution of the United States every time we are elected or reelected. We stand right up at that desk with our hand on the Bible--at least that is the image people have of us--and we swear in the presence of men and Almighty God to support and defend that Constitution. How many of us have read it twice? How many of us [[Page S2912]] really know what is in that Constitution? And yet we will suggest amendments to it. With 91 percent of the people polled agreeing that the U.S. Constitution is important to themselves, it is a sad commentary that this national poll would reveal that so many of these same Americans are so hugely ignorant of their Constitution and of the American history that is relevant thereto. Let us think together for a little while about this marvelous Constitution, its roots and origins and, in essence, the genesis of American constitutionalism--a subject about which volumes have been written and will continue to be written. It is with temerity that I would venture to expound upon such a grand subject, but I do so with a full awareness of my own limited knowledge and capabilities in this respect, which I freely admit, and for which I just as freely apologize. Nonetheless, let us have at it because the clock is running and time stops for no one, not even a modern day Joshua. Was Gladstone correct in his reputed declaration that the Constitution was ``the most wonderful work ever struck off at a given time by the brain and purpose of man''? Well, hardly. In 1787, the only written constitutions in the world existed in English-speaking America, where there were 13 State constitutions and a constitution for the Confederation of the States, which was agreed upon and ratified in 1781. That was our first National Constitution. Americans were the heirs of a constitutional tradition that was mature by the time of the Convention that met in Philadelphia. Americans had tested that tradition between 1776 and 1787 by writing eleven of the State constitutions and the Articles of Confederation. Later, with the writing of the United States Constitution, they brought to completion the tradition of constitutional design that had begun a century and a- half or two centuries earlier. So when someone stands here and says that this Constitution just represents what those people of 1789 or 1787 or 1791 believed, what they thought, then I say we had better stop, look, and listen. The work of the Framers brought to completion the tradition of constitutional design that had begun a century and a half or two centuries earlier right here in America. Let us move back in point of time and attempt to trace the roots of what is in this great organic document, the Constitution of the United States. Looking back, the search--we are going backward in time now-- takes us first to the Articles of Confederation. A lot of people in this country do not know that the Articles of Confederation ever existed. They have forgotten about them. They never hear about them anymore. And then to the earliest State constitutions, and back of these--going back, back in point of time--were the colonial foundation documents that are essentially constitutional, such as the Pilgrim Code of Law, and then to the proto-constitutions, such as the Fundamental Orders of Connecticut and the Mayflower Compact. As one scholar, Donald S. Lutz, has noted: The political covenants written by English colonists in America lead us to the church covenants written by radical Protestants in the late 1500's and early 1600's, and these in turn lead us back to the Covenant tradition of the Old Testament. It is appropriate, for our purposes here to focus for a short time on those Old Testament covenant traditions because they were familiar not only to the early settlers from Europe--your forebears and mine--but also to the learned men who framed the United States Constitution. In the book of Genesis we are told that the Lord appeared to Abram saying: ``Get thee out of thy country, and from thy kindred, and from thy father's house, unto a land that I will show thee: and I will make of thee a great nation, and I will bless thee, and make thy name great;'' (Genesis 12:1,2) In Chapter 17 of Genesis, verses 4-7, God told Abram: ``As for me, behold, my covenant is with thee, and thou shalt be a father of many nations. Neither shall thy name any more be called Abram, but thy name shall be Abraham; for a father of many nations have I made thee. . . . And I will make nations of thee, and kings shall come out of thee. And I will establish my covenant between me and thee and thy seed after thee in their generations for an everlasting covenant, to be a God unto thee, and to thy seed after thee.'' Again, speaking to Abraham, God said: ``This is my covenant, which ye shall keep, between me and you and thy seed after thee; Every man child among you shall be circumcised.'' (Genesis 17:10) The Abrahamic covenant was confirmed upon subsequent occasions, one of which occurred after Abraham had prepared to offer Isaac, his son, as a burnt offering in obedience to God's command, at which time an angel of the Lord called out from heaven and commanded Abraham, ``Lay not thine hand upon the lad, . . . for now I know that thou fearest God.'' (Genesis 22:12) The Lord then spoke to Abraham saying, ``I will bless thee, and in multiplying, I will multiply thy seed as the stars of the heaven, and as the sand which is upon the sea shore . . . because thou hast obeyed my voice.'' (Genesis 22:17,18) God's covenant with Abraham was later confirmed in an appearance before Isaac, saying: ``Go not down into Egypt; dwell in the land which I shall tell thee of.'' Sojourn (see Gen. 26:3-5) God subsequently confirmed and renewed this covenant with Jacob, as he slept with his head upon stones for his pillows and dreamed of a ladder set upon the earth, and the top of it reached to heaven, with angels of God ascending and descending on it. God spoke, saying: ``I am the Lord God of Abraham, . . . and the God of Isaac: the land whereon thou liest, to thee will I give it, and to thy seed; and thy seed shall be as the dust of the earth . . . and in thee and in thy seed shall all the families of the earth be blessed.'' (Genesis 28:11-14) At Bethel, in the land of Canaan, Jacob built an altar to God, and God appeared unto Jacob, saying: ``Thy name is Jacob; thy name shall not be called any more Jacob, but Israel shall be thy name.'' And God said unto him, ``I am God almighty: be fruitful and multiply; a nation and a company of nations shall be of thee, and kings shall come out of thy loins; and the land which I gave Abraham and Isaac, to thee I will give it, and to thy seed after thee will I give the land.'' (Genesis 35:10,11) The book of Exodus takes up where Genesis leaves off, and we find that the descendants of Jacob had become a nation of slaves in Egypt. After a sojourn that lasted 430 years, God then brought the Israelites out of Egypt that he might bring them as his own prepared people into the Promised Land. Exodus deals with the birth of a nation, and all subsequent Hebrew history looks back to Exodus as the compilation of the acts of God that constituted the Hebrews a nation. Thus far, we have seen the successive covenants entered into between God and Abraham and between God and Isaac and between God and Jacob; we have seen the creation of a nation through what might be described as a federation--there is the first system of federalism--a federation of the 12 tribes of Israel, the 12 sons of Jacob having been recognized as the patriarchs of their respective tribes. Joshua succeeded Moses as leader of the Israelites. Then came the prophets and the judges of Israel, and the turmoils of the divided kingdoms of Judah and Israel. Samuel anointed the first king--Saul, and the kingship of David followed. Thus we see the establishment of a monarchy. God covenanted with David, speaking to him through Nathan the prophet, and God promised to raise up David's seed after his death, according to which a son would be born of David, whose name would be Solomon. Furthermore, Solomon would build a house for the Lord and would receive wisdom and understanding. The Ark of the Covenant of the Lord, and the holy vessels of God, would be brought into the sanctuary that was to be built to the name of the Lord. Now I have spoken of the creation of the Hebrew nation, and not without good reason. The American constitutional tradition derives much of its form and much of its content from the Judeo-Christian tradition as interpreted by the radical Protestant sects to which belonged so many of the original European settlers in British North America. Donald S. Lutz, in his work entitled ``The Origins of American Constitutionalism'', says: ``The tribes of Israel [[Page S2913]] shared a covenant that made them a nation. American federalism originated at least in part in the dissenting Protestants' familiarity with the Bible''. The early Calvinist settlers who came to this country from the Old World brought with them a familiarity with the Old Testament covenants that made them especially apt in the formation of colonial documents and state constitutions. Winton U. Solberg tells us that in 17th-century colonial thought, divine law, a fusion of the law of nature in the Old and New Testaments, usually stood as fundamental law. The Mayflower Compact--we have all heard of that--the Mayflower Compact exemplified the Doctrine of Covenant or Contract. Puritanism exalted the biblical component and drew on certain scriptural passages for a theological outlook. Called the Covenant or Federal Theology, this was a theory of contract regarding man's relations with God and the nature of church and state. Man was deemed an impotent sinner until he received God's grace, and then he became the material out of which sacred and civil communities were built. Another factor that contributed to the knowledge of the colonists and to their experience in the formation of local governments, was the typical charter from the English Crown. These charters generally required that the colonists pledge their loyalty to the Crown, but left up to them, the colonists, the formation of local governments as long as the laws which the colonists established comported with, and were not repugnant to, the laws of England. Boards of Directors in England nominally controlled the colonies. The fact that the colonies were operating thousands of miles away from the British Isles, together with the fact that the British Government was so involved in a bloody civil war, made it possible for the American colonies to operate and evolve with much greater freedom and latitude than would otherwise have been the case. The experiences gained by the colonists in writing documents that formed the basis for local governments, and the benefits that flowed from experience in the administration of those colonial governments, contributed greatly to the reservoir of understanding of politics and constitutional principles developed by the Framers. Although the Constitution makes no specific mention of federalism, the federal system of 1787 was not something new to the Framers. Compacts had long been used as a device to knit settlements together. For example, the Fundamental Orders of Connecticut, 1639, established a Common government for the towns of Hartford, Windsor, and Wethersfield, while each town government remained intact. In 1642, the towns of Providence, Pocasset, Portsmouth, and Warwick in Rhode Island devised a compact known as the Organization of the Government of Rhode Island, a federation which became a united colony under the 1663 Rhode Island Charter. The New England Confederation of 1643 was a compact for uniting the colonies of Massachusetts, Connecticut, Plymouth, and New Haven, each of which was comprised of several towns that maintained their respective governments intact. Thus, the Framers were guided by a long experience with federalism or confederalism, including the Articles of Confederation--an experience that was helpful in devising the new national federal system. Lutz says that the states, in writing new constitutions in the 1770s, ``drew heavily upon their respective colonial experience and institutions. In American constitutionalism, there was more continuity and from an earlier date than is generally credited.'' That is why I am here today speaking on this subject. Let it be heard. Let it be known that the roots of this Constitution go farther back than 1787, farther back than its ratification in 1791--farther back. They were writing based on historical experiences that went back 1,000 years, before the Magna Carta, back to the Anglo-Saxons, back another 2,000 years, back another 1,500 years, back to the federalism of the Jewish tribes of Israel and Judah. Wake up. This Constitution wasn't just born yesterday or in 1787. Let us go back to history. Let us study the history of American constitutionalism, its roots, how men suffered under oppressive governments. Then we will have a little better understanding of this Constitution. No, the Constitution is not static. History is not static. The journey of mankind over the centuries is not static. We can always learn from history. To what extent were the Framers influenced by political theorists and republican spokesmen from Britain and the Continent? According to Solberg, republican spokesmen in England constituted an important link on the road to the realization of a republic in the United States. I hear Senators stand on this floor and say that we live in a democracy. This is not a democracy. This is a republic. You don't have to believe Robert C. Byrd. Go to Madison, go to ``The Federalist Papers,'' Federalist Paper No. 10 or Federalist Paper No. 14--those of you who are listening--and you will find the definition of a democracy and the definition of a republic. You will find the difference between the two. John Milton, whose literary accomplishments and Puritanism assured him of notice in the colonies, was significant for the views expressed in his political writings. He supported the sovereign power of the people, argued for freedom of publications, and justified the death penalty for tyrants. English political thinkers who influenced American constitutionalism and who exerted an important influence in the colonies were Bolingbroke, Addison, Pope, Hobbes, Blackstone, and Sir Edward Coke. And there were others. John Locke may be said to have symbolized the dominant political tradition in America down to and in the convention of 1787. Locke equated property with ``life, liberty, and estate'' and was the crucial right on which man's development depends. Nature, Locke thought, creates rights. Society and government are only auxiliaries which arise when men consent to create them in order to preserve property in the larger sense, and a community calls government into being to secure additional protection for existing rights. As representatives of the people, the legislature is supreme but is itself controlled by the fundamental law. Locke limits government by separating the legislative and administrative functions of government to the end that power may not be monopolized. That is assured by our Constitution also. The people possess the ultimate right of resisting a government which abuses its delegated powers. Such a violation of the contract justified the community in resuming authority. David Hume dealt with the problem of faction in a large republic, and promoted the device of fragmenting election districts. Madison, when faced with the same problem in preparing for the federal convention, supported the idea of an extended republic--drawing upon Hume's solution. Blackstone's view was that Parliament was supreme in the British system and that the locus of sovereignty was in the lawmaking body. His absolute doctrine was summed up in the aphorism that ``Parliament can do anything except make a man a woman or a woman a man.'' His ``Commentaries on the Laws of England'' was the most complete survey of the English legal system ever composed by a single hand. The commentaries occupied a crucial role in legal education, and many of Blackstone's ideas were uppermost on American soil from 1776 to 1787, with vital significance for constitutional development both in the states and in Philadelphia. Although delegates to the convention acknowledged Blackstone as the preeminent authority on English law, they, nevertheless, succeeded in separating themselves from some of his other views. James Harrington's ``Oceana'' presented a republican constitution for England in the guise of a utopia. He concluded that since power does follow property, especially landed property, the stability of society depends on political representation reflecting the actual ownership of property. The distinguishing feature of Harrington's commonwealth was ``an empire of laws and not of men.'' Harrington proposed an elective ballot, rotation in office, indirect election, and a two-chamber legislature. This goes back a long way, doesn't it? [[Page S2914]] Harrington proposed legislative bicameralism as a precaution against the dangers of extreme democracy, even in a commonwealth in which property ownership was widespread. He argued that a small and conservative Senate should be able to initiate and discuss but not decide measures, whereas a large and popular house should resolve for or against these without discussion. These were novel but significant ideas that became influential in America, in this country, before 1787. John Adams was an ardent disciple of Harrington's views. James Harrington was the modern advocate of mixed government most influential in America. That is what ours is. The government of his ``Oceana'' consisted of a Senate which represented the aristocracy; a huge assembly elected by the common people, thus representing a democracy; and an executive, representing the monarchical element, to provide a balancing of power. Harrington's respect for mixed government was shared by Algernon Sidney, who declared: ``There never was a good government in the world that did not consist of the three simple species of monarchy, aristocracy, and democracy.'' The mixed government theorists saw the British king, the House of Lords, and the House of Commons as an example of a successful mixed government. The notion of mixed government goes all the way back to Herodotus, and who knows how far beyond. It was a notion that had been around for several centuries. Herodotus in his writings concerning Persia had expounded on the idea, but it had lost popularity until it was revived by the historian Polybius who lived between the years circa 205-125 B.C. It was a governmental form that pitted the organs of government representing monarchy, aristocracy, and democracy against each other to achieve balance and, thus, stability. The practice of mixed government collapsed along with the Roman Republic, but the doctrine was revived in 17th century England--now we are getting closer--from which it passed to the New World. Those who wrote the Constitution weren't just writing based on the experiences of their time. Let us turn now to a consideration of the renowned French philosopher and writer, Montesquieu. Montesquieu had a considerable impact upon the political thinking of our constitutional Framers. They were conversant with the political theory and philosophy of Montesquieu, who was born 1689--a hundred years before our Republic was formed--and died in 1755. He died just 32 years before our constitutional forebears met in Philadelphia. Americans of the Revolutionary period were well acquainted with the philosophical and political writings of Montesquieu in reference to the separation of powers, and John Adams was particularly strong in supporting the doctrine of separation of powers in a mixed government. Montesquieu advocated the principle of separation of powers. He possessed a belief, which was faulty, that a huge territory did not lend itself to a large republic. He believed that government in a vast expanse of territory would require force and this would lead to tyranny. He believed that the judicial, executive, and legislative powers should be separated. If they were kept separated, the result would be political freedom, but if these various powers were concentrated in one man, as in his native France, then the result would be tyranny. Montesquieu visited the more important and larger political divisions of Europe and spent a considerable time in England. His extensive English connections had a strong influence on the development of his political philosophy. We are acquainted with his ``Spirit of the Laws'' and with his ``Persian Letters,'' but perhaps we are not so familiar with the fact that he also wrote an analysis of the history of the Romans and the Roman state. This essay, titled ``Considerations on the Causes of the Greatness of the Romans and their Decline,'' was produced in 1734. Considering the fact that Montesquieu was so deeply impressed with the ancient Romans and their system of government, and in further consideration of his influence upon the thinking of the Framers and upon the thinking of educated Americans generally during the period of the American Revolution, let us consider the Roman system as it was seen by Polybius, the Greek historian, who lived in Rome from 168 B.C., following the battle of Pydna, until after 150 B.C., at a time when the Roman Republic was at a pinnacle of majesty that excited his admiration and comment. Years later, Adams recalled that the writings of Polybius ``Were in the contemplation of those who framed the American Constitution.'' Polybius provided the most detailed analysis of mixed government theory. He agreed that the best constitution assigned approximately equal amounts of power to the three orders of society and explained that only a mixed government could circumvent the cycle of discord which was the inevitable product of the simple forms. Polybius saw the cycle as beginning when primitive man, suffering from violence, privation, and fear, consented to be ruled by a strong and brave leader. When the son was chosen to succeed this leader, in the expectation that the son's lineage would lead him to emulate his father, the son, having been accustomed to a special status from birth, was lacking in a sense of duty to the public and, after acquiring power, sought to distinguish himself from the rest of the people. Thus, monarchy deteriorated into tyranny. The tyranny then would be overturned by the noblest of aristocrats who were willing to risk their lives. The people naturally chose them to succeed the king as ruler, the result being ``ruled by the best,''--an aristocracy. Soon, however, aristocracy deteriorated into oligarchy because, in time, the aristocrats' children placed their own welfare above the welfare of the people. A democracy was created when the oppressed people rebelled against the oligarchy. But in a democracy, the wealthy corrupted the people with bribes and created faction in order to raise themselves above the common level in the search for status and privilege and additional wealth. Violence then resulted and ochlocracy (mob rule) came into being. As the chaos mounted to epic proportions, the people's sentiment grew in the direction of a dictatorship, and monarchy reappeared. Polybius believed that this cycle would repeat itself over and over again indefinitely until the eyes of the people opened to the wisdom of balancing the power of the three orders. Polybius considered the Roman Republic to be the most outstanding example of mixed government. Polybius viewed the Roman Constitution as having three elements: the executive, the Senate, and the people; with their respective shares of power in the state regulated by a scrupulous regard to equality and equilibrium. Let us examine this separation of powers in the Roman Republic as explained by Polybius. The consuls--representing the executive--were the supreme masters of the administration of the government when remaining in Rome. All of the other magistrates, except the tribunes, were under the consuls and took their orders from the consuls. The consuls brought matters before the Senate that required its deliberation, and they saw to the execution of the Senate's decrees. In matters requiring the authorization of the people, a consul summoned the popular meetings, presented the proposals for their decision, and carried out the decrees of the majority. The majority rules. In matters of war, the consuls imposed such levies upon manpower as the consuls deemed appropriate, and made up the roll for soldiers and selected those who were suitable. Consuls had absolute power to inflict punishment upon all who were under their command, and had all but absolute power in the conduct of military campaigns. As to the Senate, it had complete control over the treasury, and it regulated receipts and disbursements alike. The quaestors (or secretaries of the treasury) could not issue any public money to the various departments of the state without a decree of the Senate. The Senate also controlled the money for the repair and construction of public works and public buildings throughout Italy, and this money could not be obtained by the censors, who oversaw the contracts for public works and public buildings, except by the grant of the Senate. [[Page S2915]] The Senate also had jurisdiction over all crimes in Italy requiring a public investigation, such as treason, conspiracy, poisoning, or willful murder, as well as controversies between and among allied states. Receptions for ambassadors, and matters affecting foreign states, were the business of the Senate. What part of the Constitution was left to the people? The people participated in the ratification of treaties and alliances, and decided questions of war and peace. The people passed and repealed laws-- subject to the Senate's veto--and bestowed public offices on the deserving, which, according to Polybius, ``are the most honorable rewards for virtue.'' Polybius, having described the separation of powers under the Roman Constitution, how did the three parts of state check and balance each other? Polybius explained the checks and balances of the Roman Constitution, as he had observed them first hand. Remember, he was living in Rome at the time. What were the checks upon the consul, the executive? The consul-- whose power over the administration of the government when in the city, and over the military when in the field, appeared absolute--still had need of the support of the Senate and the people. The consul needed supplies for his legions, but without a decree of the Senate, his soldiers could be supplied with neither corn nor clothes nor pay. Moreover, all of his plans would be futile if the Senate shrank from danger, or if the Senate opposed his plans or sought to hamper them. Therefore, whether the consul could bring any undertaking to a successful conclusion depended upon the Senate, which had the absolute power, at the end of the consul's one-year term, to replace him with another consul or to extend his command or his tenure. The consuls were also obliged to court the favor of the people, so here is the check of the people against the consuls, for it was the people who would ratify, or refuse to ratify, the terms of peace. But most of all, the consuls, when laying down their office at the conclusion of their one-year term, would have to give an accounting of their administration, both to the Senate and to the people. It was necessary, therefore, that the consuls maintain the good will of both the Senate and the people. What were the checks against the Senate? The Senate was obliged to take the multitude into account and respect the wishes of the people, for in matters directly affecting the Senators--for instance, in the case of a law diminishing the Senate's traditional authority, or depriving Senators of certain dignities, or even actually reducing the property of Senators--in such cases, the people had the power to pass or reject the laws of the Assembly. In addition, according to Polybius, if the tribunes imposed their veto, the Senate would not only be unable to pass a decree, but could not even hold a meeting. And because the tribunes must always have a regard for the people's wishes, the Senate could not neglect the feelings of the multitude. But as a counter balance, what check was there against the people? We have seen certain checks against the consul; we have described some of the checks against the Senate. What about the people? According to Polybius, the people were far from being independent of the Senate, and were bound to take its wishes into account, both collectively and individually. For example, contracts were given out in all parts of Italy by the censors for the repair and construction of public works and public buildings. Then there was the matter of the collection of revenues from rivers and harbors and mines and land--everything, in a word, that came under the control of the Roman government. In all of these things, the people were engaged, either as contractors or as pledging their property as security for the contractors, or in selling supplies or making loans to the contractors, or as engaging in the work and in the employ of the contractors. Over all of these transactions, says Polybius, the Senate ``has complete control.'' For example, it could extend the time on a contract and thus assist the contractors; or, in the case of unforeseen accident, it could relieve the contractors of a portion of their obligation, or it could even release them altogether if they were absolutely unable to fulfill the contract. Thus, there were many ways in which the Senate could inflict great hardships upon the contractors, or, on the other hand, grant great indulgences to the contractors. But in every case, the appeal was to the Senate. Moreover, the judges were selected from the Senate, at the time of Polybius, for the majority of trials in which the charges were heavy. Consequently, the people were cautious about resisting or actively opposing the will of the Senate, because they were uncertain as to when they might need the Senate's aid. For a similar reason, the people did not rashly resist the will of the consuls because one and all might, in one way or another, become subject to the absolute power of the consuls at some point in time. Polybius had spoken of a regular cycle of constitutional revolution, and the natural order in which constitutions change, are transformed, and then return again to their original stage. Plato on the same line, had arranged six classifications in pairs: kingship would degenerate into tyranny; aristocracy would degenerate into oligarchy; and democracy would degenerate into violence and mob rule--after which, the cycle would begin all over again. Aristotle had had a similar classification. According to Polybius, Lycurgus--the Spartan lawgiver of, circa, the 9th century B.C.--was fully aware of these changes, and accordingly combined together all of the excellences and distinctive features of the best constitutions, in order that no part should become unduly predominant and be perverted into its kindred vice; and that, each power being checked by the others, no one part should turn the scale or decisively overbalance the others; but that, by being accurately adjusted and in exact equilibrium, ``the whole might remain long steady like a ship sailing close to the wind.'' Polybius summed it up in this way: When any one of the three classes becomes puffed up, and manifests an inclination to be contentious and unduly encroaching, the mutual interdependency of all the three, and the possibility of the pretensions of any one being checked and thwarted by the others, must plainly check this tendency. And so the proper equilibrium is maintained by the impulsiveness of the one part being checked by its fear of the other. Polybius' account may not have been an exact representation of the true state of the Roman system, but he was on the scene, and he was writing to tell us what he saw with his own eyes, not through the eyes of someone else. What better witness could we have? Mr. President, before the Convention was assembled, Madison studied the histories of all these ancient people--the different kinds of governments--aristocracy, oligarchy, monarchy, democracy, and republic. He prepared himself for this Convention. And there were others in that Convention who were very well prepared also--James Wilson, Dr. William Samuel Johnson, and others. The theory of a mixed constitution had had its great measure of success in the Roman Republic. It is not surprising then, that the Founding Fathers of the United States should have been familiar with the works of Polybius, or that Montesquieu should have been influenced by the checks and balances and separation of powers in the Roman constitutional system, a clear and central element of which was the control over the purse, vested solely in the Senate in the heyday of the Republic. Were the Framers influenced by the classics? Every schoolchild and student in the universities learned how to read and write Greek and Latin. Those were required subjects. The founders were steeped in the classics, and both the Federalists and the Anti-federalists resorted to ancient history and classical writings in their disquisitions. Not only were classical models invoked; the founders also had their classical ``antimodels''--those individuals and government forms of antiquity whose vices and faults they desired to avoid. Classical philosophers and the theory of natural law were much discussed during the period prior to and immediately following the American Revolution. It was a time of great political ferment, and thousands of circulars, [[Page S2916]] pamphlets, and newspaper columns displayed the erudition of Americans who delighted in classical allusions. Our forbears were erudite. They circulated their pamphlets and their newspaper columns. They talked about these things. Who today studies the classics? Who today studies the different models and forms of government? Who today writes about them? The 18th-century educational system provided a rich classical conditioning for the founders and immersed them with an indispensable training. They were familiar with Ovid, Homer, Horace, and Virgil, and they had experienced solid encounters with Tacitus, Thucydides, Livius, Plutarch, Suetonius, Eutropius, Xenophon, Florus, and Cornelius Nepos, as well as Caesar's Gallic Wars. They were undoubtedly influenced by a thorough knowledge of the vices of Roman emperors, the logic of orations by Cicero and Demosthenes, and the wisdom and virtue of the scriptures. They freely used classical symbols, pseudonyms, and allusions to communicate through pamphlets and the press. To persuade their readers they frequently wrapped themselves and their policies in such venerable classical pseudonyms as ``Aristides,'' ``Tully'', ``Cicero'', ``Horatius'', and ``Camillus.'' The Federalist essays, 85 of them in number were signed by ``Publius.'' Some of the Anti-federalists dubbed themselves ``Cato,'' while others called themselves ``Cincinnatus'' or ``A Plebeian.'' The appropriation of classical pseudonyms was sometimes used in private discourse for secret correspondence. George Washington's favorite play was Joseph Addison's ``Cato'' in which Cato committed suicide rather than submit to Caesar's occupation of Utica. In the words of Carl J. Richard, in his book ``The Founders and the Classics'' It is my contention that the classics exerted a formative influence upon the founders, both directly and through the mediation of Whig and American perspectives. The classics supplied mixed government theory, the principal basis for the U.S. Constitution. The classics contributed a great deal to the founders' conception of human nature, their understanding of the nature and purpose of virtue, and their appreciation of society's essential role in its production. The classics offered the founders companionship and solace, emotional resources necessary for coping with the deaths and disasters so common in their era. The classics provided the founders with a sense of identity and purpose, assuring them that their exertions were part of a grand universal scheme. The struggles of the Revolutionary and Constitutional periods gave the founders a sense of kinship with the ancients, a thrill of excitement at the opportunity to match their classical heroes' struggles against tyranny and their sage construction of durable republics. In short, the classics supplied a large portion of the founders' intellectual tools. Now, what about the Declaration of Independence? It was on June 7, 1776, that Richard Henry Lee introduced the ``Resolve'' clause, which was as follows: Resolved, that these United States Colonies are and of right ought to be free and independent states, that they are absolved from all allegiance to the British Crown, and that all political connection between them and the state of Great Britain is, and ought to be, totally dissolved. That it is expedient forthwith to take the most effectual measures for forming foreign alliances. That a plan of confederation be prepared and transmitted to the respective colonies for their consideration and approbation. Following the introduction of Lee's resolution, postponement of the question of independence was delayed until July 1. Nevertheless, on June 11, Congress appointed a committee made up of Jefferson, John Adams, Franklin, Roger Sherman, R.R. Livingston, to prepare a declaration. The committee reported on June 28, and, at last, on July 2, Congress decided for independence without a dissenting vote. The delegates considered the text of the declaration for two additional days, and adopted changes on July 4 and ordered the document printed. News that New York had approved on July 9 (the New York Delegates, having been prevented by instructions from assenting, had theretofore refrained from balloting) reached Philadelphia on July 15. Four days later, Congress ordered the statement engrossed. On August 2, signatures were affixed, although all ``signers'' were not then present. Inasmuch as the Declaration was an act of treason--for which any one of those signers or all collectively could have been hanged-- the names subscribed were initially kept secret by Congress. The text itself was widely publicized. Those forebearers of ours who had the courage and the fortitude and the backbone to write the Declaration of Independence, committed an act of treason for which their properties could have been confiscated, their rights could have been forfeited, and their lives could have been taken from them. That is what we are talking about in this Constitution. Men who not only understood life in their times, but also understood the cost of liberty, so they pledged their lives, their fortunes, their sacred honor. Those were not empty words. Would we have done so? Much of the Declaration of Independence was derived directly from the early state constitutions. The things have roots. They didn't come up like the prophet's gourd overnight. The Declaration contained twenty- eight charges against the English king justifying the break with Britain. At least 24 of the charges had also appeared in state constitutions. New Hampshire, South Carolina, and Virginia, in that order, adopted the first constitutions of independent states, and these three state constitutions contained 24 of the 28 charges set forth in the Declaration. Lists of grievances against George III had appeared in many of the newspapers, and as far back as May 31, 1775, the Mecklenburg (North Carolina) Resolves contained the following: Resolved: that we do hereby declare ourselves a free and independent people; are and of right ought to be a sovereign and self-governing association, under the control of no power, other than that of our God and the general government of the Congress: to the maintenance of which independence we solemnly pledge to each other our mutual cooperation, our lives, our fortunes, and our most sacred honor. Note that the last sentence of the Declaration of Independence says, ``And for the support of this Declaration, with a firm Reliance on the Protection of divine Providence, [we are not supposed to teach those things in our schools today] we mutually pledge to each other our Lives, our Fortunes, and our sacred Honor.'' Therefore, many of the phrases that were used by Jefferson had already appeared in various forms in the public print. Jefferson also borrowed from the phraseology of Virginia's Declaration of Rights written by George Mason, and adopted by the Virginia Constitutional Convention in June 1776. In the opening Section of that document, the following words appear: That all men are by nature equally free and independent and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety. Mason also stated in the Virginia Declaration of Rights, ``That all power is vested in, and consequently derived from the people,'' and that, ``when any government shall be found inadequate or contrary to these purposes, a majority of the community has and indubitable, inalienable, and indefeasible right to reform, alter, or abolish it in such manner as shall be judged most conducive to the public weal.'' Jefferson in the Declaration of Independence, stated that ``All men are created equal'' and that they were ``endowed by their creator with certain unalienable rights, that among these are life, liberty, and the pursuit of happiness--that to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed, that whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it, and to institute new government, laying its foundation on such principles, and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness.'' The last paragraph of the Declaration of Independence states that the representatives of the United States of America, in general Congress, assembled, ``Appealing to the supreme judge of the world for the rectitude of our intention, do, in the name, and by authority of the good people of these colonies, solemnly publish and declare, that these United Colonies are, and of right ought to be, free and independent [[Page S2917]] states; . . .'' Lutz, whose name I mentioned a few times already, makes the following comment: Any document calling on God as a witness would technically be a covenant. American constitutionalism had its roots in the covenant form that was secularized into the compact. One could argue that with God as a witness, the Declaration of Independence is in fact a covenant. The wording is peculiar, however, and the form of an oath is present, but the words stop short of what is normally expected. But the juxtaposition of a near oath and the words about popular sovereignty is an intricate dance around the covenant- compact form. The Declaration of Independence may be a covenant; it is definitely part of a compact. As to the words, ``All men are created equal,'' American political literature was full of statements that the American people considered themselves and the British people equal. Lutz states, with reference to this paragraph: `` `Nature's God' activates the religious grounding; `laws of nature' activate a natural rights theory such as Locke's. The Declaration thus simultaneously appeals to reason and to revelation as the basis for the American right to separate from Britain, create a new and independent people, and be considered equal to any other nation on earth.'' Now, as to the State Constitutions--I am talking about the roots, the roots of this Constitution. This Federal Constitution which we are talking about amending--what about the State Constitutions? Does the Federal Constitution have any roots in the State Constitutions? Throughout the spring of 1776 some of the colonies remained relatively immune to the contagion which prompted others to move toward independence. This prevented the Continental Congress from breaking with Britain. To spread the virus, John Adams and Richard Henry Lee induced the Committee of the Whole to report a resolution which Congress unanimously adopted on May 10. The resolving clause of that resolution recommended to the respective assemblies and conventions of the United Colonies, that, ``where no government sufficient to the exigencies of their affairs had been hitherto established, to adopt such government as shall, in the opinion of the representatives of the people, best conduce to the happiness and safety of their constituents in particular, and America in general.'' State constitutions were of great significance in the development of our Federal Constitution and our Federal system of government. When the Framers met in Philadelphia, they were familiar with the written constitutions of 13 states, and, as a matter of fact, many of those Framers had served in the State legislatures and conventions that debated and approved the State constitutions. Not only were they, the Framers, conversant with the organic laws of the 13 states, but they were also knowledgeable of the colonial experience under colonial government. As was ably stated by William C. Morey, in the September 1893 edition of ``Annals of the American Academy'' of Political and Social Science: The state constitutions were linked in the chain of colonial organic laws and they also formed the basis of the federal constitution. The change had its beginning in the early charters of the English trading companies, which were transformed into the organic laws of the colonies, which, in their turn, were translated into the constitutions of the original states, which contributed to the constitution of the federal union. The Pennsylvania Constitution of 1701 appears to have been the last written form of government that appeared in colonial times. There had been two previous Pennsylvania Constitutions--1683 and 1696--and these, together with the Massachusetts Charter of 1691, constitute the most advanced colonial forms and provide the nearest approach in the colonial period towards the final goal of the national constitution. The original 13 colonies became 13 States during the decade preceding the 1787 Convention, and all but Connecticut and Rhode Island wrote new constitutions in forming their state governments. These new state constitutions would provide important innovations in American constitutionalism, and the Framers at Philadelphia would benefit hugely, not only from the substantive material and form contained in the Constitutions but also from the experience gained under the Administration of the new governments. Let us examine some of these new constitutions, noting particularly those features in the State constitutions which would later appear, even if varying degree, in the Federal Constitution. Thus we shall see the guidance which these early State constitutions provided to the men at Philadelphia in 1787. Let us first examine article I of the Constitution and observe the amazing conformity therein with the equivalent provisions of the various State constitutions written a decade earlier in 1776 and 1777. Take section 1, for example, in which the U.S. Constitution vests all legislative powers in a Congress, consisting of a Senate and House. At least nine of the State constitutions have similar provisions--so you see, our constitutional Framers just did not pick this out of thin air--perhaps varying somewhat in form, which vest the lawmaking powers in a legislature consisting of two separate bodies, the lower of which is generally referred to as an assembly or House of Representatives or House of Delegates--as in the case of West Virginia, which was not in existence at that time, of course--or, as in the case of North Carolina, a House of Commons. The upper body is generally referred to as a Senate, but it varies, likewise, being sometimes referred to as a Council. Section 2 provides that the U.S. House of Representatives shall choose their speaker and other officers and shall have the sole power of impeachment, and at least a half-dozen states provided that the legislative bodies should choose their speaker and other officers. Section 3 provides for a rotation of Senators, two from each state, so that two-thirds of the Senate is always in being. Many of the state senators were to represent districts consisting of several counties or parishes or other political units, and several of the States, including Delaware and New York, provided for a rotation of the members of the upper body so that a supermajority of the Senate were always holdovers. The Great Compromise--which was worked out at the 1787 Convention and agreed to on July 16, 1787, providing that the Senate would represent the States, while the House of Representatives' representation would be based on popula

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PROPOSING AN AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES TO PROTECT THE RIGHTS OF CRIME VICTIMS--Motion to Proceed--Continued
(Senate - April 26, 2000)

Text of this article available as: TXT PDF [Pages S2910-S2930] PROPOSING AN AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES TO PROTECT THE RIGHTS OF CRIME VICTIMS--Motion to Proceed--Continued The PRESIDING OFFICER. The Senator from Connecticut. Mr. DODD. Mr. President, I ask unanimous consent to yield my time to the distinguished senior Senator from West Virginia. The PRESIDING OFFICER. Without objection, it is so ordered. The Senator from West Virginia. Mr. BYRD. Mr. President, I have listened to the comments by my colleagues, those who are proponents of the proposed constitutional amendment before the Senate, and I have listened to the comments of many of my colleagues who have spoken in opposition to the proposed amendment. I compliment both sides on the debate. I think it is an enlightening debate. I will have more to say if the motion to proceed is agreed to. In view of the statements that have been made by several of those who are opposed to the amendment--the Senator from New York (Mr. Schumer), the Senator from Illinois (Mr. Durbin), and the Senator from Connecticut (Mr. Dodd), and others, they have cogently and succinctly expressed my sentiments in opposition to the amendment. I congratulate the Senator from Vermont, Mr. Leahy, on his statements in opposition thereto, as well as the leadership he has demonstrated not only on this proposed constitutional amendment but also in reference to other constitutional amendments before the Senate in recent days and in years past. He is a dedicated Senator in every respect. He certainly is dedicated to this Federal Constitution and very ably defends the Constitution. I do not say that our Constitution is static. John Marshall said it was a Constitution that was meant for the ages. I will go into that more deeply later. At a later date, I will address this particular amendment. But having been a Member of the Congress now going on 48 years, I may not be an expert on the Constitution, but I have become an expert observer of what is happening in this Congress and its predecessor Congresses, and an observer of what is happening by way of the Constitution. I consider myself to be as much an expert in that regard as anybody living because I have been around longer than most people. I have now been a Member of Congress, including both Houses, longer than any other Member of the 535 Members of Congress today. I must say that I am very concerned about the cavalierness which I have observed with respect to the offering of constitutional amendments. There seems to be a cavalier spirit abroad which seems to say that if it is good politically, if it sounds good politically, if it looks good politically, if it will get votes, let's introduce an amendment to the Constitution. I am not saying that with respect to proponents of this amendment, but, in my own judgment, I have seen a lot of that going on. I don't think there is, generally speaking, a clear understanding and appreciation of American constitutionalism. I don't think there is an understanding of where the roots of this Constitution go. I don't think there is an appreciation for the fact that the roots of this Constitution go 1,000 years or more back into antiquity. I do not address this proposed constitutional amendment as something that is necessary, nor do I address this, the Constitution today, as something that just goes back to the year 1787, 212 years ago. The Constitution was written by men who had ample experience, who benefited by their experience as former Governors, as former members of their State legislatures, as former members of the colonial legislatures which preceded the State legislatures, as former Members of the Continental Congress which began in 1794, as Members of the Congress under the Articles of Confederation which became effective in 1781. Some of the members of the convention came from England, from Scotland, from Ireland. Alexander Hamilton was born in the West Indies. These men were very well acquainted with the experiences of the colonialists. They were very much aware of the weaknesses, the flaws in the Articles of Confederation. They understood the State constitutions. Most of the 13 State constitutions were written in the years 1776 and 1777. Many of the men who sat in the Constitutional Convention of 1787 had helped to create those State constitutions of 1776 and 1777 and subsequent thereto. Many of them had experience on the bench. They had experiences in dealing with Great Britain during and prior to the American Revolution. Some of them had fought in Gen. George Washington's polyglot, motley army. These men came with great experience. Franklin was 81 years [[Page S2911]] old. Hamilton was 30. The tall man with the peg leg, Gouverneur Morris, was 35. Madison was 36. They were young in years, but they had tremendous experience back of those years. So the Constitution carries with it the lessons of the experiences of the men who wrote it. They were steeped in the classics. They were steeped in ancient history. They knew about Polybius. They knew how he wrote about mixed government. They knew what Herodotus had to say about mixed government. They knew what other great Greek and Roman authors of history had learned by experience, centuries before the 18th century. They knew about the oppression of tyrannical English monarchs. They knew the importance of the English Constitution, of the Magna Carta, of the English Bill of Rights in 1689. They knew about the English Petition of Right in 1628. All of these were parts of the English Constitution, an unwritten Constitution except for those documents, some of which I have named--the Petition of Right, the Magna Carta, the decisions of English courts, and English statutes. So to stand here and say, in essence, that the Constitution reflects the viewpoints of the men who wrote that Constitution in 1787, or only reflects the views of our American predecessors of 1789, or those who ratified the Constitution in 1790 or in 1791, is only a partial truth. The roots of this Constitution--a copy of which I hold in my hand--go back 1,000 years, long before 1787, long before 1791 when the first 10 amendments which constitute the American Bill of Rights were ratified. That was only a milestone along the way--1787, 1791. These were mere milestones along the way to the real truths, the real values that are in this Constitution, a copy of which I hold in my hand. Those are only milestones along the way, far beyond 1787, far beyond 1776 or 1775 or 1774. Why was that revolution fought? Why did our forbears take stand there on the field of Lexington, on April 19, and shed their blood? Why was that revolution fought? It was fought on behalf of liberty. That is what this Constitution is all about--liberty, the rights of a free people, the liberties of a free people. Liberty, freedom from oppression, freedom from oppressive government, that is why they shed their blood at Lexington and at Bunker Hill and at Kings Mountain and at Valley Forge, down through the decades and the centuries. The blood of Englishmen was spilled centuries earlier in the interests of liberty, in the interests of freedom: Freedom of the press, freedom to speak, freedom to stand on their feet in Parliament and speak out against the King, freedom from the oppression of the heavy hand of government. That is what that Constitution is about. There are those who think that the Constitution sprang from the great minds of those 39 men who signed the Constitution at the Convention, of the 55 who attended the meetings of the Convention--some believe that it sprang from their minds right on the spot. Some believe that it came, like manna from Heaven, fell into their arms. It sprang like Minerva from the brain of Jove. That is what they think. No, I say a miracle happened at Philadelphia, but that was not the miracle. The miracle that occurred at Philadelphia was the miracle that these minds of illustrious men gathered at a given point in time, at Philadelphia, and over a period of 116 days wrote this Constitution. It could not have happened 5 years earlier because they were not ready for it. Their experiences of living under the Articles of Confederation had not yet ripened to a point where they were ready to accept the fact that there had to be a new government, a new constitution written. And it could not have happened 5 years later because the violence that they saw in France, as the guillotine claimed life after life after life, had not yet happened. Some 5 years later, they would have seen that violence of the French Revolution, and they would have recoiled in horror from it. The writing of this Constitution happened at the right time, at the right place, and it was written by the right men. That was the miracle of Philadelphia. Here we are today talking about amending it, this great document, the greatest document of its kind that was ever written in the history of the world. There is nothing to compare it with, by way of man-made documents. Who would attempt to amend the Ten Commandments that were handed down to Moses? Not I. Yet, we, little pygmies on this great stage, before the world, would attempt to pit our talents and our wisdom against the talents and wisdom, the experience and the viewpoints of men such as George Washington, James Madison, Alexander Hamilton, Gouverneur Morris, Benjamin Franklin, John Dickenson, James Wilson, Roger Sherman? In article V of this Constitution, they had the foresight to write the standard. If we want to find the standard for this Constitutional amendment, or any other Constitutional amendment here is the standard in the Constitution itself. The Congress, whenever two-thirds of both Houses shall deem it necessary-- The Congress, whenever two thirds of both Houses shall deem it necessary-- shall propose Amendments. . . . I don't say that the Constitution is static. I don't say it never should be amended. I would vote for a constitutional amendment if I deemed it ``necessary.'' Certainly, I do not see this proposed amendment as necessary, but I will have more to say about that later. I don't say that the Constitution is perfect. I do say that there is no other comparable document in the world that has ever been created by man. And when that Constitution uses the word ``necessary,'' it means ``necessary,'' because no word in that Constitution was just put into that document as a place filler. I do think this is a time that I might speak a little about the constitutionalism behind the American Constitution. I think it might be well for anyone who might be patient enough or interested enough, to hear what I am going to say, because I don't think enough people understand the Constitution. I am sure they don't understand the roots of the Constitution. They don't understand American constitutionalism. It is a unique constitutionalism, the American constitutionalism. I don't think most people understand it. In response to a recent nationwide poll, 91 percent of the respondents agreed with this statement: ``The U.S. Constitution is important to me.'' Mr. President, 91 percent of the respondents agreed to that: ``The U.S. Constitution is important to me.'' Yet only 19 percent of the people polled knew that the Constitution was written in 1787; only 66 percent recognized the first 10 amendments to the Constitution as the Bill of Rights--only 66 percent. Only 58 percent answered correctly that there were three branches of the Federal Government; 17 percent were able to recall that freedom of assembly is guaranteed by the first amendment to the Constitution--17 percent, 17 percent. Yet you see them out here all the time, on the Capitol steps, assembling, petitioning the Government for a redress of what they conceive to be grievances. They know they have that right, but only 17 percent were able to recall that freedom of assembly is guaranteed by the first amendment to the Constitution. Only 7 percent remembered that the Constitution was written at the Constitutional Convention; 85 percent believed that the Constitution stated that ``All men are created equal''--or failed to answer the question; and only 58 percent agreed that the following statement is false: ``The Constitution states that the first language of the U.S. is English.'' The American people love the Constitution. They believe the Constitution is good for them collectively and individually, but they do not understand much about it. And the same can be said with respect to constitutionalism. The same can be said with respect to the Members of Congress; that means both Houses. Not a huge number, I would wager, of the Members of the Congress of both Houses know a great deal about the Constitution. How many of them have ever read it twice? Each of us takes an oath to support and defend the Constitution of the United States every time we are elected or reelected. We stand right up at that desk with our hand on the Bible--at least that is the image people have of us--and we swear in the presence of men and Almighty God to support and defend that Constitution. How many of us have read it twice? How many of us [[Page S2912]] really know what is in that Constitution? And yet we will suggest amendments to it. With 91 percent of the people polled agreeing that the U.S. Constitution is important to themselves, it is a sad commentary that this national poll would reveal that so many of these same Americans are so hugely ignorant of their Constitution and of the American history that is relevant thereto. Let us think together for a little while about this marvelous Constitution, its roots and origins and, in essence, the genesis of American constitutionalism--a subject about which volumes have been written and will continue to be written. It is with temerity that I would venture to expound upon such a grand subject, but I do so with a full awareness of my own limited knowledge and capabilities in this respect, which I freely admit, and for which I just as freely apologize. Nonetheless, let us have at it because the clock is running and time stops for no one, not even a modern day Joshua. Was Gladstone correct in his reputed declaration that the Constitution was ``the most wonderful work ever struck off at a given time by the brain and purpose of man''? Well, hardly. In 1787, the only written constitutions in the world existed in English-speaking America, where there were 13 State constitutions and a constitution for the Confederation of the States, which was agreed upon and ratified in 1781. That was our first National Constitution. Americans were the heirs of a constitutional tradition that was mature by the time of the Convention that met in Philadelphia. Americans had tested that tradition between 1776 and 1787 by writing eleven of the State constitutions and the Articles of Confederation. Later, with the writing of the United States Constitution, they brought to completion the tradition of constitutional design that had begun a century and a- half or two centuries earlier. So when someone stands here and says that this Constitution just represents what those people of 1789 or 1787 or 1791 believed, what they thought, then I say we had better stop, look, and listen. The work of the Framers brought to completion the tradition of constitutional design that had begun a century and a half or two centuries earlier right here in America. Let us move back in point of time and attempt to trace the roots of what is in this great organic document, the Constitution of the United States. Looking back, the search--we are going backward in time now-- takes us first to the Articles of Confederation. A lot of people in this country do not know that the Articles of Confederation ever existed. They have forgotten about them. They never hear about them anymore. And then to the earliest State constitutions, and back of these--going back, back in point of time--were the colonial foundation documents that are essentially constitutional, such as the Pilgrim Code of Law, and then to the proto-constitutions, such as the Fundamental Orders of Connecticut and the Mayflower Compact. As one scholar, Donald S. Lutz, has noted: The political covenants written by English colonists in America lead us to the church covenants written by radical Protestants in the late 1500's and early 1600's, and these in turn lead us back to the Covenant tradition of the Old Testament. It is appropriate, for our purposes here to focus for a short time on those Old Testament covenant traditions because they were familiar not only to the early settlers from Europe--your forebears and mine--but also to the learned men who framed the United States Constitution. In the book of Genesis we are told that the Lord appeared to Abram saying: ``Get thee out of thy country, and from thy kindred, and from thy father's house, unto a land that I will show thee: and I will make of thee a great nation, and I will bless thee, and make thy name great;'' (Genesis 12:1,2) In Chapter 17 of Genesis, verses 4-7, God told Abram: ``As for me, behold, my covenant is with thee, and thou shalt be a father of many nations. Neither shall thy name any more be called Abram, but thy name shall be Abraham; for a father of many nations have I made thee. . . . And I will make nations of thee, and kings shall come out of thee. And I will establish my covenant between me and thee and thy seed after thee in their generations for an everlasting covenant, to be a God unto thee, and to thy seed after thee.'' Again, speaking to Abraham, God said: ``This is my covenant, which ye shall keep, between me and you and thy seed after thee; Every man child among you shall be circumcised.'' (Genesis 17:10) The Abrahamic covenant was confirmed upon subsequent occasions, one of which occurred after Abraham had prepared to offer Isaac, his son, as a burnt offering in obedience to God's command, at which time an angel of the Lord called out from heaven and commanded Abraham, ``Lay not thine hand upon the lad, . . . for now I know that thou fearest God.'' (Genesis 22:12) The Lord then spoke to Abraham saying, ``I will bless thee, and in multiplying, I will multiply thy seed as the stars of the heaven, and as the sand which is upon the sea shore . . . because thou hast obeyed my voice.'' (Genesis 22:17,18) God's covenant with Abraham was later confirmed in an appearance before Isaac, saying: ``Go not down into Egypt; dwell in the land which I shall tell thee of.'' Sojourn (see Gen. 26:3-5) God subsequently confirmed and renewed this covenant with Jacob, as he slept with his head upon stones for his pillows and dreamed of a ladder set upon the earth, and the top of it reached to heaven, with angels of God ascending and descending on it. God spoke, saying: ``I am the Lord God of Abraham, . . . and the God of Isaac: the land whereon thou liest, to thee will I give it, and to thy seed; and thy seed shall be as the dust of the earth . . . and in thee and in thy seed shall all the families of the earth be blessed.'' (Genesis 28:11-14) At Bethel, in the land of Canaan, Jacob built an altar to God, and God appeared unto Jacob, saying: ``Thy name is Jacob; thy name shall not be called any more Jacob, but Israel shall be thy name.'' And God said unto him, ``I am God almighty: be fruitful and multiply; a nation and a company of nations shall be of thee, and kings shall come out of thy loins; and the land which I gave Abraham and Isaac, to thee I will give it, and to thy seed after thee will I give the land.'' (Genesis 35:10,11) The book of Exodus takes up where Genesis leaves off, and we find that the descendants of Jacob had become a nation of slaves in Egypt. After a sojourn that lasted 430 years, God then brought the Israelites out of Egypt that he might bring them as his own prepared people into the Promised Land. Exodus deals with the birth of a nation, and all subsequent Hebrew history looks back to Exodus as the compilation of the acts of God that constituted the Hebrews a nation. Thus far, we have seen the successive covenants entered into between God and Abraham and between God and Isaac and between God and Jacob; we have seen the creation of a nation through what might be described as a federation--there is the first system of federalism--a federation of the 12 tribes of Israel, the 12 sons of Jacob having been recognized as the patriarchs of their respective tribes. Joshua succeeded Moses as leader of the Israelites. Then came the prophets and the judges of Israel, and the turmoils of the divided kingdoms of Judah and Israel. Samuel anointed the first king--Saul, and the kingship of David followed. Thus we see the establishment of a monarchy. God covenanted with David, speaking to him through Nathan the prophet, and God promised to raise up David's seed after his death, according to which a son would be born of David, whose name would be Solomon. Furthermore, Solomon would build a house for the Lord and would receive wisdom and understanding. The Ark of the Covenant of the Lord, and the holy vessels of God, would be brought into the sanctuary that was to be built to the name of the Lord. Now I have spoken of the creation of the Hebrew nation, and not without good reason. The American constitutional tradition derives much of its form and much of its content from the Judeo-Christian tradition as interpreted by the radical Protestant sects to which belonged so many of the original European settlers in British North America. Donald S. Lutz, in his work entitled ``The Origins of American Constitutionalism'', says: ``The tribes of Israel [[Page S2913]] shared a covenant that made them a nation. American federalism originated at least in part in the dissenting Protestants' familiarity with the Bible''. The early Calvinist settlers who came to this country from the Old World brought with them a familiarity with the Old Testament covenants that made them especially apt in the formation of colonial documents and state constitutions. Winton U. Solberg tells us that in 17th-century colonial thought, divine law, a fusion of the law of nature in the Old and New Testaments, usually stood as fundamental law. The Mayflower Compact--we have all heard of that--the Mayflower Compact exemplified the Doctrine of Covenant or Contract. Puritanism exalted the biblical component and drew on certain scriptural passages for a theological outlook. Called the Covenant or Federal Theology, this was a theory of contract regarding man's relations with God and the nature of church and state. Man was deemed an impotent sinner until he received God's grace, and then he became the material out of which sacred and civil communities were built. Another factor that contributed to the knowledge of the colonists and to their experience in the formation of local governments, was the typical charter from the English Crown. These charters generally required that the colonists pledge their loyalty to the Crown, but left up to them, the colonists, the formation of local governments as long as the laws which the colonists established comported with, and were not repugnant to, the laws of England. Boards of Directors in England nominally controlled the colonies. The fact that the colonies were operating thousands of miles away from the British Isles, together with the fact that the British Government was so involved in a bloody civil war, made it possible for the American colonies to operate and evolve with much greater freedom and latitude than would otherwise have been the case. The experiences gained by the colonists in writing documents that formed the basis for local governments, and the benefits that flowed from experience in the administration of those colonial governments, contributed greatly to the reservoir of understanding of politics and constitutional principles developed by the Framers. Although the Constitution makes no specific mention of federalism, the federal system of 1787 was not something new to the Framers. Compacts had long been used as a device to knit settlements together. For example, the Fundamental Orders of Connecticut, 1639, established a Common government for the towns of Hartford, Windsor, and Wethersfield, while each town government remained intact. In 1642, the towns of Providence, Pocasset, Portsmouth, and Warwick in Rhode Island devised a compact known as the Organization of the Government of Rhode Island, a federation which became a united colony under the 1663 Rhode Island Charter. The New England Confederation of 1643 was a compact for uniting the colonies of Massachusetts, Connecticut, Plymouth, and New Haven, each of which was comprised of several towns that maintained their respective governments intact. Thus, the Framers were guided by a long experience with federalism or confederalism, including the Articles of Confederation--an experience that was helpful in devising the new national federal system. Lutz says that the states, in writing new constitutions in the 1770s, ``drew heavily upon their respective colonial experience and institutions. In American constitutionalism, there was more continuity and from an earlier date than is generally credited.'' That is why I am here today speaking on this subject. Let it be heard. Let it be known that the roots of this Constitution go farther back than 1787, farther back than its ratification in 1791--farther back. They were writing based on historical experiences that went back 1,000 years, before the Magna Carta, back to the Anglo-Saxons, back another 2,000 years, back another 1,500 years, back to the federalism of the Jewish tribes of Israel and Judah. Wake up. This Constitution wasn't just born yesterday or in 1787. Let us go back to history. Let us study the history of American constitutionalism, its roots, how men suffered under oppressive governments. Then we will have a little better understanding of this Constitution. No, the Constitution is not static. History is not static. The journey of mankind over the centuries is not static. We can always learn from history. To what extent were the Framers influenced by political theorists and republican spokesmen from Britain and the Continent? According to Solberg, republican spokesmen in England constituted an important link on the road to the realization of a republic in the United States. I hear Senators stand on this floor and say that we live in a democracy. This is not a democracy. This is a republic. You don't have to believe Robert C. Byrd. Go to Madison, go to ``The Federalist Papers,'' Federalist Paper No. 10 or Federalist Paper No. 14--those of you who are listening--and you will find the definition of a democracy and the definition of a republic. You will find the difference between the two. John Milton, whose literary accomplishments and Puritanism assured him of notice in the colonies, was significant for the views expressed in his political writings. He supported the sovereign power of the people, argued for freedom of publications, and justified the death penalty for tyrants. English political thinkers who influenced American constitutionalism and who exerted an important influence in the colonies were Bolingbroke, Addison, Pope, Hobbes, Blackstone, and Sir Edward Coke. And there were others. John Locke may be said to have symbolized the dominant political tradition in America down to and in the convention of 1787. Locke equated property with ``life, liberty, and estate'' and was the crucial right on which man's development depends. Nature, Locke thought, creates rights. Society and government are only auxiliaries which arise when men consent to create them in order to preserve property in the larger sense, and a community calls government into being to secure additional protection for existing rights. As representatives of the people, the legislature is supreme but is itself controlled by the fundamental law. Locke limits government by separating the legislative and administrative functions of government to the end that power may not be monopolized. That is assured by our Constitution also. The people possess the ultimate right of resisting a government which abuses its delegated powers. Such a violation of the contract justified the community in resuming authority. David Hume dealt with the problem of faction in a large republic, and promoted the device of fragmenting election districts. Madison, when faced with the same problem in preparing for the federal convention, supported the idea of an extended republic--drawing upon Hume's solution. Blackstone's view was that Parliament was supreme in the British system and that the locus of sovereignty was in the lawmaking body. His absolute doctrine was summed up in the aphorism that ``Parliament can do anything except make a man a woman or a woman a man.'' His ``Commentaries on the Laws of England'' was the most complete survey of the English legal system ever composed by a single hand. The commentaries occupied a crucial role in legal education, and many of Blackstone's ideas were uppermost on American soil from 1776 to 1787, with vital significance for constitutional development both in the states and in Philadelphia. Although delegates to the convention acknowledged Blackstone as the preeminent authority on English law, they, nevertheless, succeeded in separating themselves from some of his other views. James Harrington's ``Oceana'' presented a republican constitution for England in the guise of a utopia. He concluded that since power does follow property, especially landed property, the stability of society depends on political representation reflecting the actual ownership of property. The distinguishing feature of Harrington's commonwealth was ``an empire of laws and not of men.'' Harrington proposed an elective ballot, rotation in office, indirect election, and a two-chamber legislature. This goes back a long way, doesn't it? [[Page S2914]] Harrington proposed legislative bicameralism as a precaution against the dangers of extreme democracy, even in a commonwealth in which property ownership was widespread. He argued that a small and conservative Senate should be able to initiate and discuss but not decide measures, whereas a large and popular house should resolve for or against these without discussion. These were novel but significant ideas that became influential in America, in this country, before 1787. John Adams was an ardent disciple of Harrington's views. James Harrington was the modern advocate of mixed government most influential in America. That is what ours is. The government of his ``Oceana'' consisted of a Senate which represented the aristocracy; a huge assembly elected by the common people, thus representing a democracy; and an executive, representing the monarchical element, to provide a balancing of power. Harrington's respect for mixed government was shared by Algernon Sidney, who declared: ``There never was a good government in the world that did not consist of the three simple species of monarchy, aristocracy, and democracy.'' The mixed government theorists saw the British king, the House of Lords, and the House of Commons as an example of a successful mixed government. The notion of mixed government goes all the way back to Herodotus, and who knows how far beyond. It was a notion that had been around for several centuries. Herodotus in his writings concerning Persia had expounded on the idea, but it had lost popularity until it was revived by the historian Polybius who lived between the years circa 205-125 B.C. It was a governmental form that pitted the organs of government representing monarchy, aristocracy, and democracy against each other to achieve balance and, thus, stability. The practice of mixed government collapsed along with the Roman Republic, but the doctrine was revived in 17th century England--now we are getting closer--from which it passed to the New World. Those who wrote the Constitution weren't just writing based on the experiences of their time. Let us turn now to a consideration of the renowned French philosopher and writer, Montesquieu. Montesquieu had a considerable impact upon the political thinking of our constitutional Framers. They were conversant with the political theory and philosophy of Montesquieu, who was born 1689--a hundred years before our Republic was formed--and died in 1755. He died just 32 years before our constitutional forebears met in Philadelphia. Americans of the Revolutionary period were well acquainted with the philosophical and political writings of Montesquieu in reference to the separation of powers, and John Adams was particularly strong in supporting the doctrine of separation of powers in a mixed government. Montesquieu advocated the principle of separation of powers. He possessed a belief, which was faulty, that a huge territory did not lend itself to a large republic. He believed that government in a vast expanse of territory would require force and this would lead to tyranny. He believed that the judicial, executive, and legislative powers should be separated. If they were kept separated, the result would be political freedom, but if these various powers were concentrated in one man, as in his native France, then the result would be tyranny. Montesquieu visited the more important and larger political divisions of Europe and spent a considerable time in England. His extensive English connections had a strong influence on the development of his political philosophy. We are acquainted with his ``Spirit of the Laws'' and with his ``Persian Letters,'' but perhaps we are not so familiar with the fact that he also wrote an analysis of the history of the Romans and the Roman state. This essay, titled ``Considerations on the Causes of the Greatness of the Romans and their Decline,'' was produced in 1734. Considering the fact that Montesquieu was so deeply impressed with the ancient Romans and their system of government, and in further consideration of his influence upon the thinking of the Framers and upon the thinking of educated Americans generally during the period of the American Revolution, let us consider the Roman system as it was seen by Polybius, the Greek historian, who lived in Rome from 168 B.C., following the battle of Pydna, until after 150 B.C., at a time when the Roman Republic was at a pinnacle of majesty that excited his admiration and comment. Years later, Adams recalled that the writings of Polybius ``Were in the contemplation of those who framed the American Constitution.'' Polybius provided the most detailed analysis of mixed government theory. He agreed that the best constitution assigned approximately equal amounts of power to the three orders of society and explained that only a mixed government could circumvent the cycle of discord which was the inevitable product of the simple forms. Polybius saw the cycle as beginning when primitive man, suffering from violence, privation, and fear, consented to be ruled by a strong and brave leader. When the son was chosen to succeed this leader, in the expectation that the son's lineage would lead him to emulate his father, the son, having been accustomed to a special status from birth, was lacking in a sense of duty to the public and, after acquiring power, sought to distinguish himself from the rest of the people. Thus, monarchy deteriorated into tyranny. The tyranny then would be overturned by the noblest of aristocrats who were willing to risk their lives. The people naturally chose them to succeed the king as ruler, the result being ``ruled by the best,''--an aristocracy. Soon, however, aristocracy deteriorated into oligarchy because, in time, the aristocrats' children placed their own welfare above the welfare of the people. A democracy was created when the oppressed people rebelled against the oligarchy. But in a democracy, the wealthy corrupted the people with bribes and created faction in order to raise themselves above the common level in the search for status and privilege and additional wealth. Violence then resulted and ochlocracy (mob rule) came into being. As the chaos mounted to epic proportions, the people's sentiment grew in the direction of a dictatorship, and monarchy reappeared. Polybius believed that this cycle would repeat itself over and over again indefinitely until the eyes of the people opened to the wisdom of balancing the power of the three orders. Polybius considered the Roman Republic to be the most outstanding example of mixed government. Polybius viewed the Roman Constitution as having three elements: the executive, the Senate, and the people; with their respective shares of power in the state regulated by a scrupulous regard to equality and equilibrium. Let us examine this separation of powers in the Roman Republic as explained by Polybius. The consuls--representing the executive--were the supreme masters of the administration of the government when remaining in Rome. All of the other magistrates, except the tribunes, were under the consuls and took their orders from the consuls. The consuls brought matters before the Senate that required its deliberation, and they saw to the execution of the Senate's decrees. In matters requiring the authorization of the people, a consul summoned the popular meetings, presented the proposals for their decision, and carried out the decrees of the majority. The majority rules. In matters of war, the consuls imposed such levies upon manpower as the consuls deemed appropriate, and made up the roll for soldiers and selected those who were suitable. Consuls had absolute power to inflict punishment upon all who were under their command, and had all but absolute power in the conduct of military campaigns. As to the Senate, it had complete control over the treasury, and it regulated receipts and disbursements alike. The quaestors (or secretaries of the treasury) could not issue any public money to the various departments of the state without a decree of the Senate. The Senate also controlled the money for the repair and construction of public works and public buildings throughout Italy, and this money could not be obtained by the censors, who oversaw the contracts for public works and public buildings, except by the grant of the Senate. [[Page S2915]] The Senate also had jurisdiction over all crimes in Italy requiring a public investigation, such as treason, conspiracy, poisoning, or willful murder, as well as controversies between and among allied states. Receptions for ambassadors, and matters affecting foreign states, were the business of the Senate. What part of the Constitution was left to the people? The people participated in the ratification of treaties and alliances, and decided questions of war and peace. The people passed and repealed laws-- subject to the Senate's veto--and bestowed public offices on the deserving, which, according to Polybius, ``are the most honorable rewards for virtue.'' Polybius, having described the separation of powers under the Roman Constitution, how did the three parts of state check and balance each other? Polybius explained the checks and balances of the Roman Constitution, as he had observed them first hand. Remember, he was living in Rome at the time. What were the checks upon the consul, the executive? The consul-- whose power over the administration of the government when in the city, and over the military when in the field, appeared absolute--still had need of the support of the Senate and the people. The consul needed supplies for his legions, but without a decree of the Senate, his soldiers could be supplied with neither corn nor clothes nor pay. Moreover, all of his plans would be futile if the Senate shrank from danger, or if the Senate opposed his plans or sought to hamper them. Therefore, whether the consul could bring any undertaking to a successful conclusion depended upon the Senate, which had the absolute power, at the end of the consul's one-year term, to replace him with another consul or to extend his command or his tenure. The consuls were also obliged to court the favor of the people, so here is the check of the people against the consuls, for it was the people who would ratify, or refuse to ratify, the terms of peace. But most of all, the consuls, when laying down their office at the conclusion of their one-year term, would have to give an accounting of their administration, both to the Senate and to the people. It was necessary, therefore, that the consuls maintain the good will of both the Senate and the people. What were the checks against the Senate? The Senate was obliged to take the multitude into account and respect the wishes of the people, for in matters directly affecting the Senators--for instance, in the case of a law diminishing the Senate's traditional authority, or depriving Senators of certain dignities, or even actually reducing the property of Senators--in such cases, the people had the power to pass or reject the laws of the Assembly. In addition, according to Polybius, if the tribunes imposed their veto, the Senate would not only be unable to pass a decree, but could not even hold a meeting. And because the tribunes must always have a regard for the people's wishes, the Senate could not neglect the feelings of the multitude. But as a counter balance, what check was there against the people? We have seen certain checks against the consul; we have described some of the checks against the Senate. What about the people? According to Polybius, the people were far from being independent of the Senate, and were bound to take its wishes into account, both collectively and individually. For example, contracts were given out in all parts of Italy by the censors for the repair and construction of public works and public buildings. Then there was the matter of the collection of revenues from rivers and harbors and mines and land--everything, in a word, that came under the control of the Roman government. In all of these things, the people were engaged, either as contractors or as pledging their property as security for the contractors, or in selling supplies or making loans to the contractors, or as engaging in the work and in the employ of the contractors. Over all of these transactions, says Polybius, the Senate ``has complete control.'' For example, it could extend the time on a contract and thus assist the contractors; or, in the case of unforeseen accident, it could relieve the contractors of a portion of their obligation, or it could even release them altogether if they were absolutely unable to fulfill the contract. Thus, there were many ways in which the Senate could inflict great hardships upon the contractors, or, on the other hand, grant great indulgences to the contractors. But in every case, the appeal was to the Senate. Moreover, the judges were selected from the Senate, at the time of Polybius, for the majority of trials in which the charges were heavy. Consequently, the people were cautious about resisting or actively opposing the will of the Senate, because they were uncertain as to when they might need the Senate's aid. For a similar reason, the people did not rashly resist the will of the consuls because one and all might, in one way or another, become subject to the absolute power of the consuls at some point in time. Polybius had spoken of a regular cycle of constitutional revolution, and the natural order in which constitutions change, are transformed, and then return again to their original stage. Plato on the same line, had arranged six classifications in pairs: kingship would degenerate into tyranny; aristocracy would degenerate into oligarchy; and democracy would degenerate into violence and mob rule--after which, the cycle would begin all over again. Aristotle had had a similar classification. According to Polybius, Lycurgus--the Spartan lawgiver of, circa, the 9th century B.C.--was fully aware of these changes, and accordingly combined together all of the excellences and distinctive features of the best constitutions, in order that no part should become unduly predominant and be perverted into its kindred vice; and that, each power being checked by the others, no one part should turn the scale or decisively overbalance the others; but that, by being accurately adjusted and in exact equilibrium, ``the whole might remain long steady like a ship sailing close to the wind.'' Polybius summed it up in this way: When any one of the three classes becomes puffed up, and manifests an inclination to be contentious and unduly encroaching, the mutual interdependency of all the three, and the possibility of the pretensions of any one being checked and thwarted by the others, must plainly check this tendency. And so the proper equilibrium is maintained by the impulsiveness of the one part being checked by its fear of the other. Polybius' account may not have been an exact representation of the true state of the Roman system, but he was on the scene, and he was writing to tell us what he saw with his own eyes, not through the eyes of someone else. What better witness could we have? Mr. President, before the Convention was assembled, Madison studied the histories of all these ancient people--the different kinds of governments--aristocracy, oligarchy, monarchy, democracy, and republic. He prepared himself for this Convention. And there were others in that Convention who were very well prepared also--James Wilson, Dr. William Samuel Johnson, and others. The theory of a mixed constitution had had its great measure of success in the Roman Republic. It is not surprising then, that the Founding Fathers of the United States should have been familiar with the works of Polybius, or that Montesquieu should have been influenced by the checks and balances and separation of powers in the Roman constitutional system, a clear and central element of which was the control over the purse, vested solely in the Senate in the heyday of the Republic. Were the Framers influenced by the classics? Every schoolchild and student in the universities learned how to read and write Greek and Latin. Those were required subjects. The founders were steeped in the classics, and both the Federalists and the Anti-federalists resorted to ancient history and classical writings in their disquisitions. Not only were classical models invoked; the founders also had their classical ``antimodels''--those individuals and government forms of antiquity whose vices and faults they desired to avoid. Classical philosophers and the theory of natural law were much discussed during the period prior to and immediately following the American Revolution. It was a time of great political ferment, and thousands of circulars, [[Page S2916]] pamphlets, and newspaper columns displayed the erudition of Americans who delighted in classical allusions. Our forbears were erudite. They circulated their pamphlets and their newspaper columns. They talked about these things. Who today studies the classics? Who today studies the different models and forms of government? Who today writes about them? The 18th-century educational system provided a rich classical conditioning for the founders and immersed them with an indispensable training. They were familiar with Ovid, Homer, Horace, and Virgil, and they had experienced solid encounters with Tacitus, Thucydides, Livius, Plutarch, Suetonius, Eutropius, Xenophon, Florus, and Cornelius Nepos, as well as Caesar's Gallic Wars. They were undoubtedly influenced by a thorough knowledge of the vices of Roman emperors, the logic of orations by Cicero and Demosthenes, and the wisdom and virtue of the scriptures. They freely used classical symbols, pseudonyms, and allusions to communicate through pamphlets and the press. To persuade their readers they frequently wrapped themselves and their policies in such venerable classical pseudonyms as ``Aristides,'' ``Tully'', ``Cicero'', ``Horatius'', and ``Camillus.'' The Federalist essays, 85 of them in number were signed by ``Publius.'' Some of the Anti-federalists dubbed themselves ``Cato,'' while others called themselves ``Cincinnatus'' or ``A Plebeian.'' The appropriation of classical pseudonyms was sometimes used in private discourse for secret correspondence. George Washington's favorite play was Joseph Addison's ``Cato'' in which Cato committed suicide rather than submit to Caesar's occupation of Utica. In the words of Carl J. Richard, in his book ``The Founders and the Classics'' It is my contention that the classics exerted a formative influence upon the founders, both directly and through the mediation of Whig and American perspectives. The classics supplied mixed government theory, the principal basis for the U.S. Constitution. The classics contributed a great deal to the founders' conception of human nature, their understanding of the nature and purpose of virtue, and their appreciation of society's essential role in its production. The classics offered the founders companionship and solace, emotional resources necessary for coping with the deaths and disasters so common in their era. The classics provided the founders with a sense of identity and purpose, assuring them that their exertions were part of a grand universal scheme. The struggles of the Revolutionary and Constitutional periods gave the founders a sense of kinship with the ancients, a thrill of excitement at the opportunity to match their classical heroes' struggles against tyranny and their sage construction of durable republics. In short, the classics supplied a large portion of the founders' intellectual tools. Now, what about the Declaration of Independence? It was on June 7, 1776, that Richard Henry Lee introduced the ``Resolve'' clause, which was as follows: Resolved, that these United States Colonies are and of right ought to be free and independent states, that they are absolved from all allegiance to the British Crown, and that all political connection between them and the state of Great Britain is, and ought to be, totally dissolved. That it is expedient forthwith to take the most effectual measures for forming foreign alliances. That a plan of confederation be prepared and transmitted to the respective colonies for their consideration and approbation. Following the introduction of Lee's resolution, postponement of the question of independence was delayed until July 1. Nevertheless, on June 11, Congress appointed a committee made up of Jefferson, John Adams, Franklin, Roger Sherman, R.R. Livingston, to prepare a declaration. The committee reported on June 28, and, at last, on July 2, Congress decided for independence without a dissenting vote. The delegates considered the text of the declaration for two additional days, and adopted changes on July 4 and ordered the document printed. News that New York had approved on July 9 (the New York Delegates, having been prevented by instructions from assenting, had theretofore refrained from balloting) reached Philadelphia on July 15. Four days later, Congress ordered the statement engrossed. On August 2, signatures were affixed, although all ``signers'' were not then present. Inasmuch as the Declaration was an act of treason--for which any one of those signers or all collectively could have been hanged-- the names subscribed were initially kept secret by Congress. The text itself was widely publicized. Those forebearers of ours who had the courage and the fortitude and the backbone to write the Declaration of Independence, committed an act of treason for which their properties could have been confiscated, their rights could have been forfeited, and their lives could have been taken from them. That is what we are talking about in this Constitution. Men who not only understood life in their times, but also understood the cost of liberty, so they pledged their lives, their fortunes, their sacred honor. Those were not empty words. Would we have done so? Much of the Declaration of Independence was derived directly from the early state constitutions. The things have roots. They didn't come up like the prophet's gourd overnight. The Declaration contained twenty- eight charges against the English king justifying the break with Britain. At least 24 of the charges had also appeared in state constitutions. New Hampshire, South Carolina, and Virginia, in that order, adopted the first constitutions of independent states, and these three state constitutions contained 24 of the 28 charges set forth in the Declaration. Lists of grievances against George III had appeared in many of the newspapers, and as far back as May 31, 1775, the Mecklenburg (North Carolina) Resolves contained the following: Resolved: that we do hereby declare ourselves a free and independent people; are and of right ought to be a sovereign and self-governing association, under the control of no power, other than that of our God and the general government of the Congress: to the maintenance of which independence we solemnly pledge to each other our mutual cooperation, our lives, our fortunes, and our most sacred honor. Note that the last sentence of the Declaration of Independence says, ``And for the support of this Declaration, with a firm Reliance on the Protection of divine Providence, [we are not supposed to teach those things in our schools today] we mutually pledge to each other our Lives, our Fortunes, and our sacred Honor.'' Therefore, many of the phrases that were used by Jefferson had already appeared in various forms in the public print. Jefferson also borrowed from the phraseology of Virginia's Declaration of Rights written by George Mason, and adopted by the Virginia Constitutional Convention in June 1776. In the opening Section of that document, the following words appear: That all men are by nature equally free and independent and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety. Mason also stated in the Virginia Declaration of Rights, ``That all power is vested in, and consequently derived from the people,'' and that, ``when any government shall be found inadequate or contrary to these purposes, a majority of the community has and indubitable, inalienable, and indefeasible right to reform, alter, or abolish it in such manner as shall be judged most conducive to the public weal.'' Jefferson in the Declaration of Independence, stated that ``All men are created equal'' and that they were ``endowed by their creator with certain unalienable rights, that among these are life, liberty, and the pursuit of happiness--that to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed, that whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it, and to institute new government, laying its foundation on such principles, and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness.'' The last paragraph of the Declaration of Independence states that the representatives of the United States of America, in general Congress, assembled, ``Appealing to the supreme judge of the world for the rectitude of our intention, do, in the name, and by authority of the good people of these colonies, solemnly publish and declare, that these United Colonies are, and of right ought to be, free and independent [[Page S2917]] states; . . .'' Lutz, whose name I mentioned a few times already, makes the following comment: Any document calling on God as a witness would technically be a covenant. American constitutionalism had its roots in the covenant form that was secularized into the compact. One could argue that with God as a witness, the Declaration of Independence is in fact a covenant. The wording is peculiar, however, and the form of an oath is present, but the words stop short of what is normally expected. But the juxtaposition of a near oath and the words about popular sovereignty is an intricate dance around the covenant- compact form. The Declaration of Independence may be a covenant; it is definitely part of a compact. As to the words, ``All men are created equal,'' American political literature was full of statements that the American people considered themselves and the British people equal. Lutz states, with reference to this paragraph: `` `Nature's God' activates the religious grounding; `laws of nature' activate a natural rights theory such as Locke's. The Declaration thus simultaneously appeals to reason and to revelation as the basis for the American right to separate from Britain, create a new and independent people, and be considered equal to any other nation on earth.'' Now, as to the State Constitutions--I am talking about the roots, the roots of this Constitution. This Federal Constitution which we are talking about amending--what about the State Constitutions? Does the Federal Constitution have any roots in the State Constitutions? Throughout the spring of 1776 some of the colonies remained relatively immune to the contagion which prompted others to move toward independence. This prevented the Continental Congress from breaking with Britain. To spread the virus, John Adams and Richard Henry Lee induced the Committee of the Whole to report a resolution which Congress unanimously adopted on May 10. The resolving clause of that resolution recommended to the respective assemblies and conventions of the United Colonies, that, ``where no government sufficient to the exigencies of their affairs had been hitherto established, to adopt such government as shall, in the opinion of the representatives of the people, best conduce to the happiness and safety of their constituents in particular, and America in general.'' State constitutions were of great significance in the development of our Federal Constitution and our Federal system of government. When the Framers met in Philadelphia, they were familiar with the written constitutions of 13 states, and, as a matter of fact, many of those Framers had served in the State legislatures and conventions that debated and approved the State constitutions. Not only were they, the Framers, conversant with the organic laws of the 13 states, but they were also knowledgeable of the colonial experience under colonial government. As was ably stated by William C. Morey, in the September 1893 edition of ``Annals of the American Academy'' of Political and Social Science: The state constitutions were linked in the chain of colonial organic laws and they also formed the basis of the federal constitution. The change had its beginning in the early charters of the English trading companies, which were transformed into the organic laws of the colonies, which, in their turn, were translated into the constitutions of the original states, which contributed to the constitution of the federal union. The Pennsylvania Constitution of 1701 appears to have been the last written form of government that appeared in colonial times. There had been two previous Pennsylvania Constitutions--1683 and 1696--and these, together with the Massachusetts Charter of 1691, constitute the most advanced colonial forms and provide the nearest approach in the colonial period towards the final goal of the national constitution. The original 13 colonies became 13 States during the decade preceding the 1787 Convention, and all but Connecticut and Rhode Island wrote new constitutions in forming their state governments. These new state constitutions would provide important innovations in American constitutionalism, and the Framers at Philadelphia would benefit hugely, not only from the substantive material and form contained in the Constitutions but also from the experience gained under the Administration of the new governments. Let us examine some of these new constitutions, noting particularly those features in the State constitutions which would later appear, even if varying degree, in the Federal Constitution. Thus we shall see the guidance which these early State constitutions provided to the men at Philadelphia in 1787. Let us first examine article I of the Constitution and observe the amazing conformity therein with the equivalent provisions of the various State constitutions written a decade earlier in 1776 and 1777. Take section 1, for example, in which the U.S. Constitution vests all legislative powers in a Congress, consisting of a Senate and House. At least nine of the State constitutions have similar provisions--so you see, our constitutional Framers just did not pick this out of thin air--perhaps varying somewhat in form, which vest the lawmaking powers in a legislature consisting of two separate bodies, the lower of which is generally referred to as an assembly or House of Representatives or House of Delegates--as in the case of West Virginia, which was not in existence at that time, of course--or, as in the case of North Carolina, a House of Commons. The upper body is generally referred to as a Senate, but it varies, likewise, being sometimes referred to as a Council. Section 2 provides that the U.S. House of Representatives shall choose their speaker and other officers and shall have the sole power of impeachment, and at least a half-dozen states provided that the legislative bodies should choose their speaker and other officers. Section 3 provides for a rotation of Senators, two from each state, so that two-thirds of the Senate is always in being. Many of the state senators were to represent districts consisting of several counties or parishes or other political units, and several of the States, including Delaware and New York, provided for a rotation of the members of the upper body so that a supermajority of the Senate were always holdovers. The Great Compromise--which was worked out at the 1787 Convention and agreed to on July 16, 1787, providing that the Senate would represent the States, while the House of Representatives' representation would be based

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PROPOSING AN AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES TO PROTECT THE RIGHTS OF CRIME VICTIMS--Motion to Proceed--Continued
(Senate - April 26, 2000)

Text of this article available as: TXT PDF [Pages S2910-S2930] PROPOSING AN AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES TO PROTECT THE RIGHTS OF CRIME VICTIMS--Motion to Proceed--Continued The PRESIDING OFFICER. The Senator from Connecticut. Mr. DODD. Mr. President, I ask unanimous consent to yield my time to the distinguished senior Senator from West Virginia. The PRESIDING OFFICER. Without objection, it is so ordered. The Senator from West Virginia. Mr. BYRD. Mr. President, I have listened to the comments by my colleagues, those who are proponents of the proposed constitutional amendment before the Senate, and I have listened to the comments of many of my colleagues who have spoken in opposition to the proposed amendment. I compliment both sides on the debate. I think it is an enlightening debate. I will have more to say if the motion to proceed is agreed to. In view of the statements that have been made by several of those who are opposed to the amendment--the Senator from New York (Mr. Schumer), the Senator from Illinois (Mr. Durbin), and the Senator from Connecticut (Mr. Dodd), and others, they have cogently and succinctly expressed my sentiments in opposition to the amendment. I congratulate the Senator from Vermont, Mr. Leahy, on his statements in opposition thereto, as well as the leadership he has demonstrated not only on this proposed constitutional amendment but also in reference to other constitutional amendments before the Senate in recent days and in years past. He is a dedicated Senator in every respect. He certainly is dedicated to this Federal Constitution and very ably defends the Constitution. I do not say that our Constitution is static. John Marshall said it was a Constitution that was meant for the ages. I will go into that more deeply later. At a later date, I will address this particular amendment. But having been a Member of the Congress now going on 48 years, I may not be an expert on the Constitution, but I have become an expert observer of what is happening in this Congress and its predecessor Congresses, and an observer of what is happening by way of the Constitution. I consider myself to be as much an expert in that regard as anybody living because I have been around longer than most people. I have now been a Member of Congress, including both Houses, longer than any other Member of the 535 Members of Congress today. I must say that I am very concerned about the cavalierness which I have observed with respect to the offering of constitutional amendments. There seems to be a cavalier spirit abroad which seems to say that if it is good politically, if it sounds good politically, if it looks good politically, if it will get votes, let's introduce an amendment to the Constitution. I am not saying that with respect to proponents of this amendment, but, in my own judgment, I have seen a lot of that going on. I don't think there is, generally speaking, a clear understanding and appreciation of American constitutionalism. I don't think there is an understanding of where the roots of this Constitution go. I don't think there is an appreciation for the fact that the roots of this Constitution go 1,000 years or more back into antiquity. I do not address this proposed constitutional amendment as something that is necessary, nor do I address this, the Constitution today, as something that just goes back to the year 1787, 212 years ago. The Constitution was written by men who had ample experience, who benefited by their experience as former Governors, as former members of their State legislatures, as former members of the colonial legislatures which preceded the State legislatures, as former Members of the Continental Congress which began in 1794, as Members of the Congress under the Articles of Confederation which became effective in 1781. Some of the members of the convention came from England, from Scotland, from Ireland. Alexander Hamilton was born in the West Indies. These men were very well acquainted with the experiences of the colonialists. They were very much aware of the weaknesses, the flaws in the Articles of Confederation. They understood the State constitutions. Most of the 13 State constitutions were written in the years 1776 and 1777. Many of the men who sat in the Constitutional Convention of 1787 had helped to create those State constitutions of 1776 and 1777 and subsequent thereto. Many of them had experience on the bench. They had experiences in dealing with Great Britain during and prior to the American Revolution. Some of them had fought in Gen. George Washington's polyglot, motley army. These men came with great experience. Franklin was 81 years [[Page S2911]] old. Hamilton was 30. The tall man with the peg leg, Gouverneur Morris, was 35. Madison was 36. They were young in years, but they had tremendous experience back of those years. So the Constitution carries with it the lessons of the experiences of the men who wrote it. They were steeped in the classics. They were steeped in ancient history. They knew about Polybius. They knew how he wrote about mixed government. They knew what Herodotus had to say about mixed government. They knew what other great Greek and Roman authors of history had learned by experience, centuries before the 18th century. They knew about the oppression of tyrannical English monarchs. They knew the importance of the English Constitution, of the Magna Carta, of the English Bill of Rights in 1689. They knew about the English Petition of Right in 1628. All of these were parts of the English Constitution, an unwritten Constitution except for those documents, some of which I have named--the Petition of Right, the Magna Carta, the decisions of English courts, and English statutes. So to stand here and say, in essence, that the Constitution reflects the viewpoints of the men who wrote that Constitution in 1787, or only reflects the views of our American predecessors of 1789, or those who ratified the Constitution in 1790 or in 1791, is only a partial truth. The roots of this Constitution--a copy of which I hold in my hand--go back 1,000 years, long before 1787, long before 1791 when the first 10 amendments which constitute the American Bill of Rights were ratified. That was only a milestone along the way--1787, 1791. These were mere milestones along the way to the real truths, the real values that are in this Constitution, a copy of which I hold in my hand. Those are only milestones along the way, far beyond 1787, far beyond 1776 or 1775 or 1774. Why was that revolution fought? Why did our forbears take stand there on the field of Lexington, on April 19, and shed their blood? Why was that revolution fought? It was fought on behalf of liberty. That is what this Constitution is all about--liberty, the rights of a free people, the liberties of a free people. Liberty, freedom from oppression, freedom from oppressive government, that is why they shed their blood at Lexington and at Bunker Hill and at Kings Mountain and at Valley Forge, down through the decades and the centuries. The blood of Englishmen was spilled centuries earlier in the interests of liberty, in the interests of freedom: Freedom of the press, freedom to speak, freedom to stand on their feet in Parliament and speak out against the King, freedom from the oppression of the heavy hand of government. That is what that Constitution is about. There are those who think that the Constitution sprang from the great minds of those 39 men who signed the Constitution at the Convention, of the 55 who attended the meetings of the Convention--some believe that it sprang from their minds right on the spot. Some believe that it came, like manna from Heaven, fell into their arms. It sprang like Minerva from the brain of Jove. That is what they think. No, I say a miracle happened at Philadelphia, but that was not the miracle. The miracle that occurred at Philadelphia was the miracle that these minds of illustrious men gathered at a given point in time, at Philadelphia, and over a period of 116 days wrote this Constitution. It could not have happened 5 years earlier because they were not ready for it. Their experiences of living under the Articles of Confederation had not yet ripened to a point where they were ready to accept the fact that there had to be a new government, a new constitution written. And it could not have happened 5 years later because the violence that they saw in France, as the guillotine claimed life after life after life, had not yet happened. Some 5 years later, they would have seen that violence of the French Revolution, and they would have recoiled in horror from it. The writing of this Constitution happened at the right time, at the right place, and it was written by the right men. That was the miracle of Philadelphia. Here we are today talking about amending it, this great document, the greatest document of its kind that was ever written in the history of the world. There is nothing to compare it with, by way of man-made documents. Who would attempt to amend the Ten Commandments that were handed down to Moses? Not I. Yet, we, little pygmies on this great stage, before the world, would attempt to pit our talents and our wisdom against the talents and wisdom, the experience and the viewpoints of men such as George Washington, James Madison, Alexander Hamilton, Gouverneur Morris, Benjamin Franklin, John Dickenson, James Wilson, Roger Sherman? In article V of this Constitution, they had the foresight to write the standard. If we want to find the standard for this Constitutional amendment, or any other Constitutional amendment here is the standard in the Constitution itself. The Congress, whenever two-thirds of both Houses shall deem it necessary-- The Congress, whenever two thirds of both Houses shall deem it necessary-- shall propose Amendments. . . . I don't say that the Constitution is static. I don't say it never should be amended. I would vote for a constitutional amendment if I deemed it ``necessary.'' Certainly, I do not see this proposed amendment as necessary, but I will have more to say about that later. I don't say that the Constitution is perfect. I do say that there is no other comparable document in the world that has ever been created by man. And when that Constitution uses the word ``necessary,'' it means ``necessary,'' because no word in that Constitution was just put into that document as a place filler. I do think this is a time that I might speak a little about the constitutionalism behind the American Constitution. I think it might be well for anyone who might be patient enough or interested enough, to hear what I am going to say, because I don't think enough people understand the Constitution. I am sure they don't understand the roots of the Constitution. They don't understand American constitutionalism. It is a unique constitutionalism, the American constitutionalism. I don't think most people understand it. In response to a recent nationwide poll, 91 percent of the respondents agreed with this statement: ``The U.S. Constitution is important to me.'' Mr. President, 91 percent of the respondents agreed to that: ``The U.S. Constitution is important to me.'' Yet only 19 percent of the people polled knew that the Constitution was written in 1787; only 66 percent recognized the first 10 amendments to the Constitution as the Bill of Rights--only 66 percent. Only 58 percent answered correctly that there were three branches of the Federal Government; 17 percent were able to recall that freedom of assembly is guaranteed by the first amendment to the Constitution--17 percent, 17 percent. Yet you see them out here all the time, on the Capitol steps, assembling, petitioning the Government for a redress of what they conceive to be grievances. They know they have that right, but only 17 percent were able to recall that freedom of assembly is guaranteed by the first amendment to the Constitution. Only 7 percent remembered that the Constitution was written at the Constitutional Convention; 85 percent believed that the Constitution stated that ``All men are created equal''--or failed to answer the question; and only 58 percent agreed that the following statement is false: ``The Constitution states that the first language of the U.S. is English.'' The American people love the Constitution. They believe the Constitution is good for them collectively and individually, but they do not understand much about it. And the same can be said with respect to constitutionalism. The same can be said with respect to the Members of Congress; that means both Houses. Not a huge number, I would wager, of the Members of the Congress of both Houses know a great deal about the Constitution. How many of them have ever read it twice? Each of us takes an oath to support and defend the Constitution of the United States every time we are elected or reelected. We stand right up at that desk with our hand on the Bible--at least that is the image people have of us--and we swear in the presence of men and Almighty God to support and defend that Constitution. How many of us have read it twice? How many of us [[Page S2912]] really know what is in that Constitution? And yet we will suggest amendments to it. With 91 percent of the people polled agreeing that the U.S. Constitution is important to themselves, it is a sad commentary that this national poll would reveal that so many of these same Americans are so hugely ignorant of their Constitution and of the American history that is relevant thereto. Let us think together for a little while about this marvelous Constitution, its roots and origins and, in essence, the genesis of American constitutionalism--a subject about which volumes have been written and will continue to be written. It is with temerity that I would venture to expound upon such a grand subject, but I do so with a full awareness of my own limited knowledge and capabilities in this respect, which I freely admit, and for which I just as freely apologize. Nonetheless, let us have at it because the clock is running and time stops for no one, not even a modern day Joshua. Was Gladstone correct in his reputed declaration that the Constitution was ``the most wonderful work ever struck off at a given time by the brain and purpose of man''? Well, hardly. In 1787, the only written constitutions in the world existed in English-speaking America, where there were 13 State constitutions and a constitution for the Confederation of the States, which was agreed upon and ratified in 1781. That was our first National Constitution. Americans were the heirs of a constitutional tradition that was mature by the time of the Convention that met in Philadelphia. Americans had tested that tradition between 1776 and 1787 by writing eleven of the State constitutions and the Articles of Confederation. Later, with the writing of the United States Constitution, they brought to completion the tradition of constitutional design that had begun a century and a- half or two centuries earlier. So when someone stands here and says that this Constitution just represents what those people of 1789 or 1787 or 1791 believed, what they thought, then I say we had better stop, look, and listen. The work of the Framers brought to completion the tradition of constitutional design that had begun a century and a half or two centuries earlier right here in America. Let us move back in point of time and attempt to trace the roots of what is in this great organic document, the Constitution of the United States. Looking back, the search--we are going backward in time now-- takes us first to the Articles of Confederation. A lot of people in this country do not know that the Articles of Confederation ever existed. They have forgotten about them. They never hear about them anymore. And then to the earliest State constitutions, and back of these--going back, back in point of time--were the colonial foundation documents that are essentially constitutional, such as the Pilgrim Code of Law, and then to the proto-constitutions, such as the Fundamental Orders of Connecticut and the Mayflower Compact. As one scholar, Donald S. Lutz, has noted: The political covenants written by English colonists in America lead us to the church covenants written by radical Protestants in the late 1500's and early 1600's, and these in turn lead us back to the Covenant tradition of the Old Testament. It is appropriate, for our purposes here to focus for a short time on those Old Testament covenant traditions because they were familiar not only to the early settlers from Europe--your forebears and mine--but also to the learned men who framed the United States Constitution. In the book of Genesis we are told that the Lord appeared to Abram saying: ``Get thee out of thy country, and from thy kindred, and from thy father's house, unto a land that I will show thee: and I will make of thee a great nation, and I will bless thee, and make thy name great;'' (Genesis 12:1,2) In Chapter 17 of Genesis, verses 4-7, God told Abram: ``As for me, behold, my covenant is with thee, and thou shalt be a father of many nations. Neither shall thy name any more be called Abram, but thy name shall be Abraham; for a father of many nations have I made thee. . . . And I will make nations of thee, and kings shall come out of thee. And I will establish my covenant between me and thee and thy seed after thee in their generations for an everlasting covenant, to be a God unto thee, and to thy seed after thee.'' Again, speaking to Abraham, God said: ``This is my covenant, which ye shall keep, between me and you and thy seed after thee; Every man child among you shall be circumcised.'' (Genesis 17:10) The Abrahamic covenant was confirmed upon subsequent occasions, one of which occurred after Abraham had prepared to offer Isaac, his son, as a burnt offering in obedience to God's command, at which time an angel of the Lord called out from heaven and commanded Abraham, ``Lay not thine hand upon the lad, . . . for now I know that thou fearest God.'' (Genesis 22:12) The Lord then spoke to Abraham saying, ``I will bless thee, and in multiplying, I will multiply thy seed as the stars of the heaven, and as the sand which is upon the sea shore . . . because thou hast obeyed my voice.'' (Genesis 22:17,18) God's covenant with Abraham was later confirmed in an appearance before Isaac, saying: ``Go not down into Egypt; dwell in the land which I shall tell thee of.'' Sojourn (see Gen. 26:3-5) God subsequently confirmed and renewed this covenant with Jacob, as he slept with his head upon stones for his pillows and dreamed of a ladder set upon the earth, and the top of it reached to heaven, with angels of God ascending and descending on it. God spoke, saying: ``I am the Lord God of Abraham, . . . and the God of Isaac: the land whereon thou liest, to thee will I give it, and to thy seed; and thy seed shall be as the dust of the earth . . . and in thee and in thy seed shall all the families of the earth be blessed.'' (Genesis 28:11-14) At Bethel, in the land of Canaan, Jacob built an altar to God, and God appeared unto Jacob, saying: ``Thy name is Jacob; thy name shall not be called any more Jacob, but Israel shall be thy name.'' And God said unto him, ``I am God almighty: be fruitful and multiply; a nation and a company of nations shall be of thee, and kings shall come out of thy loins; and the land which I gave Abraham and Isaac, to thee I will give it, and to thy seed after thee will I give the land.'' (Genesis 35:10,11) The book of Exodus takes up where Genesis leaves off, and we find that the descendants of Jacob had become a nation of slaves in Egypt. After a sojourn that lasted 430 years, God then brought the Israelites out of Egypt that he might bring them as his own prepared people into the Promised Land. Exodus deals with the birth of a nation, and all subsequent Hebrew history looks back to Exodus as the compilation of the acts of God that constituted the Hebrews a nation. Thus far, we have seen the successive covenants entered into between God and Abraham and between God and Isaac and between God and Jacob; we have seen the creation of a nation through what might be described as a federation--there is the first system of federalism--a federation of the 12 tribes of Israel, the 12 sons of Jacob having been recognized as the patriarchs of their respective tribes. Joshua succeeded Moses as leader of the Israelites. Then came the prophets and the judges of Israel, and the turmoils of the divided kingdoms of Judah and Israel. Samuel anointed the first king--Saul, and the kingship of David followed. Thus we see the establishment of a monarchy. God covenanted with David, speaking to him through Nathan the prophet, and God promised to raise up David's seed after his death, according to which a son would be born of David, whose name would be Solomon. Furthermore, Solomon would build a house for the Lord and would receive wisdom and understanding. The Ark of the Covenant of the Lord, and the holy vessels of God, would be brought into the sanctuary that was to be built to the name of the Lord. Now I have spoken of the creation of the Hebrew nation, and not without good reason. The American constitutional tradition derives much of its form and much of its content from the Judeo-Christian tradition as interpreted by the radical Protestant sects to which belonged so many of the original European settlers in British North America. Donald S. Lutz, in his work entitled ``The Origins of American Constitutionalism'', says: ``The tribes of Israel [[Page S2913]] shared a covenant that made them a nation. American federalism originated at least in part in the dissenting Protestants' familiarity with the Bible''. The early Calvinist settlers who came to this country from the Old World brought with them a familiarity with the Old Testament covenants that made them especially apt in the formation of colonial documents and state constitutions. Winton U. Solberg tells us that in 17th-century colonial thought, divine law, a fusion of the law of nature in the Old and New Testaments, usually stood as fundamental law. The Mayflower Compact--we have all heard of that--the Mayflower Compact exemplified the Doctrine of Covenant or Contract. Puritanism exalted the biblical component and drew on certain scriptural passages for a theological outlook. Called the Covenant or Federal Theology, this was a theory of contract regarding man's relations with God and the nature of church and state. Man was deemed an impotent sinner until he received God's grace, and then he became the material out of which sacred and civil communities were built. Another factor that contributed to the knowledge of the colonists and to their experience in the formation of local governments, was the typical charter from the English Crown. These charters generally required that the colonists pledge their loyalty to the Crown, but left up to them, the colonists, the formation of local governments as long as the laws which the colonists established comported with, and were not repugnant to, the laws of England. Boards of Directors in England nominally controlled the colonies. The fact that the colonies were operating thousands of miles away from the British Isles, together with the fact that the British Government was so involved in a bloody civil war, made it possible for the American colonies to operate and evolve with much greater freedom and latitude than would otherwise have been the case. The experiences gained by the colonists in writing documents that formed the basis for local governments, and the benefits that flowed from experience in the administration of those colonial governments, contributed greatly to the reservoir of understanding of politics and constitutional principles developed by the Framers. Although the Constitution makes no specific mention of federalism, the federal system of 1787 was not something new to the Framers. Compacts had long been used as a device to knit settlements together. For example, the Fundamental Orders of Connecticut, 1639, established a Common government for the towns of Hartford, Windsor, and Wethersfield, while each town government remained intact. In 1642, the towns of Providence, Pocasset, Portsmouth, and Warwick in Rhode Island devised a compact known as the Organization of the Government of Rhode Island, a federation which became a united colony under the 1663 Rhode Island Charter. The New England Confederation of 1643 was a compact for uniting the colonies of Massachusetts, Connecticut, Plymouth, and New Haven, each of which was comprised of several towns that maintained their respective governments intact. Thus, the Framers were guided by a long experience with federalism or confederalism, including the Articles of Confederation--an experience that was helpful in devising the new national federal system. Lutz says that the states, in writing new constitutions in the 1770s, ``drew heavily upon their respective colonial experience and institutions. In American constitutionalism, there was more continuity and from an earlier date than is generally credited.'' That is why I am here today speaking on this subject. Let it be heard. Let it be known that the roots of this Constitution go farther back than 1787, farther back than its ratification in 1791--farther back. They were writing based on historical experiences that went back 1,000 years, before the Magna Carta, back to the Anglo-Saxons, back another 2,000 years, back another 1,500 years, back to the federalism of the Jewish tribes of Israel and Judah. Wake up. This Constitution wasn't just born yesterday or in 1787. Let us go back to history. Let us study the history of American constitutionalism, its roots, how men suffered under oppressive governments. Then we will have a little better understanding of this Constitution. No, the Constitution is not static. History is not static. The journey of mankind over the centuries is not static. We can always learn from history. To what extent were the Framers influenced by political theorists and republican spokesmen from Britain and the Continent? According to Solberg, republican spokesmen in England constituted an important link on the road to the realization of a republic in the United States. I hear Senators stand on this floor and say that we live in a democracy. This is not a democracy. This is a republic. You don't have to believe Robert C. Byrd. Go to Madison, go to ``The Federalist Papers,'' Federalist Paper No. 10 or Federalist Paper No. 14--those of you who are listening--and you will find the definition of a democracy and the definition of a republic. You will find the difference between the two. John Milton, whose literary accomplishments and Puritanism assured him of notice in the colonies, was significant for the views expressed in his political writings. He supported the sovereign power of the people, argued for freedom of publications, and justified the death penalty for tyrants. English political thinkers who influenced American constitutionalism and who exerted an important influence in the colonies were Bolingbroke, Addison, Pope, Hobbes, Blackstone, and Sir Edward Coke. And there were others. John Locke may be said to have symbolized the dominant political tradition in America down to and in the convention of 1787. Locke equated property with ``life, liberty, and estate'' and was the crucial right on which man's development depends. Nature, Locke thought, creates rights. Society and government are only auxiliaries which arise when men consent to create them in order to preserve property in the larger sense, and a community calls government into being to secure additional protection for existing rights. As representatives of the people, the legislature is supreme but is itself controlled by the fundamental law. Locke limits government by separating the legislative and administrative functions of government to the end that power may not be monopolized. That is assured by our Constitution also. The people possess the ultimate right of resisting a government which abuses its delegated powers. Such a violation of the contract justified the community in resuming authority. David Hume dealt with the problem of faction in a large republic, and promoted the device of fragmenting election districts. Madison, when faced with the same problem in preparing for the federal convention, supported the idea of an extended republic--drawing upon Hume's solution. Blackstone's view was that Parliament was supreme in the British system and that the locus of sovereignty was in the lawmaking body. His absolute doctrine was summed up in the aphorism that ``Parliament can do anything except make a man a woman or a woman a man.'' His ``Commentaries on the Laws of England'' was the most complete survey of the English legal system ever composed by a single hand. The commentaries occupied a crucial role in legal education, and many of Blackstone's ideas were uppermost on American soil from 1776 to 1787, with vital significance for constitutional development both in the states and in Philadelphia. Although delegates to the convention acknowledged Blackstone as the preeminent authority on English law, they, nevertheless, succeeded in separating themselves from some of his other views. James Harrington's ``Oceana'' presented a republican constitution for England in the guise of a utopia. He concluded that since power does follow property, especially landed property, the stability of society depends on political representation reflecting the actual ownership of property. The distinguishing feature of Harrington's commonwealth was ``an empire of laws and not of men.'' Harrington proposed an elective ballot, rotation in office, indirect election, and a two-chamber legislature. This goes back a long way, doesn't it? [[Page S2914]] Harrington proposed legislative bicameralism as a precaution against the dangers of extreme democracy, even in a commonwealth in which property ownership was widespread. He argued that a small and conservative Senate should be able to initiate and discuss but not decide measures, whereas a large and popular house should resolve for or against these without discussion. These were novel but significant ideas that became influential in America, in this country, before 1787. John Adams was an ardent disciple of Harrington's views. James Harrington was the modern advocate of mixed government most influential in America. That is what ours is. The government of his ``Oceana'' consisted of a Senate which represented the aristocracy; a huge assembly elected by the common people, thus representing a democracy; and an executive, representing the monarchical element, to provide a balancing of power. Harrington's respect for mixed government was shared by Algernon Sidney, who declared: ``There never was a good government in the world that did not consist of the three simple species of monarchy, aristocracy, and democracy.'' The mixed government theorists saw the British king, the House of Lords, and the House of Commons as an example of a successful mixed government. The notion of mixed government goes all the way back to Herodotus, and who knows how far beyond. It was a notion that had been around for several centuries. Herodotus in his writings concerning Persia had expounded on the idea, but it had lost popularity until it was revived by the historian Polybius who lived between the years circa 205-125 B.C. It was a governmental form that pitted the organs of government representing monarchy, aristocracy, and democracy against each other to achieve balance and, thus, stability. The practice of mixed government collapsed along with the Roman Republic, but the doctrine was revived in 17th century England--now we are getting closer--from which it passed to the New World. Those who wrote the Constitution weren't just writing based on the experiences of their time. Let us turn now to a consideration of the renowned French philosopher and writer, Montesquieu. Montesquieu had a considerable impact upon the political thinking of our constitutional Framers. They were conversant with the political theory and philosophy of Montesquieu, who was born 1689--a hundred years before our Republic was formed--and died in 1755. He died just 32 years before our constitutional forebears met in Philadelphia. Americans of the Revolutionary period were well acquainted with the philosophical and political writings of Montesquieu in reference to the separation of powers, and John Adams was particularly strong in supporting the doctrine of separation of powers in a mixed government. Montesquieu advocated the principle of separation of powers. He possessed a belief, which was faulty, that a huge territory did not lend itself to a large republic. He believed that government in a vast expanse of territory would require force and this would lead to tyranny. He believed that the judicial, executive, and legislative powers should be separated. If they were kept separated, the result would be political freedom, but if these various powers were concentrated in one man, as in his native France, then the result would be tyranny. Montesquieu visited the more important and larger political divisions of Europe and spent a considerable time in England. His extensive English connections had a strong influence on the development of his political philosophy. We are acquainted with his ``Spirit of the Laws'' and with his ``Persian Letters,'' but perhaps we are not so familiar with the fact that he also wrote an analysis of the history of the Romans and the Roman state. This essay, titled ``Considerations on the Causes of the Greatness of the Romans and their Decline,'' was produced in 1734. Considering the fact that Montesquieu was so deeply impressed with the ancient Romans and their system of government, and in further consideration of his influence upon the thinking of the Framers and upon the thinking of educated Americans generally during the period of the American Revolution, let us consider the Roman system as it was seen by Polybius, the Greek historian, who lived in Rome from 168 B.C., following the battle of Pydna, until after 150 B.C., at a time when the Roman Republic was at a pinnacle of majesty that excited his admiration and comment. Years later, Adams recalled that the writings of Polybius ``Were in the contemplation of those who framed the American Constitution.'' Polybius provided the most detailed analysis of mixed government theory. He agreed that the best constitution assigned approximately equal amounts of power to the three orders of society and explained that only a mixed government could circumvent the cycle of discord which was the inevitable product of the simple forms. Polybius saw the cycle as beginning when primitive man, suffering from violence, privation, and fear, consented to be ruled by a strong and brave leader. When the son was chosen to succeed this leader, in the expectation that the son's lineage would lead him to emulate his father, the son, having been accustomed to a special status from birth, was lacking in a sense of duty to the public and, after acquiring power, sought to distinguish himself from the rest of the people. Thus, monarchy deteriorated into tyranny. The tyranny then would be overturned by the noblest of aristocrats who were willing to risk their lives. The people naturally chose them to succeed the king as ruler, the result being ``ruled by the best,''--an aristocracy. Soon, however, aristocracy deteriorated into oligarchy because, in time, the aristocrats' children placed their own welfare above the welfare of the people. A democracy was created when the oppressed people rebelled against the oligarchy. But in a democracy, the wealthy corrupted the people with bribes and created faction in order to raise themselves above the common level in the search for status and privilege and additional wealth. Violence then resulted and ochlocracy (mob rule) came into being. As the chaos mounted to epic proportions, the people's sentiment grew in the direction of a dictatorship, and monarchy reappeared. Polybius believed that this cycle would repeat itself over and over again indefinitely until the eyes of the people opened to the wisdom of balancing the power of the three orders. Polybius considered the Roman Republic to be the most outstanding example of mixed government. Polybius viewed the Roman Constitution as having three elements: the executive, the Senate, and the people; with their respective shares of power in the state regulated by a scrupulous regard to equality and equilibrium. Let us examine this separation of powers in the Roman Republic as explained by Polybius. The consuls--representing the executive--were the supreme masters of the administration of the government when remaining in Rome. All of the other magistrates, except the tribunes, were under the consuls and took their orders from the consuls. The consuls brought matters before the Senate that required its deliberation, and they saw to the execution of the Senate's decrees. In matters requiring the authorization of the people, a consul summoned the popular meetings, presented the proposals for their decision, and carried out the decrees of the majority. The majority rules. In matters of war, the consuls imposed such levies upon manpower as the consuls deemed appropriate, and made up the roll for soldiers and selected those who were suitable. Consuls had absolute power to inflict punishment upon all who were under their command, and had all but absolute power in the conduct of military campaigns. As to the Senate, it had complete control over the treasury, and it regulated receipts and disbursements alike. The quaestors (or secretaries of the treasury) could not issue any public money to the various departments of the state without a decree of the Senate. The Senate also controlled the money for the repair and construction of public works and public buildings throughout Italy, and this money could not be obtained by the censors, who oversaw the contracts for public works and public buildings, except by the grant of the Senate. [[Page S2915]] The Senate also had jurisdiction over all crimes in Italy requiring a public investigation, such as treason, conspiracy, poisoning, or willful murder, as well as controversies between and among allied states. Receptions for ambassadors, and matters affecting foreign states, were the business of the Senate. What part of the Constitution was left to the people? The people participated in the ratification of treaties and alliances, and decided questions of war and peace. The people passed and repealed laws-- subject to the Senate's veto--and bestowed public offices on the deserving, which, according to Polybius, ``are the most honorable rewards for virtue.'' Polybius, having described the separation of powers under the Roman Constitution, how did the three parts of state check and balance each other? Polybius explained the checks and balances of the Roman Constitution, as he had observed them first hand. Remember, he was living in Rome at the time. What were the checks upon the consul, the executive? The consul-- whose power over the administration of the government when in the city, and over the military when in the field, appeared absolute--still had need of the support of the Senate and the people. The consul needed supplies for his legions, but without a decree of the Senate, his soldiers could be supplied with neither corn nor clothes nor pay. Moreover, all of his plans would be futile if the Senate shrank from danger, or if the Senate opposed his plans or sought to hamper them. Therefore, whether the consul could bring any undertaking to a successful conclusion depended upon the Senate, which had the absolute power, at the end of the consul's one-year term, to replace him with another consul or to extend his command or his tenure. The consuls were also obliged to court the favor of the people, so here is the check of the people against the consuls, for it was the people who would ratify, or refuse to ratify, the terms of peace. But most of all, the consuls, when laying down their office at the conclusion of their one-year term, would have to give an accounting of their administration, both to the Senate and to the people. It was necessary, therefore, that the consuls maintain the good will of both the Senate and the people. What were the checks against the Senate? The Senate was obliged to take the multitude into account and respect the wishes of the people, for in matters directly affecting the Senators--for instance, in the case of a law diminishing the Senate's traditional authority, or depriving Senators of certain dignities, or even actually reducing the property of Senators--in such cases, the people had the power to pass or reject the laws of the Assembly. In addition, according to Polybius, if the tribunes imposed their veto, the Senate would not only be unable to pass a decree, but could not even hold a meeting. And because the tribunes must always have a regard for the people's wishes, the Senate could not neglect the feelings of the multitude. But as a counter balance, what check was there against the people? We have seen certain checks against the consul; we have described some of the checks against the Senate. What about the people? According to Polybius, the people were far from being independent of the Senate, and were bound to take its wishes into account, both collectively and individually. For example, contracts were given out in all parts of Italy by the censors for the repair and construction of public works and public buildings. Then there was the matter of the collection of revenues from rivers and harbors and mines and land--everything, in a word, that came under the control of the Roman government. In all of these things, the people were engaged, either as contractors or as pledging their property as security for the contractors, or in selling supplies or making loans to the contractors, or as engaging in the work and in the employ of the contractors. Over all of these transactions, says Polybius, the Senate ``has complete control.'' For example, it could extend the time on a contract and thus assist the contractors; or, in the case of unforeseen accident, it could relieve the contractors of a portion of their obligation, or it could even release them altogether if they were absolutely unable to fulfill the contract. Thus, there were many ways in which the Senate could inflict great hardships upon the contractors, or, on the other hand, grant great indulgences to the contractors. But in every case, the appeal was to the Senate. Moreover, the judges were selected from the Senate, at the time of Polybius, for the majority of trials in which the charges were heavy. Consequently, the people were cautious about resisting or actively opposing the will of the Senate, because they were uncertain as to when they might need the Senate's aid. For a similar reason, the people did not rashly resist the will of the consuls because one and all might, in one way or another, become subject to the absolute power of the consuls at some point in time. Polybius had spoken of a regular cycle of constitutional revolution, and the natural order in which constitutions change, are transformed, and then return again to their original stage. Plato on the same line, had arranged six classifications in pairs: kingship would degenerate into tyranny; aristocracy would degenerate into oligarchy; and democracy would degenerate into violence and mob rule--after which, the cycle would begin all over again. Aristotle had had a similar classification. According to Polybius, Lycurgus--the Spartan lawgiver of, circa, the 9th century B.C.--was fully aware of these changes, and accordingly combined together all of the excellences and distinctive features of the best constitutions, in order that no part should become unduly predominant and be perverted into its kindred vice; and that, each power being checked by the others, no one part should turn the scale or decisively overbalance the others; but that, by being accurately adjusted and in exact equilibrium, ``the whole might remain long steady like a ship sailing close to the wind.'' Polybius summed it up in this way: When any one of the three classes becomes puffed up, and manifests an inclination to be contentious and unduly encroaching, the mutual interdependency of all the three, and the possibility of the pretensions of any one being checked and thwarted by the others, must plainly check this tendency. And so the proper equilibrium is maintained by the impulsiveness of the one part being checked by its fear of the other. Polybius' account may not have been an exact representation of the true state of the Roman system, but he was on the scene, and he was writing to tell us what he saw with his own eyes, not through the eyes of someone else. What better witness could we have? Mr. President, before the Convention was assembled, Madison studied the histories of all these ancient people--the different kinds of governments--aristocracy, oligarchy, monarchy, democracy, and republic. He prepared himself for this Convention. And there were others in that Convention who were very well prepared also--James Wilson, Dr. William Samuel Johnson, and others. The theory of a mixed constitution had had its great measure of success in the Roman Republic. It is not surprising then, that the Founding Fathers of the United States should have been familiar with the works of Polybius, or that Montesquieu should have been influenced by the checks and balances and separation of powers in the Roman constitutional system, a clear and central element of which was the control over the purse, vested solely in the Senate in the heyday of the Republic. Were the Framers influenced by the classics? Every schoolchild and student in the universities learned how to read and write Greek and Latin. Those were required subjects. The founders were steeped in the classics, and both the Federalists and the Anti-federalists resorted to ancient history and classical writings in their disquisitions. Not only were classical models invoked; the founders also had their classical ``antimodels''--those individuals and government forms of antiquity whose vices and faults they desired to avoid. Classical philosophers and the theory of natural law were much discussed during the period prior to and immediately following the American Revolution. It was a time of great political ferment, and thousands of circulars, [[Page S2916]] pamphlets, and newspaper columns displayed the erudition of Americans who delighted in classical allusions. Our forbears were erudite. They circulated their pamphlets and their newspaper columns. They talked about these things. Who today studies the classics? Who today studies the different models and forms of government? Who today writes about them? The 18th-century educational system provided a rich classical conditioning for the founders and immersed them with an indispensable training. They were familiar with Ovid, Homer, Horace, and Virgil, and they had experienced solid encounters with Tacitus, Thucydides, Livius, Plutarch, Suetonius, Eutropius, Xenophon, Florus, and Cornelius Nepos, as well as Caesar's Gallic Wars. They were undoubtedly influenced by a thorough knowledge of the vices of Roman emperors, the logic of orations by Cicero and Demosthenes, and the wisdom and virtue of the scriptures. They freely used classical symbols, pseudonyms, and allusions to communicate through pamphlets and the press. To persuade their readers they frequently wrapped themselves and their policies in such venerable classical pseudonyms as ``Aristides,'' ``Tully'', ``Cicero'', ``Horatius'', and ``Camillus.'' The Federalist essays, 85 of them in number were signed by ``Publius.'' Some of the Anti-federalists dubbed themselves ``Cato,'' while others called themselves ``Cincinnatus'' or ``A Plebeian.'' The appropriation of classical pseudonyms was sometimes used in private discourse for secret correspondence. George Washington's favorite play was Joseph Addison's ``Cato'' in which Cato committed suicide rather than submit to Caesar's occupation of Utica. In the words of Carl J. Richard, in his book ``The Founders and the Classics'' It is my contention that the classics exerted a formative influence upon the founders, both directly and through the mediation of Whig and American perspectives. The classics supplied mixed government theory, the principal basis for the U.S. Constitution. The classics contributed a great deal to the founders' conception of human nature, their understanding of the nature and purpose of virtue, and their appreciation of society's essential role in its production. The classics offered the founders companionship and solace, emotional resources necessary for coping with the deaths and disasters so common in their era. The classics provided the founders with a sense of identity and purpose, assuring them that their exertions were part of a grand universal scheme. The struggles of the Revolutionary and Constitutional periods gave the founders a sense of kinship with the ancients, a thrill of excitement at the opportunity to match their classical heroes' struggles against tyranny and their sage construction of durable republics. In short, the classics supplied a large portion of the founders' intellectual tools. Now, what about the Declaration of Independence? It was on June 7, 1776, that Richard Henry Lee introduced the ``Resolve'' clause, which was as follows: Resolved, that these United States Colonies are and of right ought to be free and independent states, that they are absolved from all allegiance to the British Crown, and that all political connection between them and the state of Great Britain is, and ought to be, totally dissolved. That it is expedient forthwith to take the most effectual measures for forming foreign alliances. That a plan of confederation be prepared and transmitted to the respective colonies for their consideration and approbation. Following the introduction of Lee's resolution, postponement of the question of independence was delayed until July 1. Nevertheless, on June 11, Congress appointed a committee made up of Jefferson, John Adams, Franklin, Roger Sherman, R.R. Livingston, to prepare a declaration. The committee reported on June 28, and, at last, on July 2, Congress decided for independence without a dissenting vote. The delegates considered the text of the declaration for two additional days, and adopted changes on July 4 and ordered the document printed. News that New York had approved on July 9 (the New York Delegates, having been prevented by instructions from assenting, had theretofore refrained from balloting) reached Philadelphia on July 15. Four days later, Congress ordered the statement engrossed. On August 2, signatures were affixed, although all ``signers'' were not then present. Inasmuch as the Declaration was an act of treason--for which any one of those signers or all collectively could have been hanged-- the names subscribed were initially kept secret by Congress. The text itself was widely publicized. Those forebearers of ours who had the courage and the fortitude and the backbone to write the Declaration of Independence, committed an act of treason for which their properties could have been confiscated, their rights could have been forfeited, and their lives could have been taken from them. That is what we are talking about in this Constitution. Men who not only understood life in their times, but also understood the cost of liberty, so they pledged their lives, their fortunes, their sacred honor. Those were not empty words. Would we have done so? Much of the Declaration of Independence was derived directly from the early state constitutions. The things have roots. They didn't come up like the prophet's gourd overnight. The Declaration contained twenty- eight charges against the English king justifying the break with Britain. At least 24 of the charges had also appeared in state constitutions. New Hampshire, South Carolina, and Virginia, in that order, adopted the first constitutions of independent states, and these three state constitutions contained 24 of the 28 charges set forth in the Declaration. Lists of grievances against George III had appeared in many of the newspapers, and as far back as May 31, 1775, the Mecklenburg (North Carolina) Resolves contained the following: Resolved: that we do hereby declare ourselves a free and independent people; are and of right ought to be a sovereign and self-governing association, under the control of no power, other than that of our God and the general government of the Congress: to the maintenance of which independence we solemnly pledge to each other our mutual cooperation, our lives, our fortunes, and our most sacred honor. Note that the last sentence of the Declaration of Independence says, ``And for the support of this Declaration, with a firm Reliance on the Protection of divine Providence, [we are not supposed to teach those things in our schools today] we mutually pledge to each other our Lives, our Fortunes, and our sacred Honor.'' Therefore, many of the phrases that were used by Jefferson had already appeared in various forms in the public print. Jefferson also borrowed from the phraseology of Virginia's Declaration of Rights written by George Mason, and adopted by the Virginia Constitutional Convention in June 1776. In the opening Section of that document, the following words appear: That all men are by nature equally free and independent and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety. Mason also stated in the Virginia Declaration of Rights, ``That all power is vested in, and consequently derived from the people,'' and that, ``when any government shall be found inadequate or contrary to these purposes, a majority of the community has and indubitable, inalienable, and indefeasible right to reform, alter, or abolish it in such manner as shall be judged most conducive to the public weal.'' Jefferson in the Declaration of Independence, stated that ``All men are created equal'' and that they were ``endowed by their creator with certain unalienable rights, that among these are life, liberty, and the pursuit of happiness--that to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed, that whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it, and to institute new government, laying its foundation on such principles, and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness.'' The last paragraph of the Declaration of Independence states that the representatives of the United States of America, in general Congress, assembled, ``Appealing to the supreme judge of the world for the rectitude of our intention, do, in the name, and by authority of the good people of these colonies, solemnly publish and declare, that these United Colonies are, and of right ought to be, free and independent [[Page S2917]] states; . . .'' Lutz, whose name I mentioned a few times already, makes the following comment: Any document calling on God as a witness would technically be a covenant. American constitutionalism had its roots in the covenant form that was secularized into the compact. One could argue that with God as a witness, the Declaration of Independence is in fact a covenant. The wording is peculiar, however, and the form of an oath is present, but the words stop short of what is normally expected. But the juxtaposition of a near oath and the words about popular sovereignty is an intricate dance around the covenant- compact form. The Declaration of Independence may be a covenant; it is definitely part of a compact. As to the words, ``All men are created equal,'' American political literature was full of statements that the American people considered themselves and the British people equal. Lutz states, with reference to this paragraph: `` `Nature's God' activates the religious grounding; `laws of nature' activate a natural rights theory such as Locke's. The Declaration thus simultaneously appeals to reason and to revelation as the basis for the American right to separate from Britain, create a new and independent people, and be considered equal to any other nation on earth.'' Now, as to the State Constitutions--I am talking about the roots, the roots of this Constitution. This Federal Constitution which we are talking about amending--what about the State Constitutions? Does the Federal Constitution have any roots in the State Constitutions? Throughout the spring of 1776 some of the colonies remained relatively immune to the contagion which prompted others to move toward independence. This prevented the Continental Congress from breaking with Britain. To spread the virus, John Adams and Richard Henry Lee induced the Committee of the Whole to report a resolution which Congress unanimously adopted on May 10. The resolving clause of that resolution recommended to the respective assemblies and conventions of the United Colonies, that, ``where no government sufficient to the exigencies of their affairs had been hitherto established, to adopt such government as shall, in the opinion of the representatives of the people, best conduce to the happiness and safety of their constituents in particular, and America in general.'' State constitutions were of great significance in the development of our Federal Constitution and our Federal system of government. When the Framers met in Philadelphia, they were familiar with the written constitutions of 13 states, and, as a matter of fact, many of those Framers had served in the State legislatures and conventions that debated and approved the State constitutions. Not only were they, the Framers, conversant with the organic laws of the 13 states, but they were also knowledgeable of the colonial experience under colonial government. As was ably stated by William C. Morey, in the September 1893 edition of ``Annals of the American Academy'' of Political and Social Science: The state constitutions were linked in the chain of colonial organic laws and they also formed the basis of the federal constitution. The change had its beginning in the early charters of the English trading companies, which were transformed into the organic laws of the colonies, which, in their turn, were translated into the constitutions of the original states, which contributed to the constitution of the federal union. The Pennsylvania Constitution of 1701 appears to have been the last written form of government that appeared in colonial times. There had been two previous Pennsylvania Constitutions--1683 and 1696--and these, together with the Massachusetts Charter of 1691, constitute the most advanced colonial forms and provide the nearest approach in the colonial period towards the final goal of the national constitution. The original 13 colonies became 13 States during the decade preceding the 1787 Convention, and all but Connecticut and Rhode Island wrote new constitutions in forming their state governments. These new state constitutions would provide important innovations in American constitutionalism, and the Framers at Philadelphia would benefit hugely, not only from the substantive material and form contained in the Constitutions but also from the experience gained under the Administration of the new governments. Let us examine some of these new constitutions, noting particularly those features in the State constitutions which would later appear, even if varying degree, in the Federal Constitution. Thus we shall see the guidance which these early State constitutions provided to the men at Philadelphia in 1787. Let us first examine article I of the Constitution and observe the amazing conformity therein with the equivalent provisions of the various State constitutions written a decade earlier in 1776 and 1777. Take section 1, for example, in which the U.S. Constitution vests all legislative powers in a Congress, consisting of a Senate and House. At least nine of the State constitutions have similar provisions--so you see, our constitutional Framers just did not pick this out of thin air--perhaps varying somewhat in form, which vest the lawmaking powers in a legislature consisting of two separate bodies, the lower of which is generally referred to as an assembly or House of Representatives or House of Delegates--as in the case of West Virginia, which was not in existence at that time, of course--or, as in the case of North Carolina, a House of Commons. The upper body is generally referred to as a Senate, but it varies, likewise, being sometimes referred to as a Council. Section 2 provides that the U.S. House of Representatives shall choose their speaker and other officers and shall have the sole power of impeachment, and at least a half-dozen states provided that the legislative bodies should choose their speaker and other officers. Section 3 provides for a rotation of Senators, two from each state, so that two-thirds of the Senate is always in being. Many of the state senators were to represent districts consisting of several counties or parishes or other political units, and several of the States, including Delaware and New York, provided for a rotation of the members of the upper body so that a supermajority of the Senate were always holdovers. The Great Compromise--which was worked out at the 1787 Convention and agreed to on July 16, 1787, providing that the Senate would represent the States, while the House of Representatives' representation would be based on popula

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PROPOSING AN AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES TO PROTECT THE RIGHTS OF CRIME VICTIMS--Motion to Proceed--Continued
(Senate - April 26, 2000)

Text of this article available as: TXT PDF [Pages S2910-S2930] PROPOSING AN AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES TO PROTECT THE RIGHTS OF CRIME VICTIMS--Motion to Proceed--Continued The PRESIDING OFFICER. The Senator from Connecticut. Mr. DODD. Mr. President, I ask unanimous consent to yield my time to the distinguished senior Senator from West Virginia. The PRESIDING OFFICER. Without objection, it is so ordered. The Senator from West Virginia. Mr. BYRD. Mr. President, I have listened to the comments by my colleagues, those who are proponents of the proposed constitutional amendment before the Senate, and I have listened to the comments of many of my colleagues who have spoken in opposition to the proposed amendment. I compliment both sides on the debate. I think it is an enlightening debate. I will have more to say if the motion to proceed is agreed to. In view of the statements that have been made by several of those who are opposed to the amendment--the Senator from New York (Mr. Schumer), the Senator from Illinois (Mr. Durbin), and the Senator from Connecticut (Mr. Dodd), and others, they have cogently and succinctly expressed my sentiments in opposition to the amendment. I congratulate the Senator from Vermont, Mr. Leahy, on his statements in opposition thereto, as well as the leadership he has demonstrated not only on this proposed constitutional amendment but also in reference to other constitutional amendments before the Senate in recent days and in years past. He is a dedicated Senator in every respect. He certainly is dedicated to this Federal Constitution and very ably defends the Constitution. I do not say that our Constitution is static. John Marshall said it was a Constitution that was meant for the ages. I will go into that more deeply later. At a later date, I will address this particular amendment. But having been a Member of the Congress now going on 48 years, I may not be an expert on the Constitution, but I have become an expert observer of what is happening in this Congress and its predecessor Congresses, and an observer of what is happening by way of the Constitution. I consider myself to be as much an expert in that regard as anybody living because I have been around longer than most people. I have now been a Member of Congress, including both Houses, longer than any other Member of the 535 Members of Congress today. I must say that I am very concerned about the cavalierness which I have observed with respect to the offering of constitutional amendments. There seems to be a cavalier spirit abroad which seems to say that if it is good politically, if it sounds good politically, if it looks good politically, if it will get votes, let's introduce an amendment to the Constitution. I am not saying that with respect to proponents of this amendment, but, in my own judgment, I have seen a lot of that going on. I don't think there is, generally speaking, a clear understanding and appreciation of American constitutionalism. I don't think there is an understanding of where the roots of this Constitution go. I don't think there is an appreciation for the fact that the roots of this Constitution go 1,000 years or more back into antiquity. I do not address this proposed constitutional amendment as something that is necessary, nor do I address this, the Constitution today, as something that just goes back to the year 1787, 212 years ago. The Constitution was written by men who had ample experience, who benefited by their experience as former Governors, as former members of their State legislatures, as former members of the colonial legislatures which preceded the State legislatures, as former Members of the Continental Congress which began in 1794, as Members of the Congress under the Articles of Confederation which became effective in 1781. Some of the members of the convention came from England, from Scotland, from Ireland. Alexander Hamilton was born in the West Indies. These men were very well acquainted with the experiences of the colonialists. They were very much aware of the weaknesses, the flaws in the Articles of Confederation. They understood the State constitutions. Most of the 13 State constitutions were written in the years 1776 and 1777. Many of the men who sat in the Constitutional Convention of 1787 had helped to create those State constitutions of 1776 and 1777 and subsequent thereto. Many of them had experience on the bench. They had experiences in dealing with Great Britain during and prior to the American Revolution. Some of them had fought in Gen. George Washington's polyglot, motley army. These men came with great experience. Franklin was 81 years [[Page S2911]] old. Hamilton was 30. The tall man with the peg leg, Gouverneur Morris, was 35. Madison was 36. They were young in years, but they had tremendous experience back of those years. So the Constitution carries with it the lessons of the experiences of the men who wrote it. They were steeped in the classics. They were steeped in ancient history. They knew about Polybius. They knew how he wrote about mixed government. They knew what Herodotus had to say about mixed government. They knew what other great Greek and Roman authors of history had learned by experience, centuries before the 18th century. They knew about the oppression of tyrannical English monarchs. They knew the importance of the English Constitution, of the Magna Carta, of the English Bill of Rights in 1689. They knew about the English Petition of Right in 1628. All of these were parts of the English Constitution, an unwritten Constitution except for those documents, some of which I have named--the Petition of Right, the Magna Carta, the decisions of English courts, and English statutes. So to stand here and say, in essence, that the Constitution reflects the viewpoints of the men who wrote that Constitution in 1787, or only reflects the views of our American predecessors of 1789, or those who ratified the Constitution in 1790 or in 1791, is only a partial truth. The roots of this Constitution--a copy of which I hold in my hand--go back 1,000 years, long before 1787, long before 1791 when the first 10 amendments which constitute the American Bill of Rights were ratified. That was only a milestone along the way--1787, 1791. These were mere milestones along the way to the real truths, the real values that are in this Constitution, a copy of which I hold in my hand. Those are only milestones along the way, far beyond 1787, far beyond 1776 or 1775 or 1774. Why was that revolution fought? Why did our forbears take stand there on the field of Lexington, on April 19, and shed their blood? Why was that revolution fought? It was fought on behalf of liberty. That is what this Constitution is all about--liberty, the rights of a free people, the liberties of a free people. Liberty, freedom from oppression, freedom from oppressive government, that is why they shed their blood at Lexington and at Bunker Hill and at Kings Mountain and at Valley Forge, down through the decades and the centuries. The blood of Englishmen was spilled centuries earlier in the interests of liberty, in the interests of freedom: Freedom of the press, freedom to speak, freedom to stand on their feet in Parliament and speak out against the King, freedom from the oppression of the heavy hand of government. That is what that Constitution is about. There are those who think that the Constitution sprang from the great minds of those 39 men who signed the Constitution at the Convention, of the 55 who attended the meetings of the Convention--some believe that it sprang from their minds right on the spot. Some believe that it came, like manna from Heaven, fell into their arms. It sprang like Minerva from the brain of Jove. That is what they think. No, I say a miracle happened at Philadelphia, but that was not the miracle. The miracle that occurred at Philadelphia was the miracle that these minds of illustrious men gathered at a given point in time, at Philadelphia, and over a period of 116 days wrote this Constitution. It could not have happened 5 years earlier because they were not ready for it. Their experiences of living under the Articles of Confederation had not yet ripened to a point where they were ready to accept the fact that there had to be a new government, a new constitution written. And it could not have happened 5 years later because the violence that they saw in France, as the guillotine claimed life after life after life, had not yet happened. Some 5 years later, they would have seen that violence of the French Revolution, and they would have recoiled in horror from it. The writing of this Constitution happened at the right time, at the right place, and it was written by the right men. That was the miracle of Philadelphia. Here we are today talking about amending it, this great document, the greatest document of its kind that was ever written in the history of the world. There is nothing to compare it with, by way of man-made documents. Who would attempt to amend the Ten Commandments that were handed down to Moses? Not I. Yet, we, little pygmies on this great stage, before the world, would attempt to pit our talents and our wisdom against the talents and wisdom, the experience and the viewpoints of men such as George Washington, James Madison, Alexander Hamilton, Gouverneur Morris, Benjamin Franklin, John Dickenson, James Wilson, Roger Sherman? In article V of this Constitution, they had the foresight to write the standard. If we want to find the standard for this Constitutional amendment, or any other Constitutional amendment here is the standard in the Constitution itself. The Congress, whenever two-thirds of both Houses shall deem it necessary-- The Congress, whenever two thirds of both Houses shall deem it necessary-- shall propose Amendments. . . . I don't say that the Constitution is static. I don't say it never should be amended. I would vote for a constitutional amendment if I deemed it ``necessary.'' Certainly, I do not see this proposed amendment as necessary, but I will have more to say about that later. I don't say that the Constitution is perfect. I do say that there is no other comparable document in the world that has ever been created by man. And when that Constitution uses the word ``necessary,'' it means ``necessary,'' because no word in that Constitution was just put into that document as a place filler. I do think this is a time that I might speak a little about the constitutionalism behind the American Constitution. I think it might be well for anyone who might be patient enough or interested enough, to hear what I am going to say, because I don't think enough people understand the Constitution. I am sure they don't understand the roots of the Constitution. They don't understand American constitutionalism. It is a unique constitutionalism, the American constitutionalism. I don't think most people understand it. In response to a recent nationwide poll, 91 percent of the respondents agreed with this statement: ``The U.S. Constitution is important to me.'' Mr. President, 91 percent of the respondents agreed to that: ``The U.S. Constitution is important to me.'' Yet only 19 percent of the people polled knew that the Constitution was written in 1787; only 66 percent recognized the first 10 amendments to the Constitution as the Bill of Rights--only 66 percent. Only 58 percent answered correctly that there were three branches of the Federal Government; 17 percent were able to recall that freedom of assembly is guaranteed by the first amendment to the Constitution--17 percent, 17 percent. Yet you see them out here all the time, on the Capitol steps, assembling, petitioning the Government for a redress of what they conceive to be grievances. They know they have that right, but only 17 percent were able to recall that freedom of assembly is guaranteed by the first amendment to the Constitution. Only 7 percent remembered that the Constitution was written at the Constitutional Convention; 85 percent believed that the Constitution stated that ``All men are created equal''--or failed to answer the question; and only 58 percent agreed that the following statement is false: ``The Constitution states that the first language of the U.S. is English.'' The American people love the Constitution. They believe the Constitution is good for them collectively and individually, but they do not understand much about it. And the same can be said with respect to constitutionalism. The same can be said with respect to the Members of Congress; that means both Houses. Not a huge number, I would wager, of the Members of the Congress of both Houses know a great deal about the Constitution. How many of them have ever read it twice? Each of us takes an oath to support and defend the Constitution of the United States every time we are elected or reelected. We stand right up at that desk with our hand on the Bible--at least that is the image people have of us--and we swear in the presence of men and Almighty God to support and defend that Constitution. How many of us have read it twice? How many of us [[Page S2912]] really know what is in that Constitution? And yet we will suggest amendments to it. With 91 percent of the people polled agreeing that the U.S. Constitution is important to themselves, it is a sad commentary that this national poll would reveal that so many of these same Americans are so hugely ignorant of their Constitution and of the American history that is relevant thereto. Let us think together for a little while about this marvelous Constitution, its roots and origins and, in essence, the genesis of American constitutionalism--a subject about which volumes have been written and will continue to be written. It is with temerity that I would venture to expound upon such a grand subject, but I do so with a full awareness of my own limited knowledge and capabilities in this respect, which I freely admit, and for which I just as freely apologize. Nonetheless, let us have at it because the clock is running and time stops for no one, not even a modern day Joshua. Was Gladstone correct in his reputed declaration that the Constitution was ``the most wonderful work ever struck off at a given time by the brain and purpose of man''? Well, hardly. In 1787, the only written constitutions in the world existed in English-speaking America, where there were 13 State constitutions and a constitution for the Confederation of the States, which was agreed upon and ratified in 1781. That was our first National Constitution. Americans were the heirs of a constitutional tradition that was mature by the time of the Convention that met in Philadelphia. Americans had tested that tradition between 1776 and 1787 by writing eleven of the State constitutions and the Articles of Confederation. Later, with the writing of the United States Constitution, they brought to completion the tradition of constitutional design that had begun a century and a- half or two centuries earlier. So when someone stands here and says that this Constitution just represents what those people of 1789 or 1787 or 1791 believed, what they thought, then I say we had better stop, look, and listen. The work of the Framers brought to completion the tradition of constitutional design that had begun a century and a half or two centuries earlier right here in America. Let us move back in point of time and attempt to trace the roots of what is in this great organic document, the Constitution of the United States. Looking back, the search--we are going backward in time now-- takes us first to the Articles of Confederation. A lot of people in this country do not know that the Articles of Confederation ever existed. They have forgotten about them. They never hear about them anymore. And then to the earliest State constitutions, and back of these--going back, back in point of time--were the colonial foundation documents that are essentially constitutional, such as the Pilgrim Code of Law, and then to the proto-constitutions, such as the Fundamental Orders of Connecticut and the Mayflower Compact. As one scholar, Donald S. Lutz, has noted: The political covenants written by English colonists in America lead us to the church covenants written by radical Protestants in the late 1500's and early 1600's, and these in turn lead us back to the Covenant tradition of the Old Testament. It is appropriate, for our purposes here to focus for a short time on those Old Testament covenant traditions because they were familiar not only to the early settlers from Europe--your forebears and mine--but also to the learned men who framed the United States Constitution. In the book of Genesis we are told that the Lord appeared to Abram saying: ``Get thee out of thy country, and from thy kindred, and from thy father's house, unto a land that I will show thee: and I will make of thee a great nation, and I will bless thee, and make thy name great;'' (Genesis 12:1,2) In Chapter 17 of Genesis, verses 4-7, God told Abram: ``As for me, behold, my covenant is with thee, and thou shalt be a father of many nations. Neither shall thy name any more be called Abram, but thy name shall be Abraham; for a father of many nations have I made thee. . . . And I will make nations of thee, and kings shall come out of thee. And I will establish my covenant between me and thee and thy seed after thee in their generations for an everlasting covenant, to be a God unto thee, and to thy seed after thee.'' Again, speaking to Abraham, God said: ``This is my covenant, which ye shall keep, between me and you and thy seed after thee; Every man child among you shall be circumcised.'' (Genesis 17:10) The Abrahamic covenant was confirmed upon subsequent occasions, one of which occurred after Abraham had prepared to offer Isaac, his son, as a burnt offering in obedience to God's command, at which time an angel of the Lord called out from heaven and commanded Abraham, ``Lay not thine hand upon the lad, . . . for now I know that thou fearest God.'' (Genesis 22:12) The Lord then spoke to Abraham saying, ``I will bless thee, and in multiplying, I will multiply thy seed as the stars of the heaven, and as the sand which is upon the sea shore . . . because thou hast obeyed my voice.'' (Genesis 22:17,18) God's covenant with Abraham was later confirmed in an appearance before Isaac, saying: ``Go not down into Egypt; dwell in the land which I shall tell thee of.'' Sojourn (see Gen. 26:3-5) God subsequently confirmed and renewed this covenant with Jacob, as he slept with his head upon stones for his pillows and dreamed of a ladder set upon the earth, and the top of it reached to heaven, with angels of God ascending and descending on it. God spoke, saying: ``I am the Lord God of Abraham, . . . and the God of Isaac: the land whereon thou liest, to thee will I give it, and to thy seed; and thy seed shall be as the dust of the earth . . . and in thee and in thy seed shall all the families of the earth be blessed.'' (Genesis 28:11-14) At Bethel, in the land of Canaan, Jacob built an altar to God, and God appeared unto Jacob, saying: ``Thy name is Jacob; thy name shall not be called any more Jacob, but Israel shall be thy name.'' And God said unto him, ``I am God almighty: be fruitful and multiply; a nation and a company of nations shall be of thee, and kings shall come out of thy loins; and the land which I gave Abraham and Isaac, to thee I will give it, and to thy seed after thee will I give the land.'' (Genesis 35:10,11) The book of Exodus takes up where Genesis leaves off, and we find that the descendants of Jacob had become a nation of slaves in Egypt. After a sojourn that lasted 430 years, God then brought the Israelites out of Egypt that he might bring them as his own prepared people into the Promised Land. Exodus deals with the birth of a nation, and all subsequent Hebrew history looks back to Exodus as the compilation of the acts of God that constituted the Hebrews a nation. Thus far, we have seen the successive covenants entered into between God and Abraham and between God and Isaac and between God and Jacob; we have seen the creation of a nation through what might be described as a federation--there is the first system of federalism--a federation of the 12 tribes of Israel, the 12 sons of Jacob having been recognized as the patriarchs of their respective tribes. Joshua succeeded Moses as leader of the Israelites. Then came the prophets and the judges of Israel, and the turmoils of the divided kingdoms of Judah and Israel. Samuel anointed the first king--Saul, and the kingship of David followed. Thus we see the establishment of a monarchy. God covenanted with David, speaking to him through Nathan the prophet, and God promised to raise up David's seed after his death, according to which a son would be born of David, whose name would be Solomon. Furthermore, Solomon would build a house for the Lord and would receive wisdom and understanding. The Ark of the Covenant of the Lord, and the holy vessels of God, would be brought into the sanctuary that was to be built to the name of the Lord. Now I have spoken of the creation of the Hebrew nation, and not without good reason. The American constitutional tradition derives much of its form and much of its content from the Judeo-Christian tradition as interpreted by the radical Protestant sects to which belonged so many of the original European settlers in British North America. Donald S. Lutz, in his work entitled ``The Origins of American Constitutionalism'', says: ``The tribes of Israel [[Page S2913]] shared a covenant that made them a nation. American federalism originated at least in part in the dissenting Protestants' familiarity with the Bible''. The early Calvinist settlers who came to this country from the Old World brought with them a familiarity with the Old Testament covenants that made them especially apt in the formation of colonial documents and state constitutions. Winton U. Solberg tells us that in 17th-century colonial thought, divine law, a fusion of the law of nature in the Old and New Testaments, usually stood as fundamental law. The Mayflower Compact--we have all heard of that--the Mayflower Compact exemplified the Doctrine of Covenant or Contract. Puritanism exalted the biblical component and drew on certain scriptural passages for a theological outlook. Called the Covenant or Federal Theology, this was a theory of contract regarding man's relations with God and the nature of church and state. Man was deemed an impotent sinner until he received God's grace, and then he became the material out of which sacred and civil communities were built. Another factor that contributed to the knowledge of the colonists and to their experience in the formation of local governments, was the typical charter from the English Crown. These charters generally required that the colonists pledge their loyalty to the Crown, but left up to them, the colonists, the formation of local governments as long as the laws which the colonists established comported with, and were not repugnant to, the laws of England. Boards of Directors in England nominally controlled the colonies. The fact that the colonies were operating thousands of miles away from the British Isles, together with the fact that the British Government was so involved in a bloody civil war, made it possible for the American colonies to operate and evolve with much greater freedom and latitude than would otherwise have been the case. The experiences gained by the colonists in writing documents that formed the basis for local governments, and the benefits that flowed from experience in the administration of those colonial governments, contributed greatly to the reservoir of understanding of politics and constitutional principles developed by the Framers. Although the Constitution makes no specific mention of federalism, the federal system of 1787 was not something new to the Framers. Compacts had long been used as a device to knit settlements together. For example, the Fundamental Orders of Connecticut, 1639, established a Common government for the towns of Hartford, Windsor, and Wethersfield, while each town government remained intact. In 1642, the towns of Providence, Pocasset, Portsmouth, and Warwick in Rhode Island devised a compact known as the Organization of the Government of Rhode Island, a federation which became a united colony under the 1663 Rhode Island Charter. The New England Confederation of 1643 was a compact for uniting the colonies of Massachusetts, Connecticut, Plymouth, and New Haven, each of which was comprised of several towns that maintained their respective governments intact. Thus, the Framers were guided by a long experience with federalism or confederalism, including the Articles of Confederation--an experience that was helpful in devising the new national federal system. Lutz says that the states, in writing new constitutions in the 1770s, ``drew heavily upon their respective colonial experience and institutions. In American constitutionalism, there was more continuity and from an earlier date than is generally credited.'' That is why I am here today speaking on this subject. Let it be heard. Let it be known that the roots of this Constitution go farther back than 1787, farther back than its ratification in 1791--farther back. They were writing based on historical experiences that went back 1,000 years, before the Magna Carta, back to the Anglo-Saxons, back another 2,000 years, back another 1,500 years, back to the federalism of the Jewish tribes of Israel and Judah. Wake up. This Constitution wasn't just born yesterday or in 1787. Let us go back to history. Let us study the history of American constitutionalism, its roots, how men suffered under oppressive governments. Then we will have a little better understanding of this Constitution. No, the Constitution is not static. History is not static. The journey of mankind over the centuries is not static. We can always learn from history. To what extent were the Framers influenced by political theorists and republican spokesmen from Britain and the Continent? According to Solberg, republican spokesmen in England constituted an important link on the road to the realization of a republic in the United States. I hear Senators stand on this floor and say that we live in a democracy. This is not a democracy. This is a republic. You don't have to believe Robert C. Byrd. Go to Madison, go to ``The Federalist Papers,'' Federalist Paper No. 10 or Federalist Paper No. 14--those of you who are listening--and you will find the definition of a democracy and the definition of a republic. You will find the difference between the two. John Milton, whose literary accomplishments and Puritanism assured him of notice in the colonies, was significant for the views expressed in his political writings. He supported the sovereign power of the people, argued for freedom of publications, and justified the death penalty for tyrants. English political thinkers who influenced American constitutionalism and who exerted an important influence in the colonies were Bolingbroke, Addison, Pope, Hobbes, Blackstone, and Sir Edward Coke. And there were others. John Locke may be said to have symbolized the dominant political tradition in America down to and in the convention of 1787. Locke equated property with ``life, liberty, and estate'' and was the crucial right on which man's development depends. Nature, Locke thought, creates rights. Society and government are only auxiliaries which arise when men consent to create them in order to preserve property in the larger sense, and a community calls government into being to secure additional protection for existing rights. As representatives of the people, the legislature is supreme but is itself controlled by the fundamental law. Locke limits government by separating the legislative and administrative functions of government to the end that power may not be monopolized. That is assured by our Constitution also. The people possess the ultimate right of resisting a government which abuses its delegated powers. Such a violation of the contract justified the community in resuming authority. David Hume dealt with the problem of faction in a large republic, and promoted the device of fragmenting election districts. Madison, when faced with the same problem in preparing for the federal convention, supported the idea of an extended republic--drawing upon Hume's solution. Blackstone's view was that Parliament was supreme in the British system and that the locus of sovereignty was in the lawmaking body. His absolute doctrine was summed up in the aphorism that ``Parliament can do anything except make a man a woman or a woman a man.'' His ``Commentaries on the Laws of England'' was the most complete survey of the English legal system ever composed by a single hand. The commentaries occupied a crucial role in legal education, and many of Blackstone's ideas were uppermost on American soil from 1776 to 1787, with vital significance for constitutional development both in the states and in Philadelphia. Although delegates to the convention acknowledged Blackstone as the preeminent authority on English law, they, nevertheless, succeeded in separating themselves from some of his other views. James Harrington's ``Oceana'' presented a republican constitution for England in the guise of a utopia. He concluded that since power does follow property, especially landed property, the stability of society depends on political representation reflecting the actual ownership of property. The distinguishing feature of Harrington's commonwealth was ``an empire of laws and not of men.'' Harrington proposed an elective ballot, rotation in office, indirect election, and a two-chamber legislature. This goes back a long way, doesn't it? [[Page S2914]] Harrington proposed legislative bicameralism as a precaution against the dangers of extreme democracy, even in a commonwealth in which property ownership was widespread. He argued that a small and conservative Senate should be able to initiate and discuss but not decide measures, whereas a large and popular house should resolve for or against these without discussion. These were novel but significant ideas that became influential in America, in this country, before 1787. John Adams was an ardent disciple of Harrington's views. James Harrington was the modern advocate of mixed government most influential in America. That is what ours is. The government of his ``Oceana'' consisted of a Senate which represented the aristocracy; a huge assembly elected by the common people, thus representing a democracy; and an executive, representing the monarchical element, to provide a balancing of power. Harrington's respect for mixed government was shared by Algernon Sidney, who declared: ``There never was a good government in the world that did not consist of the three simple species of monarchy, aristocracy, and democracy.'' The mixed government theorists saw the British king, the House of Lords, and the House of Commons as an example of a successful mixed government. The notion of mixed government goes all the way back to Herodotus, and who knows how far beyond. It was a notion that had been around for several centuries. Herodotus in his writings concerning Persia had expounded on the idea, but it had lost popularity until it was revived by the historian Polybius who lived between the years circa 205-125 B.C. It was a governmental form that pitted the organs of government representing monarchy, aristocracy, and democracy against each other to achieve balance and, thus, stability. The practice of mixed government collapsed along with the Roman Republic, but the doctrine was revived in 17th century England--now we are getting closer--from which it passed to the New World. Those who wrote the Constitution weren't just writing based on the experiences of their time. Let us turn now to a consideration of the renowned French philosopher and writer, Montesquieu. Montesquieu had a considerable impact upon the political thinking of our constitutional Framers. They were conversant with the political theory and philosophy of Montesquieu, who was born 1689--a hundred years before our Republic was formed--and died in 1755. He died just 32 years before our constitutional forebears met in Philadelphia. Americans of the Revolutionary period were well acquainted with the philosophical and political writings of Montesquieu in reference to the separation of powers, and John Adams was particularly strong in supporting the doctrine of separation of powers in a mixed government. Montesquieu advocated the principle of separation of powers. He possessed a belief, which was faulty, that a huge territory did not lend itself to a large republic. He believed that government in a vast expanse of territory would require force and this would lead to tyranny. He believed that the judicial, executive, and legislative powers should be separated. If they were kept separated, the result would be political freedom, but if these various powers were concentrated in one man, as in his native France, then the result would be tyranny. Montesquieu visited the more important and larger political divisions of Europe and spent a considerable time in England. His extensive English connections had a strong influence on the development of his political philosophy. We are acquainted with his ``Spirit of the Laws'' and with his ``Persian Letters,'' but perhaps we are not so familiar with the fact that he also wrote an analysis of the history of the Romans and the Roman state. This essay, titled ``Considerations on the Causes of the Greatness of the Romans and their Decline,'' was produced in 1734. Considering the fact that Montesquieu was so deeply impressed with the ancient Romans and their system of government, and in further consideration of his influence upon the thinking of the Framers and upon the thinking of educated Americans generally during the period of the American Revolution, let us consider the Roman system as it was seen by Polybius, the Greek historian, who lived in Rome from 168 B.C., following the battle of Pydna, until after 150 B.C., at a time when the Roman Republic was at a pinnacle of majesty that excited his admiration and comment. Years later, Adams recalled that the writings of Polybius ``Were in the contemplation of those who framed the American Constitution.'' Polybius provided the most detailed analysis of mixed government theory. He agreed that the best constitution assigned approximately equal amounts of power to the three orders of society and explained that only a mixed government could circumvent the cycle of discord which was the inevitable product of the simple forms. Polybius saw the cycle as beginning when primitive man, suffering from violence, privation, and fear, consented to be ruled by a strong and brave leader. When the son was chosen to succeed this leader, in the expectation that the son's lineage would lead him to emulate his father, the son, having been accustomed to a special status from birth, was lacking in a sense of duty to the public and, after acquiring power, sought to distinguish himself from the rest of the people. Thus, monarchy deteriorated into tyranny. The tyranny then would be overturned by the noblest of aristocrats who were willing to risk their lives. The people naturally chose them to succeed the king as ruler, the result being ``ruled by the best,''--an aristocracy. Soon, however, aristocracy deteriorated into oligarchy because, in time, the aristocrats' children placed their own welfare above the welfare of the people. A democracy was created when the oppressed people rebelled against the oligarchy. But in a democracy, the wealthy corrupted the people with bribes and created faction in order to raise themselves above the common level in the search for status and privilege and additional wealth. Violence then resulted and ochlocracy (mob rule) came into being. As the chaos mounted to epic proportions, the people's sentiment grew in the direction of a dictatorship, and monarchy reappeared. Polybius believed that this cycle would repeat itself over and over again indefinitely until the eyes of the people opened to the wisdom of balancing the power of the three orders. Polybius considered the Roman Republic to be the most outstanding example of mixed government. Polybius viewed the Roman Constitution as having three elements: the executive, the Senate, and the people; with their respective shares of power in the state regulated by a scrupulous regard to equality and equilibrium. Let us examine this separation of powers in the Roman Republic as explained by Polybius. The consuls--representing the executive--were the supreme masters of the administration of the government when remaining in Rome. All of the other magistrates, except the tribunes, were under the consuls and took their orders from the consuls. The consuls brought matters before the Senate that required its deliberation, and they saw to the execution of the Senate's decrees. In matters requiring the authorization of the people, a consul summoned the popular meetings, presented the proposals for their decision, and carried out the decrees of the majority. The majority rules. In matters of war, the consuls imposed such levies upon manpower as the consuls deemed appropriate, and made up the roll for soldiers and selected those who were suitable. Consuls had absolute power to inflict punishment upon all who were under their command, and had all but absolute power in the conduct of military campaigns. As to the Senate, it had complete control over the treasury, and it regulated receipts and disbursements alike. The quaestors (or secretaries of the treasury) could not issue any public money to the various departments of the state without a decree of the Senate. The Senate also controlled the money for the repair and construction of public works and public buildings throughout Italy, and this money could not be obtained by the censors, who oversaw the contracts for public works and public buildings, except by the grant of the Senate. [[Page S2915]] The Senate also had jurisdiction over all crimes in Italy requiring a public investigation, such as treason, conspiracy, poisoning, or willful murder, as well as controversies between and among allied states. Receptions for ambassadors, and matters affecting foreign states, were the business of the Senate. What part of the Constitution was left to the people? The people participated in the ratification of treaties and alliances, and decided questions of war and peace. The people passed and repealed laws-- subject to the Senate's veto--and bestowed public offices on the deserving, which, according to Polybius, ``are the most honorable rewards for virtue.'' Polybius, having described the separation of powers under the Roman Constitution, how did the three parts of state check and balance each other? Polybius explained the checks and balances of the Roman Constitution, as he had observed them first hand. Remember, he was living in Rome at the time. What were the checks upon the consul, the executive? The consul-- whose power over the administration of the government when in the city, and over the military when in the field, appeared absolute--still had need of the support of the Senate and the people. The consul needed supplies for his legions, but without a decree of the Senate, his soldiers could be supplied with neither corn nor clothes nor pay. Moreover, all of his plans would be futile if the Senate shrank from danger, or if the Senate opposed his plans or sought to hamper them. Therefore, whether the consul could bring any undertaking to a successful conclusion depended upon the Senate, which had the absolute power, at the end of the consul's one-year term, to replace him with another consul or to extend his command or his tenure. The consuls were also obliged to court the favor of the people, so here is the check of the people against the consuls, for it was the people who would ratify, or refuse to ratify, the terms of peace. But most of all, the consuls, when laying down their office at the conclusion of their one-year term, would have to give an accounting of their administration, both to the Senate and to the people. It was necessary, therefore, that the consuls maintain the good will of both the Senate and the people. What were the checks against the Senate? The Senate was obliged to take the multitude into account and respect the wishes of the people, for in matters directly affecting the Senators--for instance, in the case of a law diminishing the Senate's traditional authority, or depriving Senators of certain dignities, or even actually reducing the property of Senators--in such cases, the people had the power to pass or reject the laws of the Assembly. In addition, according to Polybius, if the tribunes imposed their veto, the Senate would not only be unable to pass a decree, but could not even hold a meeting. And because the tribunes must always have a regard for the people's wishes, the Senate could not neglect the feelings of the multitude. But as a counter balance, what check was there against the people? We have seen certain checks against the consul; we have described some of the checks against the Senate. What about the people? According to Polybius, the people were far from being independent of the Senate, and were bound to take its wishes into account, both collectively and individually. For example, contracts were given out in all parts of Italy by the censors for the repair and construction of public works and public buildings. Then there was the matter of the collection of revenues from rivers and harbors and mines and land--everything, in a word, that came under the control of the Roman government. In all of these things, the people were engaged, either as contractors or as pledging their property as security for the contractors, or in selling supplies or making loans to the contractors, or as engaging in the work and in the employ of the contractors. Over all of these transactions, says Polybius, the Senate ``has complete control.'' For example, it could extend the time on a contract and thus assist the contractors; or, in the case of unforeseen accident, it could relieve the contractors of a portion of their obligation, or it could even release them altogether if they were absolutely unable to fulfill the contract. Thus, there were many ways in which the Senate could inflict great hardships upon the contractors, or, on the other hand, grant great indulgences to the contractors. But in every case, the appeal was to the Senate. Moreover, the judges were selected from the Senate, at the time of Polybius, for the majority of trials in which the charges were heavy. Consequently, the people were cautious about resisting or actively opposing the will of the Senate, because they were uncertain as to when they might need the Senate's aid. For a similar reason, the people did not rashly resist the will of the consuls because one and all might, in one way or another, become subject to the absolute power of the consuls at some point in time. Polybius had spoken of a regular cycle of constitutional revolution, and the natural order in which constitutions change, are transformed, and then return again to their original stage. Plato on the same line, had arranged six classifications in pairs: kingship would degenerate into tyranny; aristocracy would degenerate into oligarchy; and democracy would degenerate into violence and mob rule--after which, the cycle would begin all over again. Aristotle had had a similar classification. According to Polybius, Lycurgus--the Spartan lawgiver of, circa, the 9th century B.C.--was fully aware of these changes, and accordingly combined together all of the excellences and distinctive features of the best constitutions, in order that no part should become unduly predominant and be perverted into its kindred vice; and that, each power being checked by the others, no one part should turn the scale or decisively overbalance the others; but that, by being accurately adjusted and in exact equilibrium, ``the whole might remain long steady like a ship sailing close to the wind.'' Polybius summed it up in this way: When any one of the three classes becomes puffed up, and manifests an inclination to be contentious and unduly encroaching, the mutual interdependency of all the three, and the possibility of the pretensions of any one being checked and thwarted by the others, must plainly check this tendency. And so the proper equilibrium is maintained by the impulsiveness of the one part being checked by its fear of the other. Polybius' account may not have been an exact representation of the true state of the Roman system, but he was on the scene, and he was writing to tell us what he saw with his own eyes, not through the eyes of someone else. What better witness could we have? Mr. President, before the Convention was assembled, Madison studied the histories of all these ancient people--the different kinds of governments--aristocracy, oligarchy, monarchy, democracy, and republic. He prepared himself for this Convention. And there were others in that Convention who were very well prepared also--James Wilson, Dr. William Samuel Johnson, and others. The theory of a mixed constitution had had its great measure of success in the Roman Republic. It is not surprising then, that the Founding Fathers of the United States should have been familiar with the works of Polybius, or that Montesquieu should have been influenced by the checks and balances and separation of powers in the Roman constitutional system, a clear and central element of which was the control over the purse, vested solely in the Senate in the heyday of the Republic. Were the Framers influenced by the classics? Every schoolchild and student in the universities learned how to read and write Greek and Latin. Those were required subjects. The founders were steeped in the classics, and both the Federalists and the Anti-federalists resorted to ancient history and classical writings in their disquisitions. Not only were classical models invoked; the founders also had their classical ``antimodels''--those individuals and government forms of antiquity whose vices and faults they desired to avoid. Classical philosophers and the theory of natural law were much discussed during the period prior to and immediately following the American Revolution. It was a time of great political ferment, and thousands of circulars, [[Page S2916]] pamphlets, and newspaper columns displayed the erudition of Americans who delighted in classical allusions. Our forbears were erudite. They circulated their pamphlets and their newspaper columns. They talked about these things. Who today studies the classics? Who today studies the different models and forms of government? Who today writes about them? The 18th-century educational system provided a rich classical conditioning for the founders and immersed them with an indispensable training. They were familiar with Ovid, Homer, Horace, and Virgil, and they had experienced solid encounters with Tacitus, Thucydides, Livius, Plutarch, Suetonius, Eutropius, Xenophon, Florus, and Cornelius Nepos, as well as Caesar's Gallic Wars. They were undoubtedly influenced by a thorough knowledge of the vices of Roman emperors, the logic of orations by Cicero and Demosthenes, and the wisdom and virtue of the scriptures. They freely used classical symbols, pseudonyms, and allusions to communicate through pamphlets and the press. To persuade their readers they frequently wrapped themselves and their policies in such venerable classical pseudonyms as ``Aristides,'' ``Tully'', ``Cicero'', ``Horatius'', and ``Camillus.'' The Federalist essays, 85 of them in number were signed by ``Publius.'' Some of the Anti-federalists dubbed themselves ``Cato,'' while others called themselves ``Cincinnatus'' or ``A Plebeian.'' The appropriation of classical pseudonyms was sometimes used in private discourse for secret correspondence. George Washington's favorite play was Joseph Addison's ``Cato'' in which Cato committed suicide rather than submit to Caesar's occupation of Utica. In the words of Carl J. Richard, in his book ``The Founders and the Classics'' It is my contention that the classics exerted a formative influence upon the founders, both directly and through the mediation of Whig and American perspectives. The classics supplied mixed government theory, the principal basis for the U.S. Constitution. The classics contributed a great deal to the founders' conception of human nature, their understanding of the nature and purpose of virtue, and their appreciation of society's essential role in its production. The classics offered the founders companionship and solace, emotional resources necessary for coping with the deaths and disasters so common in their era. The classics provided the founders with a sense of identity and purpose, assuring them that their exertions were part of a grand universal scheme. The struggles of the Revolutionary and Constitutional periods gave the founders a sense of kinship with the ancients, a thrill of excitement at the opportunity to match their classical heroes' struggles against tyranny and their sage construction of durable republics. In short, the classics supplied a large portion of the founders' intellectual tools. Now, what about the Declaration of Independence? It was on June 7, 1776, that Richard Henry Lee introduced the ``Resolve'' clause, which was as follows: Resolved, that these United States Colonies are and of right ought to be free and independent states, that they are absolved from all allegiance to the British Crown, and that all political connection between them and the state of Great Britain is, and ought to be, totally dissolved. That it is expedient forthwith to take the most effectual measures for forming foreign alliances. That a plan of confederation be prepared and transmitted to the respective colonies for their consideration and approbation. Following the introduction of Lee's resolution, postponement of the question of independence was delayed until July 1. Nevertheless, on June 11, Congress appointed a committee made up of Jefferson, John Adams, Franklin, Roger Sherman, R.R. Livingston, to prepare a declaration. The committee reported on June 28, and, at last, on July 2, Congress decided for independence without a dissenting vote. The delegates considered the text of the declaration for two additional days, and adopted changes on July 4 and ordered the document printed. News that New York had approved on July 9 (the New York Delegates, having been prevented by instructions from assenting, had theretofore refrained from balloting) reached Philadelphia on July 15. Four days later, Congress ordered the statement engrossed. On August 2, signatures were affixed, although all ``signers'' were not then present. Inasmuch as the Declaration was an act of treason--for which any one of those signers or all collectively could have been hanged-- the names subscribed were initially kept secret by Congress. The text itself was widely publicized. Those forebearers of ours who had the courage and the fortitude and the backbone to write the Declaration of Independence, committed an act of treason for which their properties could have been confiscated, their rights could have been forfeited, and their lives could have been taken from them. That is what we are talking about in this Constitution. Men who not only understood life in their times, but also understood the cost of liberty, so they pledged their lives, their fortunes, their sacred honor. Those were not empty words. Would we have done so? Much of the Declaration of Independence was derived directly from the early state constitutions. The things have roots. They didn't come up like the prophet's gourd overnight. The Declaration contained twenty- eight charges against the English king justifying the break with Britain. At least 24 of the charges had also appeared in state constitutions. New Hampshire, South Carolina, and Virginia, in that order, adopted the first constitutions of independent states, and these three state constitutions contained 24 of the 28 charges set forth in the Declaration. Lists of grievances against George III had appeared in many of the newspapers, and as far back as May 31, 1775, the Mecklenburg (North Carolina) Resolves contained the following: Resolved: that we do hereby declare ourselves a free and independent people; are and of right ought to be a sovereign and self-governing association, under the control of no power, other than that of our God and the general government of the Congress: to the maintenance of which independence we solemnly pledge to each other our mutual cooperation, our lives, our fortunes, and our most sacred honor. Note that the last sentence of the Declaration of Independence says, ``And for the support of this Declaration, with a firm Reliance on the Protection of divine Providence, [we are not supposed to teach those things in our schools today] we mutually pledge to each other our Lives, our Fortunes, and our sacred Honor.'' Therefore, many of the phrases that were used by Jefferson had already appeared in various forms in the public print. Jefferson also borrowed from the phraseology of Virginia's Declaration of Rights written by George Mason, and adopted by the Virginia Constitutional Convention in June 1776. In the opening Section of that document, the following words appear: That all men are by nature equally free and independent and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety. Mason also stated in the Virginia Declaration of Rights, ``That all power is vested in, and consequently derived from the people,'' and that, ``when any government shall be found inadequate or contrary to these purposes, a majority of the community has and indubitable, inalienable, and indefeasible right to reform, alter, or abolish it in such manner as shall be judged most conducive to the public weal.'' Jefferson in the Declaration of Independence, stated that ``All men are created equal'' and that they were ``endowed by their creator with certain unalienable rights, that among these are life, liberty, and the pursuit of happiness--that to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed, that whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it, and to institute new government, laying its foundation on such principles, and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness.'' The last paragraph of the Declaration of Independence states that the representatives of the United States of America, in general Congress, assembled, ``Appealing to the supreme judge of the world for the rectitude of our intention, do, in the name, and by authority of the good people of these colonies, solemnly publish and declare, that these United Colonies are, and of right ought to be, free and independent [[Page S2917]] states; . . .'' Lutz, whose name I mentioned a few times already, makes the following comment: Any document calling on God as a witness would technically be a covenant. American constitutionalism had its roots in the covenant form that was secularized into the compact. One could argue that with God as a witness, the Declaration of Independence is in fact a covenant. The wording is peculiar, however, and the form of an oath is present, but the words stop short of what is normally expected. But the juxtaposition of a near oath and the words about popular sovereignty is an intricate dance around the covenant- compact form. The Declaration of Independence may be a covenant; it is definitely part of a compact. As to the words, ``All men are created equal,'' American political literature was full of statements that the American people considered themselves and the British people equal. Lutz states, with reference to this paragraph: `` `Nature's God' activates the religious grounding; `laws of nature' activate a natural rights theory such as Locke's. The Declaration thus simultaneously appeals to reason and to revelation as the basis for the American right to separate from Britain, create a new and independent people, and be considered equal to any other nation on earth.'' Now, as to the State Constitutions--I am talking about the roots, the roots of this Constitution. This Federal Constitution which we are talking about amending--what about the State Constitutions? Does the Federal Constitution have any roots in the State Constitutions? Throughout the spring of 1776 some of the colonies remained relatively immune to the contagion which prompted others to move toward independence. This prevented the Continental Congress from breaking with Britain. To spread the virus, John Adams and Richard Henry Lee induced the Committee of the Whole to report a resolution which Congress unanimously adopted on May 10. The resolving clause of that resolution recommended to the respective assemblies and conventions of the United Colonies, that, ``where no government sufficient to the exigencies of their affairs had been hitherto established, to adopt such government as shall, in the opinion of the representatives of the people, best conduce to the happiness and safety of their constituents in particular, and America in general.'' State constitutions were of great significance in the development of our Federal Constitution and our Federal system of government. When the Framers met in Philadelphia, they were familiar with the written constitutions of 13 states, and, as a matter of fact, many of those Framers had served in the State legislatures and conventions that debated and approved the State constitutions. Not only were they, the Framers, conversant with the organic laws of the 13 states, but they were also knowledgeable of the colonial experience under colonial government. As was ably stated by William C. Morey, in the September 1893 edition of ``Annals of the American Academy'' of Political and Social Science: The state constitutions were linked in the chain of colonial organic laws and they also formed the basis of the federal constitution. The change had its beginning in the early charters of the English trading companies, which were transformed into the organic laws of the colonies, which, in their turn, were translated into the constitutions of the original states, which contributed to the constitution of the federal union. The Pennsylvania Constitution of 1701 appears to have been the last written form of government that appeared in colonial times. There had been two previous Pennsylvania Constitutions--1683 and 1696--and these, together with the Massachusetts Charter of 1691, constitute the most advanced colonial forms and provide the nearest approach in the colonial period towards the final goal of the national constitution. The original 13 colonies became 13 States during the decade preceding the 1787 Convention, and all but Connecticut and Rhode Island wrote new constitutions in forming their state governments. These new state constitutions would provide important innovations in American constitutionalism, and the Framers at Philadelphia would benefit hugely, not only from the substantive material and form contained in the Constitutions but also from the experience gained under the Administration of the new governments. Let us examine some of these new constitutions, noting particularly those features in the State constitutions which would later appear, even if varying degree, in the Federal Constitution. Thus we shall see the guidance which these early State constitutions provided to the men at Philadelphia in 1787. Let us first examine article I of the Constitution and observe the amazing conformity therein with the equivalent provisions of the various State constitutions written a decade earlier in 1776 and 1777. Take section 1, for example, in which the U.S. Constitution vests all legislative powers in a Congress, consisting of a Senate and House. At least nine of the State constitutions have similar provisions--so you see, our constitutional Framers just did not pick this out of thin air--perhaps varying somewhat in form, which vest the lawmaking powers in a legislature consisting of two separate bodies, the lower of which is generally referred to as an assembly or House of Representatives or House of Delegates--as in the case of West Virginia, which was not in existence at that time, of course--or, as in the case of North Carolina, a House of Commons. The upper body is generally referred to as a Senate, but it varies, likewise, being sometimes referred to as a Council. Section 2 provides that the U.S. House of Representatives shall choose their speaker and other officers and shall have the sole power of impeachment, and at least a half-dozen states provided that the legislative bodies should choose their speaker and other officers. Section 3 provides for a rotation of Senators, two from each state, so that two-thirds of the Senate is always in being. Many of the state senators were to represent districts consisting of several counties or parishes or other political units, and several of the States, including Delaware and New York, provided for a rotation of the members of the upper body so that a supermajority of the Senate were always holdovers. The Great Compromise--which was worked out at the 1787 Convention and agreed to on July 16, 1787, providing that the Senate would represent the States, while the House of Representatives' representation would be based