Some Fundamental Principles of Our Constitution
I am grateful to Mr. Carver for all he has said about me. With that I shall begin. I apologize for the length of this paper. It will take a little longer to read than I had hoped, but I did not see how I could cut it down any more and get over the points I wished to make, and if you will be as kind as you can, after this delicious dinner, and stay awake as long as you can, we shall get through it, if we can.
I am greatly honored in being asked to say something this evening to this 67th Annual Congress of this great patriotic organization-the National Society of the Sons of the American Revolution. There is need for such an organization these days to help keep alive the fires on the sacred altar of human liberty.
First, allow me to congratulate you Sons of the American Revolution upon your distinguished forefathers. Men they were of surpassing patriotism, outstanding abilities, profound wisdom, greatest courage, physical and moral, and of loyalty and devotion of the very highest quality.
You are legatees of this most illustrious heritage. I appeal to you to honor and protect that heritage, if necessary to the final sacrifice your fathers offered, even life itself. This you owe to them, to us, and to the generations of free men yet unborn.
I come to you with the dictum of Curran, that “the price of liberty is eternal vigilance.” Your fathers gave us liberty. Our vigilance must preserve it.
The service of your fathers brought us independence. But their service in the field was not their total service. They also served in the establishment of this nation and its Government. You may know an about it already. But it is of this service in the establishment of our Government that I wish to remind you tonight.
The theme of our discussion tonight is this simple and basic principle that underlies our Federal Government:
Neither that Government nor any of its departments or agencies, can, without usurpation, exercise any power whatsoever that we the sovereign people have not delegated to them in the Constitution, and its amendments, plus the BiII of Rights. Tonight we shall try to reach some foundation principles. We shall start at the roots.
There is a certain historical world relationship involved in these foundation principles. Our Government is the legitimate offspring of centuries of world achievement and development, with its deep and ofttimes tragic lessons. Our constitutional system preserved the best of all that had gone before and had cast aside, as Franklin said, seeds of earlier Republics that led to their dissolution, the most important and fertile of which seeds was that which recognized the sovereignty as placed elsewhere than in the people themselves.
The fructifying genius of our Constitution and the Government set up under it was the full and complete sovereignty of the people, with all of the incidents and attributes attaching thereto. This principle controlled the Constitutional Convention in its work, and was never lost sight of. It was expressly stated in the Constitution itself, the Preamble providing : “We the People of the United States … [for the implementing of the purposes named] do ordain and establish this Constitution for the United States of America.”
This talk tonight is aimed at showing in outline some of the means taken by the Framers so to draw the Constitution as to accomplish this great and divinely inspired end-the retention of sovereignty in the people, sovereignty beyond the reach of any governmental agency and to be surrendered voluntarily or modified only by the sovereign people themselves, as provided for by them in the Constitution itself.
Basic Sovereignty and Systems
Behind the establishment, operation, and maintenance of every real human government is a sovereign, the possessor of an legislative, executive, and judicial powers and authorities, and an matters incident thereto. That sovereign may be an individual, a group, or, as with us, the people themselves.
My first point is where the sovereignty rests in the United States.
In the world which we call the civilized world, there are now and were in 1776, two great fundamental legal systems-the Civil Law system, of which Continental Europe, with certain of their colonial possessions, and Japan, are representatives; and the Common Law system in force in Britain, with certain of her colonial possessions )former and present( and in America, as we have developed its system. The Latin American countries are, in certain ways, a combination of both ….
We summarize in a sentence the basic principle of the Roman or Civil Law:
The sovereign power rested in the head of the state, who granted to the people, his subjects, the rights he decided they should have, reserving an other rights in himself, as likewise the right to extend, alter, add to, or withdraw the rights already granted.
In our discussion tonight, we come now to the Common Law system of government, particularly as developed in the United States after we had gained our independence. It is completely polar to the Roman or Civil Law system as to legal origin and the sovereignty behind it ….
In the last several years, foreign-born, Roman Law trained immigrants, knowing only the lex regia system, have acquired, in our national administration, places of considerable influence and power. In recent years the yen for a world-state in which we shall play a dominant part, has seemingly innoculated even some of our highest officials.
Recent Multipartite Treaties
In furtherance of the general plan in contemplation of a world-state, we have made treaties of alliance containing obligations that infringed upon our sovereignty. We have made multipartite treaties – the League of Nations (which, when it was understood, the people rejected), the United Nations Charter, to which the Senate gave its advice and consent just one month and two days after its signature, the people having no time to examine its merits before it became operative. All of these surrendered some of our sovereignty. Not infrequently they involve commitments for the Chief Executive which he cannot fulfil, as also for the nation which the Chief Executive cannot guarantee shall be carried out.
These circumstances have brought into high places an expressed feeling that our treaty powers are uncontrolled, even unlimited; that we may by treaty do what our Chief Executive may wish, with the Senate’s prescribed approval.
Some Modern Views
It has been affirmed that:
” … the investment of the Federal government with the powers of external sovereignty did not depend upon the affirmative grants of the Constitution. The powers to declare and wage war, to conclude peace, to make treaties, to maintain diplomatic relations with other sovereignties, if they had never been mentioned in the Constitution, would have vested in the Federal government as necessary concomitants of nationality.” (United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 318.)
This is surely a dangerous doctrine.
If this learned jurist was speaking of the situation as relating to us, the sovereign people, he might justify in proper language the principle he announces. But if he is talking of governmental instrumentalities that we the sovereign people set up with certain delegated powers, then if he will examine the records of the Constitutional Convention, he might be forced to conclude that the Framers, who fought long and hard over questions involved in this statement, would think he was talking without thought or reason. It is one thing to assert that a certain thing is an attribute of sovereignty, and a wholly different thing to assert it as an attribute of government in a government of delegated power. Without such a delegation, the power cannot be exercised by an undelegated. agency.
But the matter seems to have gone far beyond this general statement. One now holding high government office is quoted as declaring:
” … congressional laws are invalid if they do not conform to the Constitution, whereas treaty laws can override the Constitution. Treaties, for example, can take powers away from the Congress and give them to the President; they can take powers from the States and give them to the Federal Government or to some international body and they can cut across the rights given the people by the Constitutional Bill of Rights.” (Frank E. Holman, Story of the “Bricker” Amendment [New York, Committee for Constitutional Government, Inc., 1954], pp. 14-15.)
The Bill of Rights did not give anything to the people; the people reserved these rights to themselves. This treaty-law doctrine is power-thirst gone mad.
Of course, if this were the law, or if it were to become the law, which pray God may never be, then the sovereignty would be shifted from us, the people, and would be lodged in the Chief Executive and a two-thirds majority of a quorum present in the Senate. We would cease to be a Republic and become a lex regia, virtual despotism, for there would be in the Chief Executive and the Senate unlimited sovereign power.
Views of Framers
Furthermore, this heresy runs counter to views of the ablest of the Framers themselves.
It has been said we cannot have a world-state without a surrender of some of our sovereignty. This is probably true. But if and when we come to the surrender of that sovereignty, it must be done by an amendment to our Constitution authorizing it, the amendment to be made in form and manner that we the sovereign people have prescribed in the Constitution itself. Let us not surrender our sovereignty by illegal usurpations ·by our treaty-making agents. I am speaking of voluntary surrenders of sovereignty.
We the sovereign people of these United States, challenge our treaty-making agency to submit to us the people the question whether and to what extent we shall surrender our sovereignty.
It cannot be too often repeated that any suggestion of any doctrine such as this at the time of the Convention, would not only have broken up the Constitutional Convention itself (it would have been treated with the scorn some of us think it deserves) but would, having in mind the then temper of the people, also have made the formation of the United States of America under the Constitution an impossibility.
Madison commented on the extent of the treatymaking power:
“I do not conceive that power is given to the President and Senate to dismember the empire, or to alienate any great, essential right. I do not think the whole legislative authority have this power. The exercise of the power must be consistent with the object of the delegation.” (Debates on the Federal Constitution, Jonathan Elliot, ed., 2nd ed. [Philadelphia, J. B. Lippincott Company, 1907] , Vol. III, p. 514.)
Note first, Madison regards this power as a delegated power, not a power inherent in government itself, as distinguished from sovereignty. Sovereignty can do whatever it determines to do, but its agencies can only do wha:t the sovereign principal desires and directs. Any transference to any international body outside of the United States would be a “dismembering of the empire.”
Next-Madison considers our treaty-making power must be exercised “consistent with the object of the delegation,” which was the conduct of the normal international business and relationships. No one had in mind to “dismember the empire,” by surrendering sovereignty for the building of a world-state. And when all is said and done, this seems surely the end aimed at when they give their new theory of the status of “treaty-law.”
A little later in the debate, Madison said:
“Here the supremacy of a treaty is contrasted with the supremacy of the laws of the states. It cannot be otherwise supreme,” – that is, it cannot in any other manner or situation be supreme. (Op. cit.)
Again, he says:
“I conceive that, as far as the bills of rights in the states do not express any thing foreign to the nature of such things, and express fundamental principles essential to liberty, and those privileges which are declared necessary to all free people, these rights are not encroached on by this government.” (Idem, p. 516.) Mr. George Nicholas (a Framer) said in the course of the debates of the Virginia ratifying convention:
“They can, by this [the treaty-making power], make no treaty which shall be repugnant to the spirit of the Constitution, or inconsistent with the delegated powers.” (Idem, p. 507.)
This clearly negatives any such treaty power as that voiced by the man who said that treaty-law could override the Constitution.
Hamilton is quoted as saying (and he cannot be charged with any feeling or intent to lessen the authority of the central government) :
“A treaty cannot be made which alters the constitutions of the country, or which infringes any express exceptions to the power of the Constitution of the United States. But it is difficult to assign any other bounds to the power.” (The Works of Alexander Hamilton, Henry Cabot Lodge, ed. [N ew York and London, G. P. Putnam’s Sons, 1904], Vol. V, pp, 158-159.)
This also negates the treaty-making power from making changes in our Constitution via the treaty route.
Comments in “The Federalist“
One other discussion of the time may be noted, that occurring in The Federalist, a series of essays on the Constitution authored by Hamilton, Madison, and Jay, and declared to be “undoubtedly the most profound and suggestive treatise on government that has ever been written …. But for all posterity the ‘Federalist’ must remain the most authoritative commentary upon the Constitution that can be found; for it is the joint work of the principal author of that Constitution and of its most brilliant advocate.” (Fiske, pp. 341-342.) The reference was obviously to Madison and Hamilton.
A careful, though not meticulous examination of The Federalist seems to show not only that it contains no statement, but not even the shadow of an allusion in support of this modern “interpretation” that would make treaty-law superior even to the point of changing the form of government. The discussion by these statesmen, coupled with the records of the Convention, can leave no doubt to any reasonable mind that any interpretation even of a suggestive character to the point of the supremacy of treaty-law over the Constitution would have defeated the adoption of the Constitution and the formation of our Government. The men of that time repeatedly spoke of anarchy as the alternative to the adoption of the Constitution.
The Federalist was primarily concerned in restricting the field of the treaty-making power itself and justifying the power in the Chief Executive and Senate.
The discussions in The Federalist indicate rather clearly subjects to which the power was to be applied, to wit: The prevention of “hostilities from abroad,” that is, foreign wars, and through national treaties, the avoidance of just causes of war (No. III, Jay); fisheries, navigation and carrying trade, territorial border problems, trade generally, boundary waters and access to our territories (the Mississippi and St. Lawrence Rivers) (No. IV, Jay); treaties relating to war, peace, and commerce (No. LXIV, Jay).
Hamilton (No. LXXV) lists the objections then made to the treaty-making power. He says:
” … I scruple not to declare my firm persuasion, that it is one of the best digested and most unexceptionable parts of the plan. One ground of objection is the trite topic of the intermixture of powers; some contending that the President ought alone to possess the power of making treaties; others, that it ought to have been exclusively deposited in the Senate. Another source of objection is derived from the small number of persons by whom ~a treaty may be made.” (“The Federalist,” The Works· of Alexander Hamilton, Henry Cabot Lodge, ed. [New York and London, G. P. Putnam’s Sons, 1904], Vol. XII, p. 232.)
Commenting upon the authority of the Legislature to make laws and of the Chief Executive to enforce them, Hamilton, as applying the principle of treaties, observes:
“The power of making treaties is, plainly, neither the one nor the other. It relates neither to the execution of the subsisting laws, nor to the enaction of new ones; and still less to an exertion of the common strength. Its objects are contracts with foreign nations, which have the force of law, but derive it from the obligations of good faith. They are not rules prescribed by the sovereign to the subject, but agreements between sovereign and sovereign.” (Idem, p. 233.)
The whole of the discussions in the Constitutional Convention itself, in the State Conventions considering the adoption of the Constitution, and in The Federalist, all join in what seems a unanimous voice that the treatymaking power was to extend to the normal incidents of the intercourse and relationship of sovereign nations, and no further. It was never contemplated by the Framers that this power should be subverted in an effort to destroy our independence as a nation and make us a subservient part of a world-state.
How earnestly Washington, a fond and wise “Father of his Country,” in his poignant Farewell Address, with prophetic admonition and warning, urged us against foreign entanglements and alliances:
“Why,” he said, “by interweaving our destiny with that of any part of Europe, entangle our peace and prosperity in the toils of European ambition, rivalship, interest, humor, or caprice?” (Wiley-Rines, Vol. IV, p. 305.)
How much more serious an interweaving of our destinies with the whole family of nations!
It has already been said that to an outsider this new theory of treaty-law is a device to secure our participation in a world-state. The visionary beauties of this state, its advantages, its blessings to humanity, are dressed for us as if this were some modern concept now for the first time blossoming in the earth-a sort of flower of paradise.
Summary of World-State Movements
We are not usually told that a rather mature concept of such an international organization had a blossoming in 1497 B.C., in the Amphictyonic Council of Greek States, with one race, one religion, one culture, one language, one tradition. When we consider a world-state, not infrequently there is forgotten the multiplicity of race, language, tradition, religion, culture, and all the rest, in a world-state. At its peak, there were in the Amphictyonic Council, thirty-one members. The machinery of the Council was essentially the machinery of our proposed international organizations of today. The intrigues of Philip of Macedon are said to have brought this down in ruins. (William Ladd, An Essay on a Congress of Nations [New York, Carnegie Endowment for International Peace, 1916], p.39.)
There was also the Lycian Confederacy, said to have been very ancient, possibly 1400 B.C., and the Achaean League, 281 B.C.
More recently, in the twelfth century, the organization known as the Hanse Towns came into existence and became very powerful. The Helvetic Union (Switzerland) was organized in early days.
All these organizations were made up of small units, rather than nations, and the organizations were more or less a uniting of these smaller parts into nations. (Sylvester John Hembleben, Plans for World Peace Through Six Centuries [Chicago, University of Chicago Press, 1943], Ch. 1.)
Probably as the result of studies by one Dubois (A.D. 1255) and later by Emeric Cruce (1623), the Grand Design of Henry IV of France and Elizabeth I of England was projected (about 1638). It was avowedly based on the plan of the Amphictyonic Council. It was aimed against the Hapsburgs. It was certainly in some aspects primarily a military alliance. Among its agencies was an international police force. The Grand Design was to make France “happy forever,” and to accomplish this, all Europe was to come into the plan. The machinery was substantially the machinery of our modern setups. The plan proved abortive, because of the death, first, of Elizabeth, and then of Henry.
From the collapse of the Grand Design until 1815, there was a steady but seemingly unorganized propaganda looking towards the setting up of Europe “as one great family” at peace, not war. Articles, books, pamphlets, were written and distributed by various persons of note. In 1815, at the instance of Alexander of Russia, the Emperor of Austria and the King of Prussia joining in the project, the Holy Alliance was formed, aimed primarily against France. For a variety of reasons this plan failed.
Publicists have affirmed that all the foregoing plans involved in their general purport, from the earliest till the Holy Alliance, the same general principles, with the same objectives. It should be remembered that the Grand Design was aimed at the Hapsburgs, the Holy Alliance at France. (Walter Alison Phillips, The Confederation of Europe [London, Longmans, Green, and Co., 1914], pp. 1-69. )
Between 1815 and the end of World War I, there were continued urging and development of the general theme of a united world in peace.
Then came the League of Nations, aimed primarily against Germany. The League contained the same essential machinery as the Grand Design, with some new names and designations. As the other plans had failed over the centuries, so this proved abortive.
Then, at the end of World War II, came the United Nations. Still the same essential machinery. The work of this organization is in our minds.
Some wag has said that the trouble with this generation is that it has not read the minutes of the last session .
We must have peace in the human heart before we shall have peace in the nations; and the level of righteousness of the mass always falls below the level of righteousness of the component individuals ..
In closing I must add a personal word. My faith teaches me that the Constitution is an inspired document drawn by the hands of men whom God raised up for that very purpose; that God has given His approval of the Government set up under the Constitution “for the rights and protection of all flesh, according to just and holy principles”; that the constitutional “principle of freedom in maintaining rights and privileges, belongs to all mankind, and is justifiable before” the Lord. (D & C 101 :77; 98 :5.)
The Constitution is a part of my religion.
So far as my knowledge goes, this is the only government now on the earth to which God has given such an approval. It is His plan for the government of free men.
There will be no permanent peace until He comes to reign whose right it is to reign-a reign of righteousness.
God hasten that day and prepare us therefor, that we shall not be as the five foolish, but as the five wise virgins.
May God hear our prayer.
(Source: An Address Delivered by J. Reuben Clark, Jr. to the 67th Annual Congress of The National Society of the Sons of the American Revolution, July 1957)