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- Title:
- Certain historic concepts of the American way of life with implications for the foundations of curriculum and teaching
- Creator:
- Christie, Arthur, 1906-
- Publisher:
- University of Florida
- Publication Date:
- 1958
- Language:
- English
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- iv, 152 leaves. : ; 28 cm.
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- Subjects / Keywords:
- Bill of Rights ( jstor )
Democracy ( jstor ) Immigration ( jstor ) Parliaments ( jstor ) Property rights ( jstor ) Sedition ( jstor ) United States history ( jstor ) Voting rights ( jstor ) War ( jstor ) World wars ( jstor ) Dissertations, Academic -- Education -- UF Education thesis Ed. D History -- Philosophy -- United States ( lcsh )
Notes
- Thesis:
- Thesis -- University of Florida.
- Bibliography:
- Bibliography: leaves 143-149.
- General Note:
- Manuscript copy.
- General Note:
- Vita.
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Certain Historic Concepts of the American
Way of Life With Implications for the Foundations of Curriculum and Teaching
By
ARTHUR CHRISTIE
A DISSERTATION PRESENTED TO THE GRADUATE COUNCIL OF
THE UNIVERSITY OF FLORIDA
IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE
DEGREE OF DOCTOR OF EDUCATION
UNIVERSITY OF FLORIDA August, 1958
Copyright by Arthur Christie
1958
ACNOWLEDGIMENTS
The writer wishes to acknowledge the contributions made by others to this stucV. Appreciation is especially accorded the members of the supervisory committee for their cooperative attitude in encouraging the research. Dr. Leon N. Henderson, chairman, was particularly helpful in his interest and tactful guidance. Dr. Clara M. Olson, co-chairman, provided both inspiration and technical guidance in bringing the study to copletion. To other members of the committee, Dr. Hal G. Levis, Dr. Rembert W. Patricks and Dr. Charles L. Durrance, indebtedness is acknowledged for their constructive criticism, encouragement, and suggestions.
Appreciation is expressed to the following publishers for permission to use material from their publications G. P. Putnam's Sons; Funk and Wagnalls; University of North Carolina Press; Scott, Foreman and Compar; Harper and Brothers and the Harvard University Press*
In addition to the aid extended by the library services of the University of Florida the writer is grateful for the services provided by the Harvard College Library, Harvard University, and to the Thomas Crane Public Library of Quincy, Massachusetts.
To my wife, Martha Louise Christie, is accorded grateful recognition for her unfaltering faith, the providing of sustaining encouragement, and the restoring of morale during crucial periods.
ii
TABLE OF CONTENTS
Page
ACKNOWLEDOMENTS. ii
Chapter
I. INTRODUCTION AND STATEMENT OF THE PROBLEM . . . .
The Curriculn Dilemma
Concepts and Values
Lack of Synthesis
Changing Conditions Historic Relativity Definition of Terms
Development of the Problem
The Problem
Procedure
idaitations
Plan of the Presentation
II. POLITICAL THEORIES. . . . . . . . . 6 20
Current at the Beginning of the Survey
Concepts in the Documents
BL11s of Rights in American History
Concepts as Found in the Writings and
Statements of Leaders
From the Declaration to the Constitution,
1776-1789
Obtaining the Bill of Rights
Summazy
III. INSTANCES OF SIGNIFICANT DEVEIOPMENTS, 1776-1860. . 58
Social and Political
Economic Issues
Educational Improvements
Religion and Nativism
Early Inequalities at States level
Summary
iii
TABLE OF CONTENTS-Continued
Chapter Page
IV. INSTANCES OF SIGNIFICANT DEVELOPIITS, 16-140's. . 84
Suspension of Habeas Corpus
The Fourteenth Amendment and Freedan of
Speech and Press
Some Effects of Recent 'ars on Rights Espionage Acts of World War I The Alien Registration Act of 1940 Growing Pains of Labor Organisation and the
Growth of Corporations
Religious Lberty
Subverting of Liberty
Summary
V. ANALYSIS OF PRESENwTS ION 106
Variances in Perception of the Concepts
The Need for Clarification
Summar7
VI. FINDINGS, WITH IMPLICATIONS FOR EIDUATION . . . 118
Findings
Implications for Education
Suggestions for Further Study
APPENDIX. . . . 136
BIBLIOGRAPHY. 143
BIOGRAPHICAL SKETCH . . .5. . . .0
iv
CHAPTER I
INTRODUCTION AND STATHOEWr OF THE PROBLEM The Curriculum Dilema
This is an era in which Americans are in substantial agreement upon the need to develop a stranger faith in democracy and the continuance of a free way of life. Democracy is facing a challenge from totalitarian forms of government which is not unique in threats having existed in various form throughout history. It is unique, however, both in the possibility of psychological inroads combatting democratic faith and the threat of a war of possible total extinotimn Civilian and military defections from a free way of life have raised basic questions regarding the way in which vague and apparently confused, beliefs may be replaced by a more positive belief, perhaps more nearly like that of the faith in the American wy of life of former generations.
Education has been under fire in recent years for its alleged failure to instill positive beliefs, and curriculum changes have been advocated to produce the desired results. The major difficulty in curriculum revision is that of securing agreement as to what the changes should be. Basically, it has seemed to be a choice either of developing a narrowly structured belief in an established way of life which would not allow for conceptual changes* or,
1
2
alternatively of adopting the educational methods of those opposed to the American way. The latter is recommended by many in order to face the threat of a possible war of anmihilation, presumably either overlooking the sacrifice of certain dearly held values or willingly sacrificing them for antiipated self-preservation. In terms of the foundations and development of a curriculum the latter involves less free choice by individuals, with the State designating the subject matter and time elements thought necessary. This course of action certainly would not constitute the cherishing and further development of a way of life to which the forefathers were dedi. cated but would be an oulation of a wa of life in antithesis to what has been the democratic goal. Zaberent in the adoption of such a course resides the danger of the MAtion'smvver again being enabled to regain a free w of 1f* Educational conditions i. posed to emulates, to imitated or to run parallel with educational requirements in countries constituting a threat to this country would mean a discarding of values which are part of the democratic faith. Inevitably it would mean the development in the American people of values comparable to those held in high esteem by such other countries.
It does not necessarily follow that the curriculum changes must be made upon an either/or condition. For those who have a firm and unshakable belief in the most widely acceptable articles of the democratic faith, the past eramples of resilience and power
3
generated under democratic ideals and values may produce another answer. Urgently needed is a more widespread understanding of the meanings of such terms as liberty, equalitys and justice as they have operated at different periods in the American way of life.
concepts and Values
In the teaching of certain values attached to a way of
life both the specific and symbolic meanings, difficult to analyse, may lead to a feeling of inadequacy. Particular difficulty is encountered in attempting to clarify such concepts as liberty, equality, and justice, which, though capable of definition pose difficulties in their application. It is possible that the usage of the terms has became highly emotionalised, without specific reference to the possibility of changes in past, present, and conjectural future interpretations.
Earlier usage, particularly during the latter part of the eighteenth century, gave the terms fundamentally a political significance. It is only in rather recent times that they have developed also an economic and social significance. Prior to the year 1776 whatever rights were claimed by the colonists in America were the rights of freeborn Englishmen who, prior to the Revolution, petitioned legally for such rights.
The present study is concerned with the usage of the terms
as they have been used since the securing of independence fran England, for in the strict sense there was before this time no such thing as
'4
American rights. The delineatAon is not to der the influence of rights secured by Englismen from the rom fra the time of Magna Carta in 1215 to the Acts of Settlement in 1700-1701, but to emphasie that selectivity employed in the writing of our great documents was purposeful, and was intended to have meaning significant in the new framework of governent.
Lack Of Systheia
In our culture children at a very early age have been made aware that the concepts of liberty a equality, and justice are the cornerstones of our way of life. Subsequently they are given the opportunity through extended education of recognizing our way as superior to others* The terms liberty and justice are found in the Salute to the Flag-". with liberty and justice for all." Ift the Declaration of Independence is found the concept of equality"We hold these truths to be self-evident, that all men are created equal."
It is likely that seeds of differences and dissension are
being som when at 'the same time no conception of historic relativity is attached to the terms liberty, equality, and justice. It is contended that the American way must be recognized as something vital and changing, as opposed to something static which can be learned ance and forever held true. Cottrell, in recognition of the changing nature of the American way of life, placed woAledge of what it has taken to develop it as fundamental to democratic
aitsenehip. Such knowledge would provide a firmer foundation for withstanding directed against it. Recognition is also
given by him to the need for understanding the part played by con* toaparary insktutions, whch as they develop bring changes in our historic concepts.
. society demands that schools help pupils achieve a
basis for democratic citizenship. The child must understand
the meaning of the American wy, the struggle and suffering
which have produced it, and its strengths and weaknesses
as compared with alternative social systems. This involves not on3l an honest understanding of American political and
social history, but also familiarity with contemporary institutions. The child mt unerstand the goals of the American
dream and make them his own.1
The study is also premised upon the belief that more consistent behavior changes will result from the application of intelligence than from appeals to emotionalised idealism. These two approaches represent a present dichotmy in education. Teachers may resort to emotional appeals at one time and later extol the virtues of the other as being rational, and therefore superior. A recent study of Citizenship Eduation found the leading programs to be so divergent as to defy comparison of them. It is significant however, that college and independInt studies have attempted to devise a more aderipate course in the strengthening of American citizenship. One of these, The Citisenahip Education Project (CEP), of Teacher. College, Cobubia University, is a service to both secondaizy schools
2Dnald P. Cottrell (ed.), Teacher Education for a Free People (oneonta, N. Yls AAcTE, 1956), p. 3.
6
and colleges centering about what has been termed "Premises in the Tradition of American Liberty" The concern is symbolic of a more widespread concern that the values of a way of life be better understood by those who benefit by them. The dichotoy of approach is ably ocamented upon by lanentein.
We cannot ignore the fact that there is an inherent conflict existing in a school program which tries to develop attitudes of patriotism through emotional appeals at the same time it is placing a value on the development of in-.
telligence and the rational approach to the solution of
problems. To be consistent, a teacher or school staff cannot direct their efforts toward both of these aims at once.
They cannot on the one hand encourage blind loyalties to
emotion-charged symbols of American nationalian, and at
the same time encourage students to explore every problem
rationally and arrive at their goals or choose their courses
of action by weighing the anticipated consequences of
alternatives.2
Recognition of the difficulties involved in defining the
American way of life is evidenced by the various sources concerned with the passing on of the cultural heritage. The American way is interpreted largely by the selection of definitions involving the terms previously referred to as cornerstones, and this in turn leads to the acceptance of values which are in conflict, for the acceptance of a definition is comaonly that which seems most appropriate to the individual or a group's needs. For immigrants who
orris Robert lawnstein, "Sam Current Projects in Citizenship Education," Progressive Education, XXX (May, 1952), pp. 2li9-62.
2Morris Robert lawenstein, "An Analysis of Some Concepts of Citizenship Education" (unpublished Ed.D. dissertation Department of Eduation, University of Illinois, 1953)o P. 16.
7
aspire to citisensbip the Izimogration and Naturalisation Service has shoin its concern for the passing on of the American heritage as being more than the memorisation of teohnicalities.
Helping your students to meet the legal requirements for citisenship is an important part of your works but it is not your
major task; knowledge which touches the mind but not the heart
serves no great purpose. . Real citizenship is not attained ly merely meeting the legal requirements. Every American ait&sen should have an abiding faith and a coanpelling belief in the ideals of freedom and justice upon which our government
is founded. Passing on to your students this American heritage is the second and the most difficult and vital part of
your task
Here recognition has been shown as to the difficulty involved in developing that "abiding faith and compelling belief in the ideals of freedom and justice upon which our government is founded." The question arises as to whether this can be acomplished in auh a manner as to offset later divergent viewpoints which may result fran varying socio-econanic levels. This is not to intimate that divergent viewpoints are unhealthy with respect to controversial issues, but to contend that a person understanding the most widely acceptable articles of the democratic faith, together with some of the misconceptions which have arisen, will be less likely to transfer values of the past to present changed conditions.
In 1937 Harper's magazine ran a prize essay contest in which contestants attempted to define the American way of life under the
'. S.0 Department of Justice, Inigration and Naturalization Service, Aids for Citisenship Teacheras A Resource Unit for Use in the Public Shools l Teachers and candidates for Iaturaisation (Washingtona U. S. Government Printing Office, 1943)0 p. 1*
8
ttle "The American ay."1 No manaWlity of subject matter is to be found in the four essay selected as best. The four Amers sub. mitted essays as individual as the following main lines of thought; liberty and freedca of opportunity; collectivism as a future eventuality; dmoratic education to make political doctrines acceptable; and, dignity of the individual coupled with a reasonable measure of respect for reality in politics. That contest was the result of concern with public understanding, and the results would seem to indicate that mich of what is thought of the American way of life, unless tempered by selective value premises is very likely to be a personal opinion without long-lite roots.
That motionalised Americanisms do not resolve into behavior consonant with democratic ideology has been recognized ty many Interested in education when they have viewed the upsurge of juvenile delinquency in recent years. A pooling of the resources of commities in securing the support of the hme, church, school, and various clubs to provide properly supervised recreational facilities has helped, but more than pleasurable activity is needed. Those responsible for value premises need aid in the presentation and synthesis of a way of life directed toward full development of individual capacities and the integration of the individual into an ongoing society.
2favid Cushman Coyle and others, The American MW (New York and Londons Harper and Bros.9 1938).
9
Divergent vieswpoints as to what constitutes the American way of life are not the exclusive prerogative of any one class group, nationality$ sections or state. The following exwerpts indicate a basic difference in viewpoints as held by two persons of high educational intelligence. Hutchins takes the view that asphasises the right of the people to express viewpoints on the American way with the same lack of restriction as those of a century or more ago. Continuance of individualism rather than the development of goals of a cooperative society appears to form the foundations of his recommendation as to how to preserve our way of life.
We hear on every side that the American Way of Life is in
danger. I think it is. I also think that may of those
who talk the loudest about the dangers to the American
Way of Life have no idea what it is and consequentlyv no
idea what the dangers are that it is in.
You would suppose, to listen to these people# that the
American Way of Life consisted in unanious self-adoration.
Down with criticism don with protests; down with unpopular
opinions; down with independent thought. Yet the history and tradition of our country make it perfectly plain that
the essence of the American Way of Life is ite hospitality to criticism% protest, unpopular opinions, a independent thought. A few dates like 2620, 1776, and 1848 are enough to remind us of the motives and attitudes of our ancestors.
The great American virtue was courageol
Browne in a review and rebuttal of the Hutchina' viewpoint empha.* sises the need to consider historic relativity in any assessment of present conditions.
Robert IM. Hutchins, "The American Way of life," School and Society 70 (August 27, 19149), 129.
10
Oversimplification can easily became dangerous. Dr. Htchins a
references to our American way of life slur er the fact that there is a basic issue, as represented respectively
by Plato and Dewey, regarding the manner in which this
way of life is to be interpreted. As long as this issue
is kept out of sight most readers ILl probably be encouraged in the lasy habit of identifying liberty with absence
of restriction. To this extent Dr. Hutchins' article is
a disservice to citizenship and to education. Appeals to
the American way of life are out of order unless we are
shown how this way of life is to be interpreted so as to meet changing situations and to enhance the values that
serve to make human life a thing of beauty and of worth.1
In all probability those allying themselves with a definition of liberty which is positive rather than negative would agree with the latter writer. Fundamentallys the differences arise not simply in differences of definition but upon the acceptance of a different set of postulates regarding the democratic faith.
Froa the foregoing it appears that our methods in the transmission of democratic ideals and values are consistent neither in approach nor in results. Emotionalised idealism lacks the foundations of historic relativity to give it substance. Leading programs of citizenship education are widely divergent in the attempt to remedy the felt need to further democratic faith. laymen's evalu. actions of the American way of life differ markedly in their perceptions of present and future advantages. Intelligence and education at a professional level do not necessarily bring concurrence in viewpoint as to the nature of the democratic state nor the direction in which it should proceed.
'Eleanor Bode Browne, "Dr. Hutchins and the American Wy of Life," School and Societyo 70 (December 17, 1949)o 410.
The lack of synthesis in approaches, In the Understanding
of the ideals and values, and in the evaluation of the performance
of a democratic state likely resides in inital differences of
perception as to what constitutes the demoOratic faith. Counts
presents the followdng articles as amndng the widest acooptance.
First, the individual iuman being is of surpassing worth Second, the earth and the heun culture belong to all men
Third, men can and should rule themselves
Fourths the hman mind can be truated and should be set free
Fifth, the method of peace is superior to that of war
Sixth# racial, cultural, and political minorities should be
tolerated, respected, nd valued.l
The attempt to define literally all of the aspects of democracy has challenged may writers who have been unable to arrive at
unanimity. Though such agreement has not been secured# Hines offers
the following observations to counteract a ousrn tInMing respecting the nature of democracy.
1. Democracy is not necessarily associated with any particular as or aise of state.
2. Democracy is not necessarily dependent upon any particular ponulatioi.
3. Democracy is not dependent upon any particular economic
system. The aasmiption that it is is very cOnnonly
accepted with regard to the association between democracy and laisses-faire capitalim. Since they cme
into being in the modem world together and have matured
together it is assumed that they are dependent upon
each other.
4. Democracy is not necessarily associated with any particular race.
5. Democracy is not necessarily associated with any special
form of centralisation of power or functions.
1
George S. counts The Education of Free Men in American Dmocra (washingtoni Educational Policies COamission: The National Education Association* 1941), p. 33.
1.2
6. Democracy is not necessarily associated with any particular form of representative or executive organisation., With knowledge of the foregoing articles concerning the democratic faith and the pitfalls concerning the democratic state, Americans should be able to measure the possible consequences of proposed changes and thus discern possible conflicts.
Changing Conditions
The Dealaration of Independence and the Constitution of the United States followed by its attendant Bill of Rights were drawn up when the country was largely agrarian with relatively simple economic and social conditions. The growth of the United States, both in area and population, has not been that of an extension of fixed conditions but rather a oampuexty of oonomic and social conditions undreamed of by the "Fathers" of the Documents. One may well ask what remains to the American of today of what constitated the American W of life of a past day and age? To what extent do the people look upon the traditions and ideals of the forefathers as being a present force in their living? In what way, if any, have changes occurred in the basic concepts of liberty, equality, and Justice? The answer to the last question my well be the key to the other questions. Constant reappraisal in terms
l4 ce Albert Hines, "A Critical Study of Certain Criteria for Selecting Curriculum Content" (unpublished Ed.D. dissertation, University of Illinois, 1949), p. 161, based upon two statements by Charles E. Merriam The New Democracy and the New Despotism, pp. 6, 71, and hat laD2mocrac. pp. 9 -0.
13
of the historic relativity of the concepts is necessarily a correlative measure in understanding what has occurred.
The cannon heritage of this country* which was essentially
English-Amercans has been conditioned by the perceptions of millions of imedgrants who brought with them their own group cultures. To contend that most people view the basic elements of a way of life in substantially the same manmer, without previously instilled loyalty to accepted postulatess would be to refute what is known about the nature of perception.1 That the imigrantst understanding of the terms liberty, equality, and justice would coincide with that of the native born would be an irrational viewpoint. That they fitted in so readily is a tribute to the conditions which existed when they were arriving by the millions. The more acceptable parts of their cultures have been integrated with that of this country, and where sone degree of homogeneous grouping took place the Impact of their cultures has a continuing effect.
Statoric 9lativity
A phenomenon of the American way of life is the acceptance of outwardly profound statements which when subjected to scrttagr
'Cf. Earl C. Kelley, Education for What Is Real (New Yorks Harper & Bros., 1947);1 Earl C. Ke1ey and Marie 1. ~asey, Education and the Nature of Man (New Yorks Harper & B roses 1952)1 kuiewi 10 Thery of P onal (New Yorks McGraw Hill Book Co.,
Ine*, 1935); $ ardner Mturphyp Personalitys A Biosocial Apprach to Orii ostucture (New Yorks Harper & Broos1987 A* A s.
Personalty In heozr andPactice (Cwbridge, Mase.sa SC-ART, 1950).
14
are found to be highly emotionalised appeals* These are sanctioned and promoted by traditional idealists who oppose any change as being an infringement of their ancient rights. Whether or not the public at large* upon hearing references to liberty, equalitya and justice have attempted to apply rational thought in an analysis of specific meanings is open to doubt. If Aericans were asked to tell one about the American way of life the individual responses would be varied but in all liklhood the objective syntheses wu2d be few in nwber. One might wonder if the spirit of idealism has required us, in an authoritarian manner, to promote an uncritical acceptance of traditional assumptions. If this be true, the implioation follows that the American people need to be provided the means whereby they may perceive more clearly the historic relativity of their traditional concepts. Dewey has made clear with abundant references the various meanings of the word liberty under different circumstances and at different times. The word has meaning only in context with a particular period of history and under a particular set of conditions which are known, It should follow that the word has had different meanings at different times in American history. His observations with respect to the historic relativity of the word are worth noting.
If we employ the conception of historic relativity# nothing
is clearer than that the conception of liberty is always
relative to forces that at a given time and place are increasingly felt to be oppressive. Liberty in the concrete signfies release from the impact of parcular oppressive
15
forces; emancipation from something once taken as a normal part of hunan life but now experienced as bondage. At one
time, liberty signified liberation frm chattel slavery;
at another time, release of a class from serfdom. During
the late seventeenth and early eighteenth centuries it
meant liberation from despotic dynastic rule. A century
later it meant release of industrialists from inherited
legal customs that hampered the rise of the new forces
of production. Today, it signifies liberation from Material
insecurity and from the coercions and repressions that
prevent multitudes from participation in the vast cultural resources that are at hand. The direct impact of liberby
always has to do with some class or group that is suffering
in a special way arom same form of constraint exercised
lbr the distribution of powers that exist in contemporary society. Should a classless society ever cone into being the formal concept of liberty would lose its significance, because the facetfor which it stands would have become an integral par the established relations of human beings
to one another.Definition of Terms
Before proceeding with the development of the problem the
following definition of terms used in this and succeeding chapters
will be hspful.
Articles . . . Articles of Confederation
concepts . . . In this study a collective word
meaning liberty, equality, and
justice
Convention . The Constitutional Convention of 1787
Declaration . . The Declaration of Independence
Documents . . . The Declaration of Independance and
the Constitution including the BRL
of Rights
John Dewey, Iberalian and Social Action (New Yorks G. P. Putnam's Sons, 1935), p. 48
16
Father. lMen largely responsible for originating
and securing passage of the Docuaents historic relativity. The generally accepted meaning of a term at a particular time in history lass Resolutions. . Resolutions to declare independence from Great Britain
Parliament . . . The Parliament of Great Britain Develoent of the Problem
To promulgate concepts without clarification is tantamount to their acceptance as being truths without respect to time or place. It is hardly conceivable that the import of them when drawn up is fully applicable to resent day conditions. It is unlikely that political, economic, and social changes have occurred without changes in the meanings and/or application of those concepts, together with their implied duties. Social intelligence should be operative in the surveying of this problem. Faith in the concepts is not challenged insofar as they have been an integral force in the lives of the people. The task is to trace developmental lines so as to avoid acceptance of generalizations which lead to ambiguous and inadequate meanings.
The Problam
More specifically, this study is to employ the application of historic relativity to the concepts of the American way of life.
17
It is to trace the meanings and applications of the concepts of liberty, equality# and justice as they have, and now do, apply to the American way of life.
The study will attempt to arrive at valid conclusions with respect to the following a
1. The philosophic concepts of the terms as held by the founding Fathers.
2. Major changes which have occured in their application, whether by mean of extensions restriction, or being construed to embrace new meanings.
3. Implications for the foundations of curriculum and teaching,
Procedure
The procedure will be to determine first the political
philosophies held in high esteem during the evolutionary War days. Knowledge of the philosophies should enable one to better understand the political thinking of the country's leaders. As liberty, equality, and justice are terms oftentiaes used synonymously with democracy, the Deolarations the Constitution, and the BL11 of Rights will be studied for the inclusion of those terms.
The wording of the Docuents, together with the writings and statements of those largely responsible for then should give an indication as to what meanings they attached to the concepts. With an understanding of the generally accepted meanings of the term
18
at the beginning a comparison may then be made throughout different periods. Significant changes in political, economic, and social condition should reflect the contemporary understanding of the meaning of the concepts at any particular time. An overview of the research should reveal a comparison of the application of the con.* oepts for the significant periods.
IAmitatiana
Other than a recognition that our founding forefathers did not grasp their political philosophies from thin air the study is confined to the period from 1T6 to the 1940's6 I.thin this period there have been years when more occurred which had a direct bearing upon the popular conception of the terms under study than at other times. The study is maintained at the national level with selected anaples of the effects at the state level. Differences in state legislation embracing the concepts precludes a detailed exposition for each state within the limits of this study. Also, from a standpoint of feasibility, it would be impossible to cover all the inter. vening years individually, and it may well be that may years of peaceful progress would disclose little of significance. This does not discount the possibility of ferment during peaceful periods which resulted later in either orderly or violent change. It is hoped that the periods of maaor change which have been documented present an accurate portrayal of significant development.
19
Plan of the Presentation
For the reader interested in the political theories subscribed to during and shortly after the Revolution, Chapter II will attempt to develop the effects of those theories upon the writing of the American Documents.
Significant developments in the lives of the people, involving changes in the meaning or application of the concepts, will be found in Chapters III and IV.
Chapter V will present variances in perception of the concepts, both in our early history and during this century, together with a need for clarifying present meanings as applied to present conditions.
Findings based upon the research together with implications for curriculum and teaching will be found in the concluding chapter
CHAPTER I
POIrTICAL THEORIES
Current at the Beginning of the Survey
There is rather general agreement among those who have conducted searching inquiry into political theories of the preRevolutionary period that no evidence has been uncovered to substantiate the growth of a political philosophy peculiar to the colonies. The Declaration of Independence, viewed as an expression of American political thinking was not new in its conception of political liberty, but new only in its application and enteation of rights as hitherto viewed by Engisben. It is true that for a considerable mober of years prior to the Revolution political doctrines had been advocated and espoused by every conceivable means available at the time, These, den not deliberately partisan to the Crown in pleading for legal petitoning of rights did contain the seeds of rebellion in contending for an either/or position, Father Parliament should accord to the American colonists all the privileges of British liberty or the colonists should deny the authority of Parliament to legislate for them* Before armed defiance broke out Allson expressed these thoughts in 17714,
It will be very material to consider the several securities,
which the inhabitants of Oreat Britain have, that their
liberty will not be destroyed in the legislature, in whose
hands it is intrusted. If it shall appears that the same 20
21
securities are not enjoyed by the colonists; the undeniable
consequence will be, that the colonists are not under the same obligations to intrust their liberties into the hands
of the same legislatures for the colonists are entitled
to all the privileges of Britons, We have committed no
crimes to forfeit them: we have too much spirit to resign them. We will leave our posterity as free as our ancestors
left us.1
It is significant that Wilson in evaluating the authority of the House of Commons premised his writings upon the colanistas viewing the members of that legislative body as being their equals. This approach could be taken without any trace of condescension; to have reversed the contention might have injected a seed of doubt regarding such equality. It is unlikely that members of even the lower house, considering England 'a hierarchy of "each man in his place" would have ever thought of proposing such equality, prefaced even as it was, in the language of being "fellow subjects."2 The political doctrines were instrumental in shaping political thinking of the day, but no concise statement embodying the principles of the writers and speakers was made which could be said to have enlisted the support of the public in generals or for that matter any large segment of the public until the publication of the pamphlet Comon Sense by Thomas Paine. We may therefore view
he Works of the Honourable James Wilson ed. Bdrd Wilson (3 vols.; Piade ias Prined for Bronson and Chauncey at the
lorenso Press, 18), IIIs 207.
2Ibid., p. 222. (To preserve continuity in the writing, supporting quotations are given in the Appendix, alphabetically arranged by author.)
22
the Deolaration as a deliberate selection of political doctrine to which consent of the leaders could be secured. It viewed constitutional rights frame the standpoint of the American coloniess and not from the generally accepted legal viewpoint of England, and added for good measure the doctrine of "natural rights," from which was deduced the philosoper that all rights originate with the people. The writings of leaders such as Samuel and John Adama, Otis, Dickinson, Wilson, Paine, and even Hamilton, all support this view.
The Declaration did not signalise the opening of the rebellion against the Crown, for it was a formalised statement of why the rebellion was taking place. Groundwork for rebellion had been seeded 1t Samuel Adams, Otisp Hancock, and others over many years prior to the events at laington and Concord, where armd resistance had occurred in the previous year. What then was the thinking of men who dared rise against the king and to place their signatures in a bill of oaplaint, not against the Parliament which had enacted the unfavarable laws but against the king himself Had it been a period of nch interchange of ideas with France much could be attributed to writers such as Roussean, but as such writings did not have wide dissednation at that tae it is more likely that the origins rest principally with English writers such as Milton, Locke, and Blackstone. Milton had in his writings upheld the right of the people to depose or put to death a wicked king. He also vigorously
23
defended the birthright of freedom and referred to former cooperstive action to sustain that right.
No man who knows aught, can be so stupid to deny that all
men naturally were born free, being the Image and resemsblance of God himself, and were, by privilege above all the creatures, oom to ocmand, and not to obey; and that they
lived so, till fron the root of Adam's tensgression falling
among themselves to do wrong and violence, and foreseeing
that such courses must needs tend to the destruction of
them all, they agreed by common league to bind each other
from mutual injury and jointly to defend themselves $
any that gave disturbance or opposition to such agreement.
Looke placed emphasis upon the origins of political power
as residing in the people, they having in the beginning resided
in a state of nature. Whatever tranaer of power agreed to by the
people was therefore a power which could be rescinded upon justifioation. His statement on the original nature of man contains
basic present-day democratic doctrine.
Men beings as has been said, by nature all free, equal, and independent, no ane can be put out of this estate and subjected to the political power of another without his own consent. The only way whereby any one divests himself of
his natural liberty, and puts on the bands of civil society,
is by agreeing with other men to join and unite into a
comaiIty, for their cofortable, safe, and peaceable living one amongst another in a secure enjoyment of their proper- 2
ties, and a greater security against any that are not of it.2
It is likaly that writings of Blackstone, published eleven
years prior to the Deaclaraton# in 1765, coming from a legal-minded
1John Miltn, Prose Selctions, d. Merritt Y. Hughes (New York: Odysey Press, 1947), p. 277
2The works of John Locke A New Edition Corrected 1823 (laons omas a son, tefriars s 394,
24
British authority carried much weight in support of both Milton
and Locke, The following views gave a more conteorar and legally
authoritative basis in contending for "natural rights."
The absolute rights of man considered as a free agents
endowed with discernment to know good from evils and with
power of choosing those measures which appear to him to
be most desireable# are usually sued up in one general
appellation and denominated the natural liberty of mankind.
This natural liberty consists properly in a power of acting as one think fitO without any restraint or control, unless
by the law of natures being a right inherent in us by
birth, and one of the gifts of God to man at his creation
when he endued him with the faculty of freemill.1
The more incendiary spirits behind the movement for rebel.
2ian probably rubbed their hands in glee when Blackston outlined
the three ways in which the preservation ot rights could be proteated. having apparently exhausted the first two methods without
adequate redress the colonists could, based upon an interpretation
of the laws of Englando justify reocurse to arms.
# To preserve these rights from violation, it is necessary that the constitution of parliament be supported in its full vigor; and limits, certainly known, to be set to
the royal prerogative* And# lastly, to vindicate these
rights, when actually violated or attacked, the subjects of
England are entitled, in the first place, to the regular
admdnistration and free course of justice in the courts of lw.l next to the right of petitioning the king and parliament for redress of grievances; and lastly, to the right of
having and using arms for self-preservation and defence.2
1William rlackstone, comentaries on the Lawa of England# ed. George Sharawood (Philadelphias J. B. Idppincott n uompany, 1875)o is 125.
21bid* .p 1163-46
25
Oncoeyte in the Documents
The Doouments contain the teams liberty, equality# and justice in the parts cited below
In the Doclaration of Independence
. and to assume the separate and equal station to which
the Lawis of Nature and of Nature's Go entitle them.
We hold these truths to be self-evidents that all men are
created g a .
* # that they are endowed ly their Creator with certain unalienable Rights, that among these are Itfe, L and
the Pursuit of Happiness.
He has obstructed the Administast4an of i e .
They too have been deaf to the voice of justice. .
In the Constitution of the United States
We the People of the United States in Order to form a
more perfect Union, establish Justice insure domestic
Tranquility, provide for the como fence, promote the general Welfare, and secure the I lessings of it to
ourselves and our Posterity, do ordain and es b this
Constitution for the United States of America.
Justice, as used in Article IV, Section 2& is not construed to apply to this study being used in the sense of "authority."
In the B1 of Rights
The first ten amendments now known as the Bill of Rights went into effect Decmber 25, 1791.
All underlinings in the Documnts are the writer's.
26
Fra Article Vs
e . nor shall be compelled in argr criminal case to be
a witness against himself, nor be deprived of life, l
or property, without due process of law, . 61
In the Bill of Rights specific use of the words equalitgr and justice does not occur but no one would question the intent in that particular respect. The concern for freedom of speech, protection against arbitrary arrest, the sanctity of the home against unreasonable search, and others, express the concept of personal liberty equality in any action taken against an individual# and justice accorded by law rather than by eeutive or judicial whim.
Bills of Rights in American Histozr
The Delaration of Independence was not a listing of new rights to which the colonists had aspired. It was a denouncement of the King for circumventing rights already secured to Englishnen.2
Prior to the Declaratians coloial bills of rights were
to be found in all the colonies differing in wording but containing a common core in expression. In a study of the list of rights which were clataed, up to and including the Declaration, the following were the rights most generally stated
All parts quoted from the Docments taken from Henry Steele Colmager (ed.)# Documents of American History (New Yorks F. S. Crofts & Compaz, 1,947), pp. 100-IX3, l39-Z6.
2 Leaila Roberta Custard, Bills of Rights in American History (UnRiversity of Southern Californiaa Social science SeRie #21& 1IX2), p. 12.
27
1. No taxation without representation
2. Trial by jury
3. The right to participate in legislation
4. Freedm of religion
5. A man should be judged or punished only socording to the
laws of the land or by judgment of his peers
6. Protection of property rights
7. Rights and liberties of nat born subjects of England
8. Right to English comonla
Concepts as Found in the Writings and Statements of leader
The committee selected to prepare a doolaration embodying the resolutions submitted by Richard Henry Lee included Jeffersons Franklin# John Adamas Livingston# and Sherman. In addition to the influences referred to previously these men were influenced in their thinking by the recently adopted Virginia Delaration of Rights and the Constitution of Virginia.2 In their personal writings the cmnittee members reveal the following usage of the conoepts in the periods before, during and following the Revolution, as follow. Although the actual writing was done by Jefferson, agreement with respect to the general usage of terminology had al,ready secured the approval of the Convention through the passage of Ie's Resolutions.
Thmas Jefferson
The faith of Jefferson in the possibility of man's improvement in the regulation of his own affairs, and to share the blessings
bidv sp* 13.
2Benjamin Fletcher Wright, Jr., A Source Book of American Political History (New York s Maomillan Co., 1929), pp. 119-127.
28
of equality and justice, is expressed in a number of his writing. In a letter to James Madison in 1787 Jefferson said, "The people are the only sure reliance for the preservation of our liberty."l
He was not unaware of the possibility of danger arising to threaten liberties fran an unshackled legislative or executive branch of government. In the year following ratification of the Constitution, he still regretted the mission of a bill of rights.2 It is, therefore, no idle conjecture that had he attended the Caovention, Mason, Randolph, and Gerry would have received strong and influential support in their last minute concern over protection of established or sought-for rights. His patience and faith in the attainment of liberty is contained in his letter to Rev. Charles Clay in the year before adoption of the Bil of Rights.' Massive or quick gains he did not expect, for in recognition of the long struggle waged for liberty throughout the history of the world he was reconciled to the securing of it when and if possible. He recognised that restraint was necessary in the area of personal liberty. Bounds could be exceeded by the undee allocation of liberty to those who failed to observe any restriction against impairing the "equal liberty of his fellow citiens.*4 In addition to his extensive writings upon liberty, consonant concern with
3 Jeffersonian Oployda, ed. John P. Foley (New Yorks Funk and Wagnalls, 1900), p. 01.
2.bid. (Appendix) 3bid., p. 00. (Appendix)
Ibid., p. 499. (Appendix)
29
the concepts of equality and justice raw like threads through his expressed philosophy. Th describing to a friend in France the new equality to be observed during the period of the Articles, the friend may well have been perplexed by the implications for the society of which he was a parts
On Equality
In a letter to M. Dfewauner in 17861
In America no other distinction between man and man had
ever been known but that of persons in office, exercising power by authority of the laws# and private individuals.
Among these last, the poorest laborer stood on equal ground
with the wealthiest millionaire, and generally o a more
favored one whenever their rights seemed to jar.
There was a new spirit abroad in America. Whatever hidden refuge was hitherto used by man in withdrawing from a world where inequality was the sooepted order to one wherein hIs own concept of equality in value was paramount was being discarded, and the open avowal of equality was being embraced. Jefferson recognised this as being the spirit of the nation.2 This was to lead to a different conception of the ends of government. No longer were those who ruled to be principally occupied in the continued subjugation of the governed to their own aggrandisement, but were, if they were to be continued in office, to be engrossed in the striving to attain equality and happiness for the people.' That justice was not a
1T*id., P. 308. 2Ibid. (Appendix)
3,bid. p. 308. (Appendix)
3D
commodity to be dispensed orly in the judicial sense by courts of law is apparent in his writings. He deemed it important enough to include the unconditional dispensing of it in his first inaugural address.
On Justice
In First Inaugural Addreas, 18011
* Equal and exact justice to all men, of whatever state or persuasion, religious or political I does Loe of the7
essential principles of our government and consequently
one- which ought to shape its administration.1
Was his thinking modified during his tenure as chief executive of the country? A letter some two years after his inaugural to Dr. Benjamin Rush reiterated his belief in equal and impartial justice to all.2
Benjamin Franklin
When he chose to do so, Franklin was adept in expressing
complicated subjects in a few words, stripping away the outer lyers of a structure and expressing the meaty center. He reduced the relative roles of the people and a government as established in this country to the simplified form expressed in his private writings. on usery
From unpublished manusoripta
This government was established "for the Security of our LIberties, Property, Religion and everything that is dear
1*bido p. 52. 21bid. (Appendix)
31
to us," and was to be "nothing else but the Attendance
of the Trustees of the People upon the Interest and Affairs
of the people."I
At the beginning of the resistance to the rule of England it appears that Franklin had his doubts concerning the success which would attend it. Acutely aware of the military and naval strength of the British Empire he wa apprehensive that those who resisted would be killed# leaving in the colonies only those who chose what he termed slavery under an absolute power.2 Despite this he was in accord with the movement to fight for liberty rather than to succumb meekly. Recognition that the blessings of liberty should be the birthright of all mankind is expressed in his prayer that it might at aame time spread throughout the world.3 Of the same importance was his concern for equality. Inequalities in life resulting frame differences in worldly wealth were to be nonexistent in the government concern for the life and liberty of each inhabitant. On Equality
From The Writings of Benjamin Franklin, edited by A. H. Smith, quoted in Eiselen:
He declared, "The important ends of Civil Society, and
the persona.L -,uritiee of fe and Liberty, these remain
the same in every Member of the society; and the poorest
continues to have an equal Claim to them with the most
opulent.
alcolm R. Eiselen, Franklin's Political Theories (Garden City, New York: Doubleday, Doran & Company, Inc., 192d), p. 9.
2Iidos p. 45* (Appendix) i., p. 82. (Appendix)
41bo p. 77-78.
32
This was a natural conclusion for Franklin to arrive at as he conceived the social compact as entered into by equals, each giving and each sharing in common the social structure being erected.1 It is true that his measure of equality with respect to eligibility for suffrage changed during the years. Prior to the Revolution it does not appear that he thought universal suffrage a necessary qualification in the protection of individual rights.2 In the years to follow his thoughts with respect to that underwent a change. During the Convention he expressed his dislike for England 'o praotice of limiting the suffrage by opposing a motion which would have limited suffrage to freeholders.3 Other rights which were general understood by the people were not treated individually by Franktlin. This was very likely due to such general understanding for although he mentioned other rights, for examples, the right of petition, he did not elaborate upon them.
John Adame
Long a student of political philoeopby, and during his
lifetime destined to hold many public offices at the national level, including the Presidency, Adams was a prolific writer. As early as 1779 he was engaged in the writing of a bill of rights for Massachusette, to accompany the new constitution for that commonwealth.
1lid*, p. 9. (Appendix) 21bid, P. 79. (Appendix)
31bid*# p* 80. (Appendix bid., p 1, (Appendix)
33
The concepts of liberty, equality, and justice together with their practical application were not new to hing for he had long understood the dangers inherent in a too moh or too little policy.
on mbery
In a letter to Dr. Price from Auteuil, April 8, 1785t
. When all men of all religions consistent with morals
and property, shall enjoy equal liberty, property, or rather
security of property, and an equal chance for honors and power, and when government shall be considered as having
in it nothing more mysterious or divine than other arts
or sciences, we may expect that improvements will be made
in the human character and the state of Society.1
Democracy was not a tool to be used by individuals or groups for self-gratification, but the spirit of it was to be applied to the good of the whole.2
No Utopian misunderstanding was his in contemplating the meaning of equality among men. He was too astute to understand it in anr light other than equal rights and equal treatment at the hands of government.
O quality
In"TLscourses on Davila," 1790a
. Although, among men, all are subject by nature to
ual laws of morality, and in society have a right to
1 for their government, yet no two men are
'Charles Francis Adams (ed.), The Life and Works of John Adams (10 vols.1 Bostons Charles C. Little and James Brown 1850) VII# 232.
2Ibid., VI* 477-78* (Appendix)
perfectly equal in person, property, understandings activity*
and virtue, or ever can ', made so by any power less than
that whLch created them.
That he viewed the leveling tendencies of equality in the
French Revolution wi th abhorrence is evident in a letter to Richard Price, nor do the same tendencies in America go unnoted.2 is concept of equality was equality before the laws of the people, expressed in "Equal laws are all that ever can be derived from human equality," written to Thomas Brand-Hollie in 1790.3 aut, with the idea that such equality, equal lawa, was not to be an earned equality but an endowment at birth, he was in acoord.h John Hancock
What about the man whose signature was to be the first
on the Declaration? It does not appear that Hancock had any natural prediliotion for politics prior to his membership in several organizations and clubs in Foston. As head of the House of Hancock both foreign trade and domestic sales made heavy demands upon his time and energy, but increased taxes upon his shipments coupled with the political tenor of club associates combined to arouse his interest in political debates. Contacts with fellow club members such as Otiss Samuel Adamsa Dr. Joseph Warren, Paul Revere, Thomas Dawes, Dr. Benjamin Church, and Thomas Cushing led to his successfully
1 2
T.id., VI, 285-86. 2Ibi., IX, 564. (Appendix)
3Ibid., Ix, 57o, 41bid., VI, 453. (Appendix)
35
running in 1765 for election as one of the seaotmen of Boston.1 It would appear that his initial thinking, in terms of the coneepts under study was bound in the relationship of a merchanto.trader to the British Empire, rather than as affecting all the people and the Empire.
On Liberty
In a letter written in June, 1776 while President of the Continental Congress, and circulated in a number of the colonies:
. . Quicken your preparations and stimulate the good
people of your goverrment-and there is no danger, notwithstanding the mighty armament with which we are threatened,
but you will be able to lead them to victory, to liberty,
and to happiness.2
Samuel Adam
The views of Samuel Adams should need little by way of example to remind us of the influence he had generated in the movement toward independence. A past-master in the art of rabble-rousing he had also built well in securing aid in more respectable quarters. John Adams paid him the compliment of being one of the three men most responsible for engineering events leading to the Declaration,3
'Herbert S. Allan, John Hancook Patriot in Purle (New Yorks Macaillan Company, 1948), p. 223.
2Ibid., p. 223.
3John Adams, Letter to William Tudor# Quinoy, 5 June 1817,
quoted in Old South leaflets (Boston: Directors of the Old South Work, Old South Meeting Houses n.), VIII, 69-72.
36
In Otis although incapacitated in the period immediately preceding the rebellion, he had one of the formost legal minds of the ties. Hancock, although proving recalcitrant at times, which sorely tried the patience of Adams, provided the aristocratic front, making pissible the listing of support from the more affluent segment of the people. Adams's view of liberty was that of the social campact, encompassing freedom of mind as well as of physical action.
On I~berty
From "Natural Rights of the Colonists as Men, 177%h
"Just and true liberty, equal and impartial liberty"
in matters spiritual and temporal, is a thing that all men
are clearly entitled to by the eternal and imitable LawS
of God and nature, as well as by the law of nations and all well--grounded municipal laws, which must have their
foundation in the former.1
He was aware, many years prior to the Revolution, of mis guided notions held by some with regard to liberty. Such notions would make of liberty a license to cormit acts of depredation without restraint.2 Though endowed with an ardent revolutionary spirit this was far from his conception of an orderly regulated freedom. Restrictions to hi were to be limited to those necessary for the good of the whole.3
1al m, V. Wells (ed.), The life and Public Services of Samuel Adams (3 vols.; Poston little, Brown & ampan3Fs ) I )2.
2 Dd$po 22. (Appendix) Ibid*p P*, 503*
37
Jame Wilason
Reference has already been made to the writings of James W1son in the first part of this chapter. As an eminent lawyer, later serving as an Associate Justice of the Supreme Court of the United States, his views were expressed both in the Continental Congress producing the Declaration and at the Convention which produced the Constitution.
Oni Liberty
From"Speech in Convention of Pennsylvania, 26 November, 178Y'?
We have remarked, that civil government is necessary to
the perfection of society we now remark, that civil liberty
is necessary to the perfection of civil government. Civil
liberty is natural liberty itself, devested only of that
parts which, placed in the government, produces more good
and happiness to the community, than if it had remained in
the individual. Hence it follows, that civil liberty,
while it resigns a part of natural liberty, retains a free
and generous exercise of all the human faculties, so far
as it is canpatible with the publick welfare.1
By birth a Scoteman he took it upon himself to pay tribute
to his adopted country by volunteering his opinion that the outstanding attributes of the "American Character" were love of liberty coupled with love of law*2 Versed in law and government he was cognizant of the contending forces which could arise under a
Selected Political Essaas of James Wilson, ed. Randolph G. Adams (New York$ Alfred A. Knopf, 1930), p. 166.
2*bids p* 16 (Appendix)
38
democratic form of government unless carefully structured. This awareness led him to write upon both the advantages and the disadvantages of such a fors.1
His view on equality coincided with those of other leaders already cited.
On Equalit
From, Considerations on the Nature and Ectent of the legis.lative Authority of the British Parliament L774 s
All men areas by nature$ equal and free s no ane has a right
to any authority over another without his consent a all
lawful government is founded on the consent of those who
are subject to its such consent was given with a view
to ensure and to increase the happiness of the governed, above what they could enjoy in an independent and unconnected state of nature. The consequences is, that the happiness of the society is the first law of every government 2
In a demoracy the value of trial tV juzr for the securing of justice received its due share of attention. To him the attainment of it was to be secured in the dual role played 17 the judge and jury* each to be complementary to one another in arriving at the facts of a case and applying the lar related to it.3
, p. 181. (Appendix)
2Bird Wilson (ed.) The Works of the Honourable James Wilson
(3 vols.; Philadelphias Printed for Broneon & Chauncey by the Lorenso Press, 1804) # 1II, 205-06.
ancdolph G. Adams, p. 192. (Appendix)
39
Roger Sherman
Although Roger Sherman was a member both of the Congress which produced the Declaration and the Convention which drew up the Constitution his writings shed little light upon his viewpoint with respect to the concepts. His early writings were mainly concorned with the impending separation from England, and later with the problems of the mall states in contention for power with the larger. He was not unaware, before the break with bgland, of the dichotmy inherent in ary stipulation that Parliament could legislate for the colonies in some areas but not in others. This observation made him one of the first to perceive clearly that refusal to suit to Parliament's law could lead only to a 1&d for complete independence* Apparently any application of the concepts would first imply liberty from the Crown. In a letter to Thomas Cushing, dated April 30, 1772 this observation is verified.
. 0 it will be needful for the people of the several
Colonies to be agreed in Sentiment as to the extent of their
Rights. # . It is a fundamental principle in the British Constitution and I think must be in every free State, that
no laws bind the people but such as they consent to be
Governed t7 therefore so far as the people of the Colonies are Bound by laws made without their consent, they must be
in a state of Slavery or absolite subjection to the Will
of others: if this Right belongs to the people of the
Colonies, why should they not claim and enjoy it?1
1
Roger Sherman, letter to Thomas Cushing, New Haven, April
30, 1772, quoted in Roger Sherman Boardman, or Sherman (Philadelphia: University of Pennsylvania Press# 1938), p. 1.
40
R, S Boardman cmpressee Sheraansa viewpoint as it was
evidenced in his writings prior to separation from England.
There was nane of the hazy concession that on certain subjects Parliament had a right to legislate, while on others
she did not--no groping for the place where the line should be drawn between the two. The colonial position was placed
thus early by Sherman on those God-given rights of men
where its only logical justification can be placed. And this was two years before Jefferson's declaration in his
nStauary View," that the co2anies were rightly independent
of Parliament.1
Extracts from sme of the essays of Sherman mention the
liberties and rights of the states, and of the people residing in
them. These essays were written in support of ratification of the
Contitution despite the omission of any sting of rights to cantrol acts of the federal government.
OnLbeb
. . On the other hand, if your interest and that of your rulers are the same# your liberties are abundantly secure.
Perhaps the most secure when their power is most complete. .
It is possible that in the infinite variety of events, it might
becam improper strictly to adhere to any one provision that has ever been proposed to be stipulated. At all events, the
people have always been pertoot37y ate without arg stipulation of the kind, when thg rulers were interested to make them safe$
and never otherwise.
Roger Sherman Boazdeans Sherman (Ph&ad3phias
University of Pennsylvania Press, 1936 p i8.
2
Roger Sherman, "A Countryman, III," New Haven Gazette.
Thursday November 29, 1787, quoted in Paul lester 1or, g
on the Constitution of the JUnited States (Brookyn, New Yorka HLstorical Printing Club 189J2J p. 222.
41
In the same publication the nimpeached sovereignty of the states is avowed# with the federal gowrment as proposed being in a position to Wesecure the rights and liberties of the people."1 The word "secure" as used here by Sherman appears to mean in the sense of being retained rather than being newly won. Again, as found in the same witIng, the word security* as applied to the rights of the people being amply safeguarded by the states, is in the sense of retention.2 It ay well be that recognition of the varying characteristics of the concepts in the several states, of which Sheman was well aware, resulted in treating them as generalities, too well known to require esposition.
Fron the Declaration to the Constitution
After the Deolaration and the adoption of the Articles of Confederation there developed an increasingly widespread awareness, between 1781 and 1787, that the Articles were failing to provide the performance initially expected of the. The need for revision had been recognized by some shortly after their adoption without a sufficient number of states evidencing willingness to submerge their differences in order to secure concerted action for arrection. An attempt by Maryland and Virginia to settle interstate camercial
Ap .Ibi, Thursday, Dec. 25, 1788. P. 214. Fully quoted in the Appenix.
.,p. 238. (Appendix)
12
difficulties in a meeting at Mount Vernon in 1785 provided the background for the later Constiutional Convention* The Mount Vernan meeting led to the Annapolis Convention in the following year, which though attended by only five of the thirteen states led to the resolution calling for a meeting in 1787 to revise the Articles. Thms, though unable to adjust commercial differences between the states the Mount Veron and Annapolia meetings were constructive in bringing about the Convention in ildelpia. In addition to the particular need of the states for camercial legislation and the reconciling of other vexing problems, the uprising of the farmers in western Massachusetts revealed internal difficulties which might well be duplicated in many of the other states.
The failure in performance of the Articles apparently was in areas other than those of individual liberty.
Significantly, in the newspaper articles and private correspondence calling for a change in government, there was
no complaint about infringement on the rights of individual
citizens. Criticism was directed at the existing form of goverment because of its inability to preserve order and
protect property, and because of its weakness in the fields
of both foreign and danestic affairs. The states alone
protected civil right the righte of property formed another
category, a category with many sealous guardians.l
On the whole then we may proceed upon the assumption that the individual states were at that time adequate repositories for safeguarding individual liberty, justice, and equality as these concepts
Robert Allen Rutlandt The Birth of the Bill of R to (Chapel Hill: University of North Caroliia Prees, 1955)0 pp. 106-07
143
were generally understood and accepted. That there were individual or particular group instances of lack of liberty, inequality and injustice is not to be denied, but it would appear that these were attributed to weaknesses in legislative control ty the central goverment rather than by intention of the individual states* In short, the problem of taxatian# sound money versus cheap money# interstate squabbles over trade, legal tender acts, the modifying of contracts and other ills were attributed to faults at the national rather than the intermediate levels of govermeat. The atate governmenta, being closer to the people, had in a number of instances to accede to the popular will of the people.
George Mason
In the Convention it would appear that the delegate chiefly concerned with the area of individual liberty was George Mason, aided largely by Gerry and inakney. WAhatever concern existed amongst other delegates was overshadowed by the larger aspects of creating a stronger political structure.
. Jefferson's absence conceivably left a responsibility on George Mason's shoulders, for both were devoted, experienced champions of personal freedca. . Other delegates
with experience in drafting either bills of rights or legislation protecting personal liberties were 111iam Samuel
Johnson of Connecticut# and George Read and John Dickinson
of Delaware. To none of these could Mason look for support
of his proposals for a bill of rights in the last mwents
of the debate, however, for the overriding topic of the
convention was the of the federal goverment-not
individual liberty.o
3lbid., p. 107.
14
Many of the propments of individual liberty and rights who were present at the drafting of the Dealaration were not delegates to the Convention. Of those who attended both assemblies the views of lilson, Franklin, and Sherman have been presented. Evidence of Sherman's trust in the iaviolability of state declarations of rights rests upon his opposition to Mason's expressed preference to have a bill of rights included in the Constitution.1 The views of Mason hardly require specifit reference through quotation to his concern for the liberties and equal status of the people. He was a member of the committee which drew up the Virginia Declaration of Rightes adopted on June 25, 1776 following its presentation ly him. He also aided in the formulation of the Virginia Constitution adopted on June 29th of the sme year.2 The withholding of his signature from the Constitution was based upon the lack of a specific bill of rights and his conviction that too much power had been granted to the federal government*
. . He wished the plan had been prefaced with a Bill of Rights, and would second a motion if made for the purpose.
It would give great quiet to the people; and with the aid
of the State Declarations, a bill might be prepared in a
few hours.3
James Madison, Journal of the Federal Convention, ed. E. H. Scott (Chicagot Scott, Fofesman aif o~ 13)# P. 717Helen Hill, George Mason, Constitutionalist (Cambridge, Mass.: Harvard University Pressp 1935), pp. 135-36.
;1adisons, P 717.
On the Saturday preceding the final adjournment on Monday, despairing of any action on a bill of rights, he staked his hopes for future favorable action upon the possibility of a second comvention, which of course never materialised.
* . This Constitution had been formed without the knowLedge or idea of the people. A second convention will know
more of the sense of the people, and be able to provide
a system mre consonant to it. It was improper to say to the people, take this or nothing. As the Constitution now
stands, he could neither give it his support or vote in Virginia; and he could not sign here what he could not
support there. With the et of another Convention,
as proposed, he could sign.
Elbridge Gerry
Of those who were still in attendance on the closing day of the Convention, September 17, 1787, Gerry was the only member representing a northern state, Massachusettes who declined both to sign and to support the Constituton. In this stand he found support from the state of Virginias Mason neither signing it nor undertaking to support it, and Randolph refusing to sign it but withholding his decision as to whether he would later support it. As a known champion of the liberties and rights of the people it is of interest to note the principal reason which Gerry advanced for not signing, as recorded by Madison. After specific reference to eight particulars in which he could not acquiesce he stated that even these objections could be overcome *if the rights of the citisens were not rendered insecure."2 This is corroborated in Gerry's 'Reply to a Landholder."
'Ibid., 74op. T. 2pp.
6
. that his LOrr'sfa7tiVe for dissenting front the
Constittion, was a fim persuasion that it would endanger the liberties of Amrica that if the people are of a dif.
ferent opinion, they have a right to adopt L~w Constitutio61
but he was not authorized to an act which appeared to him
was a surrender of their ibwrties.
Iuther Martin
Relatively few members in the Convention feared the enoroachment of the federal plan of government upon the sovereignty of the states strongly enough to desert the meetings. Martin was one of those who did. His concern was based upon the proposed legialative power of the central government acting directly upon the peoples thus in effect bypassing the states. Without the protsction of a federal bill of rights he was apprehensive of the possibility that individual states' bills of rights could be rendered void. In his letters published in The Maryland Journal, in which he upheld his conviction that a bill of rights was necessary, or that a second convention should be holds he expressed his fears.
. But the proposed constitution being intended and
empowered to act not only on states, but also immediately on individuals, it renders a recognition and a stipulation
in favour of the rights both of states and of men, not
only proper, but in my opinion absolutely necessary.2
And in the same vein, as the Convention progressed and he recognized the futility of interesting the bulk of the members in
1Elbridge Gerry, "Reply to a landholder, Iv" Massachusetts Centinelp Saturday, January 5, 1788, quoted in Ford* p7 2
2Madisons P* 365*
47
the liberties of the people, when the chief concern seemed to be the erection of a stronger national government, he ezpessed his fears for both the states and individuals.1
Hugh E1liamson
(he of the more vocal members of the Convention$ Ekllliamson later endorsed ratification by his states North Carolina. During the latter part of the Convention it ma his observation, with reference to no provision having been made for jury trials in civil oases, which opened the way for Mason to express the need for a bill of rights. Apparently Williamson having his attention quickly directed to the wide differences in state legislation upon this point recognized the inability of phrasing a statement to accomodate the differences* Despite the lack of other rights of the people to be enumerated he looked upon the rights in general as being sufficiently guaranteed by the states.
. The citizens of the United States have no more oo*casion for a second declaration of rights, than they have
for a section in favor of the press. Their rights, in
the several states, have long been explained and secured
by particular declarations, which make a part of their
several constitutions.2
That he was not unaware that the new document contained the possibility of errors in Judgment he conceded. He declaimed, however, that if it were so they were errors of that nature rather
1Tid., p. 36* (Appendix) 2Fords p. 398.
48
than such by intenan.1 He concluded that "It is a form of governaent that is perfect fitted for protecting liberty and property, and for cherishing the good citizen and hoest mantn2 Robert Yates
Robert Yates of New York was another of the delegates who left the Convention before the final drafting of the Constitution was accomplished, being unable to approve of the direction it had taken, together with lack of expressed instructions from his state to engage in anything other than the revision of the Articles. He wrote, "The mission of a bill of rights in this state LINew Yor7 has given occasion to an inference that the mission was equally warrantable in the constitution for the United States."3 This was followed by a detailed reasoning as to why the state of New York in its constitution had so Uited the governmnt as to prevent any necessity for a bill of rights. However, in his thinking, the analogy for the Constitution was faulty as the federal government held broad powers over the states which could conceivably be eercised contrary to existing state liberties.
* . But these reasons will not apply to the general governments because it will appear in the sequel that the state
governments are considered in it as mere dependencies,
existing solely by its toleration, and possessing powers
of which they may be deprived whenever the general government is disposed so to do.h
lbid*s P& 409e (Appendix) 21bdsp ^
3frobert Yates, "Letters of Sydney," New York Journals Friday, Jume 13, 1788, quoted in Ford, p. 299.
4bidop p. 30.
149
TWlliam Livingston
The political ideas of i.vingston and his support of the Constitution present a paradox. From early manhood he had used newspapers to air his view, and had established a weekly newspaper with two of his friends, of which he was the editor. IHa thoughts have been compiled by Thatcher from a umber of sources including letters and newspapers, the latter including the New York denn Reflectors Parker's New-York Gasette. and the New-York Meroun. During both the periods of the Revolution and the Articles, while governor of New Jerseys he continued to write essays upon contemporary subjects. The paradox appears when one considers his seeming preference for a weak rather than a strong government, with the exception of extended powers in critical periods.
a . He seems, however to have favored a weak rather than
strong goverment. This we should expect from his frequent
insistence upon the rights of the individual. It is borne out by his statement already quoted, "Goverment, at best,
is a Burden, tho' a necessary ones" by his strict construetion of his own powers as governor of New Jersey, and by his
suggested amendments to the Constitution, which provided
in part for a reduction of the power of the president*
Yet in times of emergency he was willing to have the government exercise great power.1
In Livingston's references to the people Thatcher observes that he obviously meant his references to apply to those who held the franchise, as separate from the rank and file who had no
fHarold Weley Thatcher, The Social Philosophy of William Livigstan (Chicago# Uniersity of Chicago Libraries, T930Ts
so
propertS or independent means.1 This reflected a different con. ceptiOn of equality as compared to that of Franklin and others during the Convention: it may perhaps be considered a natural carry-over from English practice combined with Livingston's upbringing as a member of a wealthy family. No such qualification is evidenced in his regard for liberty within the bounds of established society, each to enjoy liberty equally, subject only to self-Amposed restrictions of representative government for the enjoymont of4 it.2
Alexander Hamilton
An extreme point of view, fortunately not held by a majority in the Conventions was held by Hamilton with reference to the capabilities of the people. That certain rights originated with the people he was in accord, but questioned their ability to make sound judgments as to matters of policy and operation of government. It was not so much that he feared their intentions, but he did fear their reasoning in legislative or executive matters.
. . It is a just observation, that the people commonly intend the Plic od. This often applies to their very
errors. But ITWhr good sense would despise the adulator
who should pretend that they alwas reason r about the
means of promoting it.3
. p. 244i. (Appendix) 2Ibid., p. 2514. (Appendix)
3James Trualow Adams, (ed.), Hamiltonian Principles, Extracts frm the Writings of Alexander Hamilton (Bostons little, Brown, & company, 1925), p. 33.
51L
His reasoning, therefore, was that those who were 16e well endowed should choose the more capable to administer governmental needs. As a corollary to the above, the concept of liberty also suffered, for it would appear from his premise that the elite would by the grace of the voters better determine the extent of such liberty.
* Talk about liberty in the abstract did not great
interest him. He was too practical and it appeared foolish to prate uch about liberty when it seemed too unfortunately evident that man in the mass were not capable
of governing themselves.1
Hamilton's efforts to secure the strongest possible central government were based upon his feelings that the farther removed the main branches were from the influence of the people the better it would be.2 This was evident to such an extent that he feared the establishment of strong state governments, believing them capable of destroying liberty in the retention of too much power.3
John Dickinson
Despite his thinking that the Declaration was premature
Dickinson had been known for many years as an advocate of liberty. His 'Utters of a Farmer"'Petitdon to the King"'Declaration of Rights," and his writing of the Articles all attested his love for liberty which the colonists had enjoyed prior to regulative acts of England.
Iid., p. viii. 2Ibid., p. vi-vii. (Appendix)
1bid., p. x. (Appendix)
52
Following the passage of the Stamp Act he encouraged the colonists to a mode of non-compliance rather than overt acts of violence.
From "Addrws on Stamp Act
* . it appears to me the wisest and the safest Course
for you to proceed in all Business as usual, without taking the least Notice of the Stamp Act. If you behave in
this spirited Manner, you may be assured, that every Colony
on the Continent will follow the Example of a Pr since
elawar7 so justly celebrated for its Liberty.
That he relied upon support fran all quarters in denying tea the right of entry because of the tax is contained in his second letter upon that tax.
From "TAtters on the Tea Tat
. . Believe me, or Friend, There is a Spirit of Idbertr and a love of their Country among every Class of Men among
us, which Experience will evince, and which show &7 them
worthy the Character of free-born Americane.2
Before the topic of independence was spoken above a whisper, ex. cept by the more radical of the colonists, he was in agreement with thinkers such as Sherman, to the effect that as regards taxation only their own representative assemblies had a right to impose them. No attempt was made to draw a line between internal and external taxes, for both were equally unacceptable.3 It likewise did not escape his observation that despite the few articles taxed in canparatively small measure the acceptance of them could lead to the
'The Writigs of John Dickinsonp ed. Paul Isicester Ford
(2 vols. Philadeha Historical Society of Pennsylvania, 1895),
I, 2I4-2%5.
2 3 ** P* 6o bd9P 328*
53
establishment of a precedent which might lead to future high imposts at the discretion of Parliament. His writings throughout expose the fallacy of apr liberty worth having other than full liberty to legislate through representation*2 obtaining the Bin1 of ghtse
Before the Constitution had been ratified by enough states to insure its adoption Antifederaliet clamor for a bill of rights, or preferably a second convention, led Federalists unofficially to concede the first method as being preferable. In this way a trial of the new goverment could be gotten wder way and a more calm and dispassionate view taken of the deluge of proposed amendments. Mhen tempers had cooled and party strife had became less bitter a more reasonable attitude would produce more beneficial results. As the Constitution had been ratified without a bill of rights it remained to be seen how Congress would react to the proposed amendments. In the meantime, both North Carolina and Rhode Island having failed to ratify remained in a state of suspension fran the Union.
Of the twelve amendments submitted to the states by Congress, as a biL of rights, the first two which did not deal with personal rights were rejected by the states.3 Virginia# which together with
lbid*, P. 386. (Appendix) 2Ibid., p. 307-08. (Appendix)
Robert Allen Rutland# The Lirth of the 111 of Rights (Chapel Hills University of North Carolina PrISa g 9557) pp. 216-17.
New York had provided the most important opposition to the Constitution, was the eleventh state to ratify the amendments, on December 15, 1791, thus making them effective.
In the period from 1776 to 1787 there was an apparent shift in emphasis relative to what constituted the primary concern of the colonists. At the beginning of that period the liberty to be secured was that referred to by Dewey as "liberation from despotic dynastic rule." This represented political freedom, despite its economic origin in flaunting the tax program of Englands for it characterized arg law as being just which was contrary to the theory of representative government. Liberty, as used in the Declaration therefore signifies political independence, from which it would seem the colonists believed that equality and Justice would be natural concomitants. In support of this belief no enumeration of the concepts together with specific applications is given, apart from substantiating grievances against a mode of govermental legislation. This is understandable when one considers that under previously lax legislative and enforcement programs by Parliament the colonists had depended upon their colonial assemblies for the specific laws invoking the concepts. Even where royal governors were appointed by the King the people relied upon their legislative assemblies to mitigate the more arrogant acts of such governors. This the assemblies were oftentimes enabled to do through
their control of the parsestrings, for happily for the colonists sm of the royal governors were dependent upon the assemblies for their salaries and other expenses.
The delegates who approved and signed the Declaration were
actuated largely by the considerations of individual colonial liberties, as they applied to each colony separately, and not as applied to any union over and above the proposed states. They viewed any act which violated their generalizations of the "natural rights" of an individual as contrary to both the laws of God and of man.
By the time the Constitution makers gathered in Philadelphia in 1787 the emphasis had shifted to the need for a more satisfactory frame of goverment which could protect the fruits of their index. pendence. Of the total of fifty-five members who attended the Convention only seven had been present at the drawing up of the Declaration, The Articles had been tried and found wanting. Originally a Convention to revise the Articles it ended with an entirely new frame of government. To most of the delegates there was no need to elaborate on the attainment of liberty, equality, and justice for the people, as these had already been secured and the responsibilitoy for legislative enactment left to the states. The study has revealed the lack of specific concern on this point except on the part of the few who deemed the omission a major one* Though constituting a minority in most of the states, those who worked against ratification unless some guarantees protecting rights of
individuals were included instilled enough doubts to further their cause.
The application of the concepts differed quite markedly
in the colonies, and even after securing independence as sovereign states these continued because of differences in state constitutions, or in some cases to the colonial charters where they continued to be used. Nostalgic reference to the ancient liberties as possessed by those who lved when political independence was first secured, or shortly thereafter, without specific reference to a given situation is to indulge in phantasy. To be certain, what they secured promised to be far better than arything previously obtained, with the added prospect of being able to gain more through a now type of representative government. In considering that period of history# who today would welcome liberty that could be sirouscribed by the debtor's prison, to an equality in suffrage conditioned by property or other valuable possessions, and justice at law which prohibited concerted action by individuals in the right to bargain collectively with employers? Other conditions equally unacceptable to us today were by many then considered a normal viewpoint of what constituted a just degree of liberty, equality, and justice. Yet, at that time only those who visualized a broader meaning of the terms, coupled with some reforming seals, questioned that the ultimate goal had been reached. Differences between the abates themselves led to improvements, for where the people of one state enjoyed liberties not found in another the tendency was for such liberties to
57
spread, after a trial period had proved the worth of them in the innovating state.
It is true that the concepts have in all periods of history had certain definite meanings, but in addition they have always contained an indefinite amount of symbolism. The danger in assessing them without some proof by way of emple is in transferring both the present factual and symbolic values to a period wherein the people were not cognisent of such meaninges.
CIAPTER III
INSTANCES OF SIGNIFICANT DEVELOPMENT, 1776-1860
Concepts which embrace generalizations that vary with the passage of time can prove particularly troublesome. When specifies are required to satisfy a meaningful evaluation for a definite period of time there may be involved differences arising. A generalization, rather well accepted, and presumably capable of a break-down into particulars, may offer difficulties when the attempt is made, Still further difficulty may be experienced in applying a concept to a period in history far removed from the present. Such difficulties form a calculated risk in azn attempt to reconstruct the past. Analyzed contemporary viewpoints may and do vary with respect to particular events in history, but comfort may be gained in that some degree of evaluation may later secure fairly universal acceptance, apart from individual bias and avowed partisanship of the past. In the following selections the major emphasis has been to interpret outcomes rather than to present a full development of antecedent causes.
Social and PoliticaL
Forces opposed to democracy were weakened in the wider distribution of land following the securing of independence.1 Seizure of
I
John C, Miller, Triumph of Freedop (Bostom Little, sroia, & Co., 1948), pp. 650-52.
58
59
Loyalist property, changes in laws of inheritances and the opening of lands to the West, all contributed a share. But along the Eastern coast class distinctions resting upon heredity and wealth were opposed to arvr notion of economic and social equalization. Amazingly, and in contradiction to the concepts of liberty, equality, and justice, those who had by reason of the Revolution improved their economic condition were among the stanchest upholders of the traditional class lines. It was clear that the announcement of democratic idealism was a long way from accomplishing democratic actions. This is part of the background which should be borne in mind when one is assessing the early years of the country's growth, and the reactions to developments influencing the concepts.
Following the Citizen Edmond Genet debacle, in which he found support in neither political party for a war with England the Whiskey Rebellion of 17914 provided the impetus for a clash between the two parties ovr individual rights. To Hamilton it furnished the opportunity to blame the Rebellion upon democratic societies fo* menting feeling among the farmers. Washington's support, in allow. ing the condemnation of democratic societies, was evidently ill* advised, for subsequent pu lic support favored Jefferson and Madison in upholding "the value of the freedom to organise* In the Whiskey Rebellion the national government's excise upon the farmersl
1
Adrienne Koch, Jefferson and Madison The Great Coaboratio (New Yorks Alfred A. Knopfs195,pp.
60
converted corn was received with resentment by agrarian generally. Specifically, Hamilton's measures appeared to favor the well-to-do and to penalize the agriculturalists. The farmers of western Pennsylvania could still be classified as pioneers, with the pioneer's conception of liberty being an absence of restraint, That they oftentimes lacked the means of paying the excise prior to the sale of their product made the tax doubly obnoxious. It is understandable that to them their efforts to make a product more readily transportable were being penalized by a non-syMathetic government, which by force of arms implemented the new law. As necessary as the action may have been to establish the new strength of the national government the uprising represented a difference of opinion as to what constituted liberty.
The Alien and Sedition Acts are oftentimes considered to have been the first serious attack upon presumably established rights. No expression of individual opinion relative to the intent of the Acts could match the propaganda possibilities engendered by them. Controversy was unlimited in ascribing them to be directed against the Frenchp the Irish, and/or the Republicans. Free speech and freedom of the press gave way to both the real and supposed dangers facing the country; whether real or imaginary seemingly depended largely upon one's political affiliation. The crisis in foreign relations which led to the passage of these acts had been in the process of coming to a boil for several years largely through political and personal rivalries, Thus, from the years 1798-1801#
61
under the cloak of national security the Federalists were enabled legally to stifle Republican protests of unconstitutionality. By November in 1798 of twenty-one printers charged under the Sedition Law not one was a Federalist.1 Whether by principle or affectation the result was to develop lines closely following pro-French or pro-British sentiments respectively held by Republicans and Federalists. It would be naive to suppose that no fears were expressed prior to this time respecting the continuance of a government by reason, rather than the development of one by force. Well known as Jefferson, Madison, and others were in expressing belief in the ability of man to rule himself, others, equally well known were of a decidedly monarchical bent. The latter in. eluded such important Federalists, then in power, as Hamilton, John Adams, and Fisher Ames. The leaders on both sides were aware of the imWortance of precedent setting under a new government, and aristocratic political theory was pitted against democratic political theory. The threat to rights is observed by Koch as follows
A society that could only be governed by force would
naturally spell the end of the liberties the American Revolution had won for Americans, When Jefferson and Madison
fought tooth and nail against Hamilton' a financial policies,
and against his encroachments upon the jurisdiction of the State Department and elsewhere in the administration* they
were acutely conscious of the large stakes they were protecting.2
1
Claude G. Bowers, Jefferson and Hamilton, The Struggle for
Democracy in America (Bostons Houghton Mifflin Campaa7s 1925), p. !O.
2
Koch, p. 139.
62
The extremes to which prosecution under the Sedition Law were carried may best be exemplified by the case against David Brown. An itinerant laborer from Bethleham, Connecticut, he had in his wanderings spent some time in and about Dedhan, Massachusetts. In that area he was known to have deplored the undemocratic tendency of the Sedition Law, preaching and distributing his personal witings to that effect, How much thc preaching and tracts of an illiterate laborer could influence others may be open to questions but in some way he attracted the unfavorable attention of Fisher Ames who recommended legal action against him. Brown's crowning crime was to assist in the erection of a liberty pole at Dedbam, having upon it a sign bearing "No Stamp Tax, No Sedition." Tried in Boston, without benefit of moneyed friends, Brown was sentenced to eighteen months in prison and a fine of $480.00. Two petitions to Adams for Presidential pardon were refused or ignored. After two years in jail he was finally given a pardon by Jefferson.1
The part played in the prosecution of David Brown by Fisher Ames is worthy of note, for zes was of the school who did the founders of the Federalist party little credit, and ultimately inadvertently aided in the downfall of his party. Writing in 1805 on "The Dangers of American Liberty" he declared his inability to accept republican rule by majority vote of the people.
IJames Morton Smith, "The Federalist "Saints" Versus "The Devil of Sedition": The Liberty Pole Cases of Dedham, Mass., 17981799" New England Quartery (June, 1955), pp. 198-215.
63
They are certainly blind who do not see, that we are
descending from a supposed orderly and stable republican
government into a licentious democracy, with a progress
that baffles all means to resist, and scarcely leaves
leisure to deplore its celerity.
. .* * * * * *
A government by the passions of the multitude, or,
no less correctlys according to the vices and ambitions
of their leaders, is a democracy. We have heard so long of the indefeasible sovereignty of the people, and hav admitted so many specious theories of the rights of man,
which are contradicted by his nature and experience, that few will dread at all, and fewer still will dread as they
ought, the evils of an American democracy.1
The Republican answer to the Alien and Sedition Laws, other than less-well supported measures by individuals, were the Kentucky and Virginia Resolutions. Jefferson and Madison in securing the introduction of these resolutions were primarily concerned with the abridgement of personal rights, hitherto supposedly guaranteed by the Constitution against national infringement. To hope for favorable reception in Federalist strongholds was too optimistic, but the action of two states in presenting them for the legislative consideration of other states might secure public enlightersent an the subject. Results in this respect were disappointing to the Republicans, but the result was a more clearly defined drawing of the lines between the two parties. The Federalists upheld the laws as being constitutional, and geared for national protection in a state of near-war which cou2d break into a state of declared war at any time.
1
Henry Steele Commager (ed.) Ideas in America (New
York Harper & Brothers, 1951), p. 20
64
The Republicans claimed the laws unconstitutional as an infringement upon guaranteed rights.
The turn of the century in 1800, eleven years after the
adoption of the Constitutions and but a scant nine years after the passage of the Bill of Rights, had witnessed differences of opinion both as to the philosophical direction of the government and the definitive exercise of rights.
Events leading up to both the Fabargo Act and the NonIntercourse Acts enacted under Jefferson in an unsuccessful attempt to stop EnIglish and French depredations upon American shipping, and therefore international in character, may have seemed a far cry from national concern regarding the guarantee of individual rights. Nontheless, in addition to the disregard and refuting of a sovereign power's right to enact citizenship and naturalization laws for itself, the actual acts of physical violence and force were carried out against individuals. These acts were clearly violations of the concepts upon which the United States had been founded. That they were violations at the national level, as against a sovereign country, did not mitigate the actual injury to Individualsa nor in theory deny to them the constitutional protection to which they were entitled. Political and diplomatic counsel at the national level indicated the setting of a course involving self-denial, delaying the alleviation of individual rights to a more opportune time. However optimistic the outlook of those who promulgated the concepts,
65
the superior strength of two European nations vitiated their application beyond national boundaries.
In the years from 1789 to 1809, embracing the theme of three presidents# conditions which challenged the definitive and symbolic meanings of liberty equality, and Justice had been encountered. In each instance no near unanimity of opinion supported the actions taken with reference to the concepts. What ws done had been done in the effort to meet conditions facing a government without firmly established precedents, and consequently involved differences of opinion largely dependent upon one's philosophical viewpoint and individual involvement To the farmers of western Pennsylvania the ecise upon whiskey threatened their livihood and way of life, without tangible and apparent benefits. To the trappers in more isolated areas, the fisheasn of the coastal areas, and the shopkeepers and traders of the more heavily populated towns and cities it had much less significance, other than a demonstration of newly found strength residing in the national government. To the latter groups no violation of the conception of liberty as being an absence of restraint was being threatened, for during that period the everadvancing frontier was peopled by those who held that concept in highest esteem. Later, when the geographical frontiers were exhausted, the same concept was to be embraced by those vbo created new frontiers in business and industry.
The Alien and Sedition Acts were of significance to far
greater numbers than had been affected by the whiskey excise. Here
66
ws a clear-out demonstration of the power of a government effookve~y to control outspoken criticism of its actions. That it was done under the contention of a national emergericy did not allay the feared of champions of liberty. The record of Indictments under the Acts was olearly partisan in the dispensation of equality and justie. Per hape no other single act of the Federalists arrayed so many divergent political bed-fellows against them.
To shipowners, exporters, and importers generally the iabargo and Non-nterocurse Acts were ill-advised, self-punishings and as events proved, non-effective in securing the desired results. As htailiating as it was for ship captains to submit to search and impresament of their seamen the stifling of trade by the Acts was more obnaious, spelling ruin for many owners and traders. Partioularly vehement in their opposition were the New England states, the stronghold of the Federalists. Wth the exception of Vermont these states voiced their disapproval of Jefferson's Acts, and the proposed War of 1812, by giving all their electoral votes to Clinton rather than to Madison, Jefferson's choice. In the prosecution of the war the antagonism of New England to it was to be keenly felt. From the Acts to the declaration of war in 1812 the concern over infringement of individual rights had been subjugated to the larger orders of national integrity and expansionist desires.
The observations of Madison prior to the adoption of the Constitution and subsequently as President, 1809-1817, reflect a keen perception of the nature of governments and both the virtues
67
and failings of the people. He recognized the danger in either too much or too little government, as well as the danger in too little government coupled with too much liberty accorded the people, particularly where the people involved were those of little restraint. His observations were expressed in a letter to Jefferson, dated October 17, 1788.
It is a melancholy reflection that liberty should be
equally exposed to danger whether the Government have too much or too little power, and that the line which divides
these extremes should be so inaccurately defined by
experience.]1
In the same year he also wrote to Jefferson commenting upon a bill of rights for the Constitution in favorable terms, although allowing that certain rights in question were already protected by the enwueration of the federal powers.
My oan opinion has always been in favor of a bill of
rights provided it be so framed as not to imply powers not
meant to be included in the enumeration. At the same time
I have never thought the omission a material defect, nor
been anxious to supply it even by subsequent amendment, for
any other reason than that it in anxiously desired by others.
I have favored it because I supposed it might be of use,
and if properly executed could not be of disservice,2
Maay years later in writing to Edward IAvingston he commented upon the increasing separation of church and states being in agreement with the advisability of it.
Notwithstanding the general progress made within the two
last centuries in favour of this branch of liberty, & the
1
Saul K. Padovers The Complete Madison (New Yorks Harper & Brothers 1953), p. 255.
2
68
full establishment of it, in some parts of our Gountry,
there remains in others a strong bias towards the old error,
that without some sort of alliance or coalition between
Govt & Religion neither can be du3y supported. Such indeed
is the tendency to such a coalitions and such its corrupting influence on both the parties, that the danger cannot
be too carefully guarded agat. . and I have no doubt that every n example, will succeed, as every past one has done, in showing that religion and Govt will exist in greater
puritar, the less they are mixed together.
And, expressing himself with regard to the concept of equality.
Equal lam protecting equal right, are found as they ought
to be presumed, the best guarantee of loyalty & love of
country; as well as best calculated to cherish that mutual respect & good will among Citisens of every religious donomination which are necessary to social harmony and met
favorable to the advancement of truth.2
His philosophy upon the ends of government in 1788 led ten years later to his recognition of the threat to its fulfillment represented by the enactment of the Allen and Sedition Acts.3
Economic Issues
The idea of economic freedom as an inherent right involving the concepts seems to have been regarded as concomitant to the demooracy that followed the securing of political independence. As in areas of social development the concept of economic freedom was destined to develop many new facets involving divergent viewpoints as to what constituted liberty, equality, and justice. In perhaps no other field of human endeavor can be found such reversals in considered judgments as occurred in the relationship of the employer
lbid., pp* 308"0. 2 *id., p. 311*
** p. 342. (Appendix)
69
and the employed. From a highly persnalised relationship between master and worker it developed into a highly impersonalised arrange. aent. Conourently, from a situation of high mobility in freedom of choice as to acceptable conditions of work it developed that in many instances no such freedom of choice existed.
A history of the labor movement in this country rests its roots not in the popularly thought dissatisfaction with labor on ditions but rather in the pride of the craftsmen to improve their prodnot through adequate standards.1 Doring the period from 1789 to 1816 conditions which excluded many imports, the Embargo and Han.Atercourse Acts and the War of 1812, gave impetus to the do. velopment of crafts and the elevation in status of the craftemen. Benefit societies of both masters and journeymen had existed since the early 1700's, but not until the 1790's was a clear change-over made from the charitable and benefit type to that of the bargaining type. Cabinetmakers, printers, and shoemakers with varying degrees of success formed such societies after that date until the legality of such combinations was adjudged an illegal conspiracy in 1806.2 Mhat the masters could do to protect their price structure was not accorded the journeymen in their wage demands. The findings against labor organisations in Philadelphia were followed by similar cases in New York and Pittsburgh. Courts invoked the English common law
Norman de Ware labor in Modern Ihdustrial Society (Bostonu D. C. Heath & Co., 19353# p P 126y27*
70
to punish craftsmen's demands for higher wages through strikes by labeling them a conspiracy to raise wages to the detriment of other. Spapathies of a oamunity were in the main on the side of the owners whose prosperity was reflected in tangible gains to the populace as a whole. The association of employers in the protection of property rights was regarded as perfectly property whereas the employee's use of organisation to secure demands was frowned upon as being an attack upon property rights. Individual liberty was then regarded as being fulfilled in the employer's right to offer wages for a particular task, and the employees' right to accept or to reject as they saw fit. In retrospect it must be bome in mind that during the early 1800 's the labor of many craftsmen was done in the homes or in small shops where wages were arrived at largely through personal agremnt. Comamons, in his writing upon the history of labor in the United States, summed up instances of organisation as follows a
In brief, the period to 1820, may aptly be characterized
as the dormant period. A continuous and persistent effort
of wage-earners is prevalent in but two industries.1 6ioemakers and printorls
And, in like manners a suanmation upon wage agrenemnts a
Msat approaches the modern notion of collective bargaining developed as incidental to the practice of subitting
a price list to individual employers. Neither method,
however, supplanted the other during this period. Indeed the prevalent mode was still that of negotiating with individual employers.2
john R. Comnons and Others, History of labour in the United States (New York : Macmillan Co., 191:3), Vs II*
2Ibid., p. 121.
71
According to Professor Ware, "Of the sixteen conspiracy
oases between 1806 and 1840 brought against workers, thirteen were against shop craftsmen and only three against factory workers.'
It would be a mistake to associate trade unionism with
power machinery, for early beginnings in factories were of the hand craftsmen type. Nor was the verdict of the courts always in favor of the employers for there was developing an awareness that the charge of illegal conspiracy did not apply to all cases. In the Thompsonville carpet Weavers Case, 1834-1836, three weavers tried for conspiracy were found not guiltir by the Suprene Court of Connectiout, which upheld the verdict of the Camon Court.2 A few years later, in 1862, the Supreme Court of Massachusetts relaxed certain conditions pertaining to the rule of conspiracy.3
I the two decades prior to the Civil War the spirit of reform was such that the divergent plans for bettering the world often negated the original aims of labor unions, nalmy, hours, wages, and conditions Grandiose schemes for balancing agriculture against industrial, socialistic experiments in place of the individualism of deocracqs cooperative shops and stores, reform by political action, humanitarian issuss with slavery being foremost, all contributed to a lack of unanimity in approaches to alleviate what were considered to be unjust conditions. However, other than
p. 143. 2bido p. h9.
3John D. Hicks, The Federal tUbion (New York s Houghton Miftlin Co** 1948)o p. 481.
72
during the panic of 1857 trade union organisation spread rapidly throughout the country between 18M7 and 1860.1
Oense1l27 speakings the periods of hard times saw even
contemporary understandings of the concepts of liberty, equality, and justice violated. In the period before the Civil War the country was to witness three such major periods following the stagnation of trade and industry brought on by the Embargo and Non-Intercourse Acts. During and following the Panic of 1819 the organisation of workers was impeded both by conditions of trade and by the antagonism of property owners and the courts. The liberty of the employer was also that of the eamploYed, but in addition the employer was accorded the additional privileges accorded property rights. Despite the difficulties under which they organized the workers did succeed in the latter 1820's and early 1830's in making some discernible headwaq, only to founder in the depression of 1837. Other than for partial relief the backbone of the depression was not broken until the suaer of 1843, by which time the craft organizations were wiped out.2 From that time until the Civil War, broken only ty the Depression of 1857, labor organisation in quest of a realization of the democratic concepts was to be formed from an entirely different quarter* represented by the growing numbers of those engaged in the factories of the Industrial Revolution.
Iare, pp. 165-175. 2mid. p. ]6.
73
Educational Improvements
As an accompaniment to workers' endeavors to better their
conditions, but perhaps oftentimes overlooked as such$ was the struggle to secure improved free public education. Early organization of the craftsmen and htenanitarian reformers gave recognition to the need in order to alleviate the wide spread in education between those who had the ability to pay for it and those who did not. A further inequality was found in the use of child labor in the factories a condition which depressed wages aid denied such children the opportuaity of education, to say nothing of an opportunity to enjoy a natural childhood. The national government had early placed itself on the side of free public education, for as far back as 1785 and 1787, under the Articles, the Northwest Ordinances had made land provisions which applied to the new western states* This did not meant however, that adequate provisions were to be found in the older states, for during the first half of the nineteenth century provisions for education lagged behind the growth in population and the developments in industry. leadership was lacking to improve public school systems until the time of such devoted men as Horace Moan, Henry Barnard, and Thaddeus Stevens. Horace Man$ in particular, not only revived interest and secured reforms in the public school system of Massachusetts, but through hi writings also secured favorable action throughout much of the country. HLs"Annual Reports" did much to spread ideas concerning the philosophy and aims of edu-* cation. The concept of equality as a possible actuality has come
74
nearer to realization in the public schools because of the efforts of those who dedicated much of their lives in the field. Mann's conception of how best to reconcile the antagonisms of capital and labor resided in his philosophy of reducing their class interests through eduation* The following is an extract from his final '"nnual Report!' on the subject,
Nor surely nothing but universal education can counterwork this tendency to the domination of capital and the servility of labor. If one class possesses all the wealth and the education, while the residue of society is ignorant and poor# it matters not by 16 at name the relation between them
may be calleds the latter, in fact and in truth, will be
the servile dependents and subjects of the foruer. Dats if education be equally diffused it will draw property
after it by the strongest of all attractions; for such a thing
never did happen, as that an intelligent and practical body
of men should be permanently poorly
Religion and ativism
The English settlements in the New World involving the issue of religious freedom may lead to assumptions by sane that complete freedom of religion was the aim. Escape from religious persecution was not, however, followed by religious tolerance. The early set. tlers were as intolerant of dissenting sects as those in power in the countries from which they cams. 3h addition to control by the alliance of church and state the persecution of minority groups, particularly of Jews and Catholics, was rife throughout the first half of the nineteenth century. This was not a new phenomenon for
1Hey Steele Conmager (ed.), Living Ideas in America (New York Harper & Brothers, 191), p. 567.
75
in going back to the time of the Revolution discrimination was general throughout the colonies, with New York denying both groups the privilege of suffrage.1 Billington in his study states, "r the end of the Revolution seven states, Massachusettes New Hampshire, New Jersey, Connecticut, North Carolina, South Carolina, and Georgia, specified Protestant officeholders, and other states inflicted additional liabilities on Catholics in their constitutions. "2 Between that time and 1820 such a tolerant attitude developed that the philosophy of Jefferson and Madison swayed some states into making constitutional changes removing some of the inequalities.3
During the 1820's a resurgence of anti-Catholicism followed the rapidly aoelerated inmgration from Europe# particularly that from Ireland and Germany. Though these settlers were capable of rapid assimilation in the frontier areas, where the needs of manpower were many, the same was not true in the larger towns and cities along the seaboard. Rapidly increasing pauper rolls, with attendant costs to those camunities, were shown to be incurred largely through the care of aliens, many of whom had impoverished themselves in paying for their passage to the United States. Nativism, which had subsided during the earlier years of the century,
1Oemond K. Fraenkel, Our Civil Liberties (New Yorks Viking Press, 1944), p.51
2Ray Allen Billington, The Protestant Crusade 1800-1860: A SM of the Oriins of American Nativism (N W Yorki RInebrT ani deFn Thie, 1934 p. .1
31bi.s pp. 22-33. 41bi*$ pp. 35-36.
76
found in these conditions the needed fuel for revival. Intoleranoe, upon which nativism thrived, reached proportions which gravely threatened concepts for which the country had been lauded, and which had brought many of the immigrants to her shores.
The same intolerant spirit was represented in the thirty religious newspapers which had been founded by 1827, all of thus distinctly anti-Catholic in tendencys with regular sections or weekly articles devoted to attacks on Popery.1 Despite the wide distribution of these tracts fanentng intolerance and violence the adherents of them could not hope to achieve their aims through religious antagonism alone. Fundamentally desirous of securing political control, the nativists could enhance their possibilities only through enlisting a larger segment of the population to their standards, A possibility of enlisting such support resided in turning the laboring classes against immigrants as a whole.
An effective propaganda which developed in the latter
part of the 1830's not only aroused Americans against inmigrants but also demonstrated to their satisfaction that
an alliance listed between these foreigners and the Catholic church to bring about the destruction of the United States. Thus the two phases of nativistic activity were
united and were from that time inseparable.2
In support of this the writings of Samuel F. B. Morse titled "A Foreign Conspiracy against the liberties of the United States," did much to strengthen the nativist stand.
l~bde Pe44 21bid., p. 118,
77
During the decade before the Civil War the country was to witness the spectacular rise and fall of a political party which advocated discrimination against foreigners. Despite this avowed discrimination the membership of foreign born Protestants and the exclusion of Catholics indicated its religious bent. Known as the American, or Mow Nothing, party it drew from mag diverse elements in all parts of the country. Its beginmings have been attributed by Willington to the secret society formed in New York in 1819 known as the Order of the Star-Spangled Banner.1 Nichols cemented upon the Whig attachment to the new political force for actual strength against the Denocrate and Republicans.
Throngs of YAtigas North and Southo joined the secret
political organisation, the Order at the Star-Spangled
Banner, caseony called the now Nothings, which campaigned
in local and national elections as the American Party.
Its platform was 100 per cent Protestant Americanism, and
its spokesmen demanded that Catholics and foreigners be kept from politics and public office. "Americans must
rule America."2
The organisation's objectives were clearly stated in the constitution of the National Council.
The object of this organisation shall be to protect
every American citizen in the legal and proper exercise of all his civil and religious rights and privileges; to resist the insidious policy of the Church of Hon, and all
other foreign influence against our republican institutions in all lawful waysl to place in all offices of honor, trusts
* pp. 380-81.
%W Franklin Nichols The DsLruption of American Democraoy (New Yorks Macmillan Co., 19 8), p. 19.
78
or profit, in the gift of the people, or by appointments
none but native-born Protestant citizens, and to protect,
preserve# and uphold the inion of these states and the
Constitution of the same.
The membership secrecy of the how Nothings led to initial political successes which startled their opponents. loal and state victories in 1854 and 185 led to expectations that uch could be accomplished at the national level, even as optimistic as placing their candidate in the White House in the 186 election.2
The sectional dissensions during their rise and fall gave the Know Nothings, a strong minority party, an exaggerated sense of their political importance. In contrast to their local and state achievements success at the national level was not fortheaming, for neither in the Democratic nor the Republican ranks could they secure support for their anti-4amigrant proclamations. The desire of a majority in Congress was to alleviate and to reduce pauperism, crime, and riots engendered by religious factions, but the cure offered by the Know Nothings ws clearly other than that hitherto considered to be consonant with the broad American concepts of liberty, equality, and justice to all.
Its Luw Nothing part principles were inimical to those
on which the American nation had been founded; its demands
were of a sort that could never be realized in a country
constituted as was the United States. Thus the party's
success contributed to its failure, for its leaders once in
power, were helpless, and the people, realizing this, begi to desert the organization as rapidly as they had joined.
1BLllington, p, 386. 211dy p. 389.
31bid.p p. 417.
79
The htow Nothing choice of Fillsore as their presidential candidate, coupled with the rising slavery issue, spelled the end of the party, for in their desire to achieve national growth they deserted their own tenets to plead for national unity.
Early Inequalities at States level
During the period already covered, attention has been focused largely upon events at the national level. At this time it may be enlightening to view briefly some applications of the concepts at the states level. Examples which follow were not exclusively held by the states mentioned, for like conditions were duplicated in many of the states. Such conditions may be classified as failure or lag in granting Constitutional freedom downward, but at the same time it ot be remembered that the states were under no compulsion, in the exercise of their soverign powers, to grant such freedas.
In Massachusetts the concepts as they applied to suffrage and religion were violated until well into the nineteenth century. That is to say, they were violated only with reference to present day meanings Restricted meanings and applications were wholly in accord with accepted viewpoints of those days. Not until a state constitutional amendment of 1833 were the church and state separated, removing the church from support through taxation. Religious tests for the holding of most public offices had been done away with in 1820. At that same time, property holding as a requisite for voting was also rescinded. However it was not until 1840 that for
80
officeholding in the General Court and the Governor's Council that property holding was done away with as a conditional factor.1 The property holding clause as a requisite for holding the highest political positions in the state would bear out a contention that it created a political oligarcly rather than a political democracy. According to the dates given above referring to religion# freedom of religion, as viewed today with respect to the separation of church and state, was thus not wholly achieved in that state until 2140 years after the landing of the Pilgrims, and fifty-one years after the passage of the Bill of Rights. Also of interest as an example of class legislation was the Fifteen Gallon law passed in 1833. Under the provisions of this law no less than fifteen gallons of liquor could be sold at a times which practically eliminated the lower economic classes from the market. Those who had been unfavorably legislated against showed their disapproval of this bar to equality in the next state elections.2
Rhode Island lagged behind Massachusetts in its rescinding of the freehold qualification for suffrage, which had been established in its constitution. Not until 1812 was it abandoned, and then only in part, for a freehold qualification of $1314.00 worth of property as still imposed upon naturalised citisens.3
lWilliam J. Reid and Herbert Go Regan, Massachusetts, iso and Government of the Bay State (New Yorks Oxford Book Co., 1956), pp. 78-9.
2Tid., p. 81.
3Chilton Williamson, "Rhode Island Suffrage Since the Dorr War," New England Quarterly (March 1955), pp. 314-50.
81
During the same period many of the states of the Old South had made progressive reforms in political and religious rights. As a result of the constitutional conventions during the 1830's, property qualifications for voting had been removed by a majority of them. Like qualifications for offiosholding had also been removed by all but South Carolina and Tonistana.1 In the South the principle of separation of church and state was earlier established than in New England. In Virginia, largely through the efforts of Thuas Jefferson, it had been accomplished as early as 1786.
Between the aid 1820's and the 1850's a demand for reform in many varied avenues swept the country# A practice which had long been denounced was that of imprisament for debt. The practice was particularly reprehensible in that mao were jailed for failure to pay small sums, which failure was often due to sctenuating circumstances such as illness, failure to find remunerative work, or like reasons beyond individual control. The evils of the practioe subjected many honest but unfortunate people to associate in prison with law breakers and criminals of a different ilk, and deprived society of the possible benefits of their productivity. According to Styram, "an average of 75,000 poor debtors were being imprisoned amnually-half of them for less than twenty-dollar debts.n2
1frecis Butler Simkins, A iWatory of the South (Now Yorks Alfred A. Knopf, 1953), p. 108.
2Arthur Styron, The Last of the Cocked Hats (University of Oklahmaa Prees, I5), p. 357.
82
Through the 1830's and 1840's some of the harsher measures were repealed in assachusetts, but it was not until 1855 that such laws were repealed in total there. Elsewhere throughout the states the practice was continued up to the time of the Civil War.
Traditional class lines restricted the application of demooratic idealism to those of less fortunate cireatanoes. Other than in frontier areas the defenders of such traditional olass consciousness gained strength in the increased amber of those who acquired property. As early as 1794, even in the secondary frontier areas, the conception of liberty as being an absence of restraint gave way to the conoeption of regulated restraint. Political acts such as the excise upon whiskey and the Alien and Sedition Acts, enacted before 1800, seriously challenged the ideas of many as to their definitive rights. Subsequent acts restricting foreign trade gave rise to a separation movement in the New England states.
As the economic condition of workers continued to be subjugated to the government's greater regard for property rights, implemented lV court decrees and injunctions in favor of owners and employers, there developed an increased dissatisfaction in labor ranks* This dissatisfaction was augmented in the times before the Civil War tr three major periods of depression. Concurrent with ands for improvement in the conditions of labor was that of interest in improved education.
83
Religious persecution of minority groups, spurred on by the political platfom. of the American party# was rampant in the years just prior to 1860. The avowed discrimination by that party led to its downfall, as national support could not be enlisted to further measures thought contrary to the American way of life.
Confusing as the application of the concepts was at the national level it was further complicated by the lack of uniform application at the state level.
CHAPTER IV
INSTANCES OF SIGNIFICANT ]VEWPMENTS, 1861-1940's Suspension of Habeas Corpp
Comparable to the indignation aroused by the Alien and
Sedition Acts of more than sixty years earlier was that Occasioned by the suspension by LIAnooln of the writ of habeas corpus enacted during the period of the Civil War* Despite the criticism attendant upon the suspension, and in clear recognition of its importance in the ourtailmnt of liberty, Incol was faced with the stark ftot that not to do so would jeopardize the war effort. During the war Lincoln demonstrated that the suspension of the writ was not part of a crusade to curtail all libeies Newpapers adjudged
by General Burnside to be aiding the Confederate cause, and can* sequently closed downs were ordered reopened by LInooln. A like action by Secretary of War Stanton, carried out by General Dix# was also overruled by Idncoln,1
In the main* the suspension of habeas orps was not to
carry out prosecution to the letter of the law8 but rather to acoplish the mediate imprisonment of those suspected to be dangerous citizens* Arbitrary arrest and confinement achieved the purposes
1Fraenkelt P. 34*
84
85
of the amecutive branch.1 Such arbitrary actions could be justified only under the plea of protecting the public safety, at a time when the ordinary course of fozaal indictment and trial could not be speedily accomplished. Obviously, the difference between the nu*ber of arrests and the relatively few cases brought to trial would substantiate such a contention.2 At the same time the failure of Congress to enact legislation curbing the suspension by Inoolns and later approving it, was indicative of their lack of desire at the outset to challenge his peremptory powers, or to enact suitable legislation to control the Innediate situation.
Through the years divergent opinions have been expressed regarding the suspension of any part of the Constitution during periods of emergency. From the highest court Mr. Justice Davia in 1866 expressly refuted the doctrine in "No doctrine, invoking more pernicious consequences was ever invented by the wit of man than that any of its fLonstitutio!7 provisions can be suspended during any of the groat exigencies of govermuent.*3 And in contrast, Mr. Justice Sutherland in 1931 wrote "To the end that war may not result in defeat, freedom of speech may, by act of Congresas, be curtailed or denied so that the mozals of the people and the spirit of the amy ay not be broken by seditious utterances.*
J. G. Randall, MIncoln The Liberal Statesman (New Yorks Dodd, Mead & Co., 1947)s p* 126.
2lbid.0 p, 126. 3fraenkel, p. 22. 41bid.
86
In the same opinion many other rights were placed in the same category as freedan of speech.
As with a umber of Presidents who have taken strong measures to oppose an immediate danger, Lincoln has sometimes been characterized as a diotators particularly for the suspension of habeas c o Yet, that action was in contrast to his known conservative and liberal expressions and actions* His views upon liberty, equality, and justice were known from spoken and written pronouncements, and his stand against nativism and slavery upheld them. Prior to his becoming President his sentiments were with the German citizens of Illinois, included by the nativists in their anti-alien attacks. Iater, while President, he revoked an order of General Grant which deprived Jews of access to military department linea.* One of the myths apparently still perpetuated today is that of his having entered the Civil War with the intention at ending slavery. That he abhorred it and wished for its ultimate extinction is known. In a speech at Springfield in 1857 this viewpoint was well expressed, and welded into his conception as to the intentions of the writers of the Declaration upon equality.
They meant to set up a standard maxim for a free society,
which should be familiar to alli constantly looked to# constantly labored for, and even though never perfectly attained, constantly approximated, and thereby constantly spreading and deepening its influence and augmenting the happiness
and value of life to all people of all colors everywhere.
The assertion that "all men are created equal' was of no
Randall, pp. 185-86.
87
practical use in effooting our separation from Great Britaing
and it was placed in the Dealaration not for that, but for
future use. Its authors meant it to be-as, thank God,
it is now proving itself.a stumbling-blook to all those who in after times might seek to turn a free people back
into the hateful paths of despotism.1
The Fourteenth Amendment and F'eedam of Speech and Press
Although, as has been noted, the 111 of Rights was not binding upon the states, the passage of the Fourteenth Amendmnt in 1868 opened the way for application in the states of rights referred to in the First Amendment. From that time to the present the scope of application has been extended to bring about contemporary adjustments in the area of conceptual equality. The "due process" clause in the amendment has been variously interpreted, and concern here is not in the aspect of business regulation but rather with its impact upon individual rights. Fraenkel observes$ "In this way the due process clause became the door through which many of the guarantees of the federal Bill of Rights became enforcible in federal courts against state action."2 As to freedom of speech and of the press it was not until 1925 that a unanimous decision of the Supreme Court protected it from impairment ty the states, Prior to that time it was held that the states had the right to extensive limitations. The case of Gitlow v. the People of the State of New York was the decisive case producing the following important decision.
o r, in America p. 234. 2Freenkel, p.
88
For present purposes we may and do assume that freedom
of speech and of the press which are protected by the First Amendment from abridgent by Congress are among the fundamental personal rights and #liberties" protected by the
due process clause if the Fourteenth Amendment fra impairment by the States.
Even to the early years of this century the meaning of the
First Amendment was considered to embrace only protection against
prior restraints and even this was not absolute. Later it was held
to mean full expression, but subject to the "clear and present
danger" clams, expressed first by Mr. Justice Holmes in 19176
The question in every case is whether the words used
are used in such circumstances and are of such nature as
to create a clear and present danger that they will bring about the substantive evils that Congress has a right to
prevent. It is a question of prozimity and degree.2
Of interest as an interpretation and clarification of the
"clear and present danger" clause is the opinion of Mr. Justice
Brandeis in 1927.
Those who won our independence by revolution were not
cowards. They did not fear political change. They did not exalt order at the cost of liberty. To courageous,
self-reliant men with confidence in the power of free and fearless reasoning applied through the processes of popular government, no danger flowing from speech can be deemed
clear and present, unless the incidence of the evil apprehended is so inninent that it may befall before there is
opportunity for full discussion. .*. .3
Suspension of habeas cru by Lincoln again raised the
question as to what conditions if any, would justify suspension
or curtailment of rights by arbitrary action. Holmes' "clear and
'Ibid. 2bid p, 67. 1i p p 69.
89
present danger" clause does restrict its operative zone, but there the decision as to what is clear and present is a subjective one, allowing of more than one interpretation.
The Fourteenth Amendment provided the means whereby a more uniform application of the concepts could be secured in the states. As it implements the provisions of the First Amendment it made possible federal protection of those rights against state action.
Some Effects of Recent Wars on Rights
Espionage Acts of World War I
Similar to the controversy aroused ty the Alien and Sedition Acts of 1798 and Lincoln's suspension of habeas corpus was that resulting from prosecutions during and shortly after World War I days, chiefly under the federal Espionage Acts. The Acts imposed imprisonment and a fine on specified spoken or written opposition to the war. In 1917 the federal government, concerned regarding words or actions which would impeds the war effort, passed the Espionage Acts. These acts were primarily aimed against statements made with the intent to aid the enemy, obstructing recruitings or causing insubordination of the 4rocpse Most of those punished under these acts were Socialists advocating doctrine against war. It was controversial largely through the lack of precedent in drawing clear-cut lines of demarcation as to what constituted violations of the freedom involved. Chafes sumarises$
90
GOs of the most important purposes of society and govern.ment is the discovery and spread of truth on subjects of
general concern. This is possible only through absolutey
unlimited discussion, for, as Bagehot points out, once force
is thrown into the argument, it becomes a matter of chance
whether it is thrown on the false side or the true, and
truth loses all its natural advantage in the contest.
However, balanced against this, Chatee points to the necessary purposes of government, which must be balanced against unlimited usage, The lack of precedents has made it possible for judges to impose decisions based upon their own personal standards. In order that both the individual and social interests be protected it has been suggested that "the great interest in free speech should be sacrificed ony when the interest in public safety is really inperiled, and not, as most men believe, when it is barely conceivable that it may be slightly affected."2
The Alien Registration Act of 1940
The fear of war, or war itself, is generally accompanied
by acts of hysteria, even among those who normally believe in adequate safeguarding of individual rights. The Alien Registration Act of 1940 is regarded by any as falling in the category of such an act. Enacted prior to our active entry into World War II relatively little of it is specifically applicable only to aliens. Comparable to the Alien and Sedition Acts of 1798 it was the second peacetime sedition act passed in the history of the United States.
eohariah Chafees, Jr., Free Speech in the United States (Cambridge: Harvard University Press, 19141), p. 31.
21id p. 35.
91
The implications residing in the various bills constituting the
Act, as reported by Chafee "contains the most drastic restrictions
on freedom of speech ever enacted in the United States during peace."'
The purposes were stated to be as follows
1. To prohibit the advocacy of insubordination# disloyalty, mutiny, or refusal of duty in the military or naval
forces of the United States.
2. To prohibit the advocacy of the overthrow or destruction of any government of the United States by force or
violence.
3. To add several additional grounds for the deportation of aliens to those already provided by law.
h. To permit the suspension, subject to congressional
review, of deportation of aliens in certain "hardship cases"
when the ground for deportation is technical in nature and
the alien proves good moral character.
5. To require the registration and fingerprinting of
aliens,2
It would appear from the testimony which accompanied the
demands for passage of the bills that the danger to be avoided
were neither at the time, nor subsequently, of such nature as to
warrant the need for such legislation. Much of it we in the category of being an anticipated danger, with many of the anticipations
already covered by existing statutes. In opposition to Section
2, Representative Hinshaw of California submitted his fears as to
possible future interpretation and usage.
I sutait to you . same word or thought that we as
citizens might express offhand, without intending to violate the law, might be taken under this title to mean
something very serious, and a man could be subjected to persecution and to the heavy penalties of this act. I do not think it is right, I do not think it is fair .
1 *id, p. 441. 21bido
92
I do not believe in meeting intolerance with $nWusticev I value my liberty as did my seestore who fought to set
this country free.,
In addition to the restriction on free speech inherent in the act, the same Section 2, in one of its clauses, invoked something entirely without precedent in American tradition. Under the Act, guilt could result from association as well as from a personal act, In hearings an the same principle with respect to the proposed sedition laws of 1920 Alfred Bettman placed himself in opposition by pronouncing it to be an "absolutely complete departure from our traditional democratic doctrinesa,2
Grotag Pains of labor Oranisation and te Growth of Corporations
Generally speaking, the years from 1862 to 1873 were favor. able to the formation and extension of trade unions. The depresain year of 1867 and the minor business difficulties in 1870 were not prolonged enough to limit labor organizations in their growth. However, with the depression beginning in 1873 and lasting ntl 1879 the more or less peaceful trade activities, characterized by picket lines and -walk-outs, with occasional violence, changed into a violent phase in which illegal and forceful activities oomnly marked worker demands 3 mn different parts of the country, notably in New York, Pittsburghs Philadelphia, and through the Middle West,
' o p-P 46 2Ibid, p. 470,
3WAre, l r Moder InutrialS p. 183.
93
violence in various forms broke the bounds of legal control. Property and lives were destroyed to such an extent that the actions of the workers and strikers set public opinion against them.
Notorious even among the advocates of illegal force to secure demands were the Mollie Maguires of Pennsylvania, workers in the anthracite coal fields. This secret organisation had through violence, against foremen and others in charge of company property# secured nominal control over many of the mines and stores. Through brutality against those who opposed them, not even stopping at murder, they controlled the output of the mines through supervision of the hiring and firing of miners at the pit heads. Their power extended from the 1860's to 1875, broken only by a two-year investigation which resulted in the latter year in the trial and execution of a score of the leading members and the Jailing of many others,1 Organisa tion of the miners to secure much needed reforms was delayed many years by the odium attached to the brutalities practiced by the Mollie Maguires.
The repercussions of the Homestead Strike of 1892 assumed national proportions in the endorsement of the Populist platform preamble by a grand jury of Homestead. In their indictment the grand jury charged the Pinkerton head, William Pinkerton$ and officials of the Carnegie Steel Company with treason, murder, and conspiracy. The preamble had deplored the use of hired gun hands to quell the
13-vey Iish, Society and Thought in Modern America (New Yorks Longmans Green & Co., 1952), II, 222.
94
steel workers, and formed the basis of an appeal for Democratic support in the forthcoming national elections. The three-hundred hired gunmen were Pinkerton agents whose battle with the lookedout workers resulted in a score of deaths, and a larger number of wounded. With the failure of the Pinkertons to gain the asylum of the steel plant, Carnegie's managers Frick# sought for and secured the Fnneylvania militia to establish martial law in Homestead. Private armed force having proved ineffective in this case, recourse to government armed force appeared to the workers as a violation of the concept of justice, a feeling which had been developing since the use of the labor injunction in the 1880's. This weapon against labor had declined in use in England, where it had its inception, but was to become a potent weapon in the hands of capital in the United Stateso1 The combination of state and federal troops camhined with the labor injunction were to prove effective in preventing any strong organization of steel workers from the time of the Homestead debacle to 1917.
During the latter part of the nineteenth century both the employers and the employees were, for lack of organizational precedent, becoming more and more militant. Though the labor injunction proved a strong delaying force in the contest, and a forceful legal deterrent to outspoken labor leaders, it was not a panacea for the ills suffered by an ever-growing number of workers.
'Ibid., pp. 210-11.
95
The dimension of the Homestead episode may be read in
the many facets that it touched of American life* The expressions and exchanges of views that it stimulated on key
issues indicate its challenge to the social and economic
thought of contemporaries. It stimulated a new awareness
of the extent to which claimed human and traditional propertyrights could be in conflict.1
Following the waves of unsuccessful strikes throughout the country, and issued near the close of a long depression, the Inaugaral Address of President McKinley in 1897 could have been regarded by many wo rkers as a conceptual vision still a considerable distance from attainment.
. Equality of rights must prevail, and our laws always and everywhere respected and obeyed. We may have failed
in the discharge of our full duty as citizens of the great
republic, but it is consoling and encouraging to realize that
free speech, a free press free thought, free schools, the free and unmolested right of religious liberty and worship, and free and fair elections are dearer and more universally
enjoyed today than ever before.2
During World Whr I the trade unions gained strength, but conditions immediately after the war, which included a depression in 1921, gave employers the upper hand in any bargaining attempts. Demobilized soldiers, a falling off in exports to impoverished European countries, and the accumulated war wealth of big business were factors in favor of the employers. Growth of unionism was thus again delayed until the more favorable years before, during,
3Thnel Aaron (ed.), America in Crisis (New Yorksa Alfred A. Knopf, 1952), p. 164.
2Speeches and Addresses of illiam McKinley ed. Doubleday and McClure Compar (ew York: 1900), p. 9.
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Certain Historic Concepts of the American Way of Life With Implications for the Foundations of Curriculum and Teaching By ARTHUR CHRISTIE A DISSERTATION PRESENTED TO THE GRADUATE COUNCIL OF THE UNIVERSITY OF FLORIDA IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF DOCTOR OF EDUCATION UNIVERSITY OF FLORIDA August, 1958
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Art1mr Christie 19S 8
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The writer wishes to acknowledge the contril':lut1ons made by others to this stuc\r Appreciation 1s especially accorded the membera ot the supervisory eemmittee tor their cooperative attitude in encouraging the research Dr. Leon N Henderson, cbairtua., .. -,1,,,. was particular~ helpful in h1a interest and tactful guidance Dr. Clara M Ol.aon, co-chair.man, provided both inspiration and tecbnical guidance in bringing the stw\v' to ceq,letion. To other members or the committee Dr. Halo. Lewis Dr. Rembert w Patrick, and Dr. Char les L_. Durrance, indebtedness is acknowledg e d for their constructive eritieisra, enceuragement, and suggestions. Appreciation is expressed to the following publishers tor permission to use mater1.al f'J"om their publications t G P Putnam a SonsJ Funk and WagnallsJ University of North Carolina PreesJ Scott, Foresman and COlll>aJ\V'J Harper and Brothers. J and the Harvard University Presa In addition to the aid extended by the library s8"ices oE the Univarsit-y of norida the writer :ts grateful for the serttces provided by the Harvard College Library, Harvard University, and tG the Thomas Crane Public Library of Quincy, Massachusetts To m:r wife, Marl.ha Lotdse Christie,: is accorded grateful recognition for her unfaltering faith, the providing of susta:lning encouragement, and the restoring or morale during crucial periods. 11
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TABLE OF CONTENTS Page AOKNOWLEDQMENTS .. ii Chapter I IITROOOOTION .AJtD STATDIENT OF THE PROBLEM. 'l'he cumculwa DLlemma II. III. Concepts and Values Iaok of S,ntbesie Changing Conditions Historic Relat1 vi ty Defin1 tion of Terms DeV'9lopment of the Probl.ell The Problem Procedure Umitat.1.ons Plan of tbe Pl'uentai:4.cm FOLITIOAL THEORIES Cunent at the Beglmd.ng of the SUl'V8y' Concepts in the Doo\llente Bllls of Rights 1n American Hietoey Conaepts as Found. in the Writings and Statemeata of Lead6ra From the Declaration to the Oonstitution, 1776-178 9 Obtaining tbe Bill of Righte Summar.y INSTANCES OF SIGNIFICANT DEVEWHIERTS, 1776-1.860. Social and Politi.cal Economlc Issw. Educational Improvements Religion and Nat4'Vllsm :Ear]a' Inequal:l ties at states IeV8l SUDlll&l"Y' iii 1 20 sa
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TABLE OF CONTENTS-Continued Chapter IV. INSTANCES OF SIORIFICANT DEVELOPMENTS_. 186C)....19hO s Suspens1cm o Habeas Corpus The Fourteenth .Amendment and F.Nledam ot Speeoh and Preas Some Ettecta or Recent wars on Rigbte Fapionage A4ta o World. war I The Alien Jegiswatt.on Act of 1940 Growing Pains of Labor Organis ation and the Growth ot Oo.rporat1ona Relig1ous 14.bwtq Subverting or IJ.berty SWllli&r., V ANALYSIS O F PBSE1ff SITUATION . . Variances in Pe.roeptd.on o! the Gmcepta The Need :or Clar1.f'ication SU111Da1"1' Page 106 VI. rnmms, WITH DlPLIOATIONS FOR EWOATION ll8 F:lndinge Implications tor !klucation Sugg.ations for Furtha Study' APPENDIX .. ]J6 BIBLIOGRAPHY. ., 143 BIOO~HIOAL SKETCH .. ii iv
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CHAPTER I MROOOCTION MID STA'tDBl't OF 'l'HE PROBLDl ~ O!u!!zcS19 Di;ta,,a This 1s an era a whioh Aanericans are 1D aubstantl.al apee... 111mt lAPOl'l the need to develop a stranger faith 1n demooraq and the e.ont1DU&Me ot a Ne 1ft\Y' ot lite. Democnq is tacing a oballenge from tc:,klitaJ'ian fOl'lllS of government which is not. unique. in threat, having exi.sted in various t01'118 throughout blsto17. It 1s unique, howeVv# both in the poesibili\v ot ~logical inroads eomhatta.ng democrati.c ta1tb and the threat of a at" of possible total extd.noti Ci'd.Uan an:l m:UJ."817 datecUons fran a b'ee 'fl8'1' ot life have raised basic questions re~ the "flBY in which vague1 and ~pparen~ contused, beliets be replaced by a 1I01"e positive belief, perbapct more near~ like that of the fa1 th 1n the Amer.lean way o f lite of former generauons m:lueattoa has been under .tire in recent, yean tO'r it.a Ueged tailure to inBUU pos1 U:n belief and currie\llmla ohanges have been ~ted to produce the defJi:red re&Ulta,. The ma3or diff1cult,' 1n curricuJm. revision 1s that ot seourtng agreement aa to what tbe changes ahoUld. be. ls8t~, it bas seemed to be a cholce ei tber ot de,eloping a D&l'l"Olt'q' sttuetiund belief in an eetablisbed wa7 of :\ife wb1cb would no\ allow ." conooptual changes, or, 1
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altemative~, of actopti.q the educational aethods or tbe$e eppoeed to the Ameriean 'R7 The latter ia NCGIIUDended by ll8oD7 1n ordelto taoe the threat of a pc,esibl.e war of am1b1lation; presmabq ei tber OYU'loolcL.ng the aaorif1ce ot oertain dear]u held valuee or ld.llingq saer:Lficing them for-~ aelt...preaervation ln terms of the fGWklations and dev'elopaent ot a elJl"l"iaulwa the latta invo1"98 less free cboioe by' indiv.t.dl.uals with the State ttem.gnatA.ng the. subject ma'tter and tue elemeata thought D80Ge#&17 This OOl.lftle ot aotiaa woUld. not constitute the cbel'iabing and turt.ber daftlopment ot a way of lite to *I.ch tbs f."oretatben wen ~ ca\ed wt wuld be an aul.atton of a~ ot lUe 1n ant4tbeais to what. bas been the democratic goal. Inberent in the adoptlon of." such a course resides the danger of the Jlat.i.on s 19V'er aga1rl being enabled \o r.egcn a t,ree wav 0 u.te. lducat.i.o-1 coali U.ons jm.. posed to emulate to 1mtta1e,. or to nm parallel with educational nquiNaents in countllf.M constituting a thnat to tb1s countl.7 1n'JUld mean a dlscudlng of values 'Which 8l"e part ot tbe danocrat1c fa1 th. J.nev1 tt would 1;he deV'el,opaeirt in the Am.er.lean people of values e~ble to thos h4ld in high esteem by sueh other eowitr1ee. It d not n.ectNl8U1.q follow that the c\U"'J'S.cul\111 cbangee DWS'b be made upon an e1tbW/o, eondi:t.ton. For those who bave a tum and uashakable beliet :la the meet 1111~ acceptable articles ot the danocratiio tld.tllt tbe past, aeraplee of NS111enc and power 2
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3 generated under democratic ideals and values may produce another answer Urigentq needed is a more Widespread underst.anding of the meanings or suo h terms as libertq1 equality-., and justice as they have operated at dittel"81'1t periods in the American way ot W Q,gngePts and Val.uea In the teach:l.ng ot certain values attached to a wq ot lite both the specii"ic and symbolic meanings., ditfioult to anaqz, D'JH3 lead to a feel1ng 0 inadequac,-.. Particular difficulty is encountered in attempting to clarify such concepts as libertq, equaliv, and justice, which,, though capable of d.ef'1n1 ti.on pose difficulties in their application. It :ls possible that the usag of the tcms has beccme big ~ emotionalized without specific reference to 1lbe possibil1 ty of changes 1n past, present, and CO!tjectural. future :t.nt.erpretat1.ons .. Earlier usage particularl;r during the latter part of' t.he eight.eenth cenUJ.a7, gave the terms f 11Jlamental.q a poll ti.cal sig n:l.fieance, It is 1n ra1iher recent times that they have developed also an eoonmdc and social. sign.Uicance. Prior to the Y9&1" 1716 whatever rights were cla1med by' the col.oni.ste in America were the rl.ghta of tnebom Engl.isbren, wbo1 prior to the R$V01Ut1on, pet1. t1aned legaJ.:b" tor such rights. The iresent s~ is concerned with the usage of the tems u 1ibq have been used since the securing ot independence trClll F.agland, for in the strict sense there ns before this time no S\1Cb th:1ng as
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American rights. 'l'be delineation is not to derv' the 1n.f1uenee of rights secured b,-~bmen .from the crown trcn the time ot Magna Carta 1n 1215 to the Acts ot Settl.ement in l 700-1701 but to emphasize that selectivity employed in tb.e w.ri. ting of our great d.Geuments was purpoeef'll.11 aid was intended to ba'Ve ean1ng s1gni.Ucant in the new framework of govermen\. Lae.k of S,m!1!e1a In our culture children at; a vw:, earq age have been made aware that the concepts o 11bert'Q, equal1.ty1 and 3u&tiee are the eornentonea of O\u:' way of life. Subsequ.e~ they are g1 ven the opportuni t;y through extended education of recognizing our way as superior to other8 The terms libeiotJ' and just.toe are foand in the salute to the FlAg-n. w1 th liberty and justice for all. n 4 1D the Declaratlon of Independenc ia found the concept of equ.ali tv"We bold theee vut.bs to be selt-evident, that all men are created equal. It is likelT that seeds of ~fel"8f1Ces and dissension an being som what at the same time a& concept1en o hlstorio relativity is attached to the terms libert7 ualit:Y, and j\lStic It is contended that the American fl&'3' :ust be NCOgnized as something vital and ehanging as opposed to something static wblch can be learned an.ce and forever held tJ-ue. Oot~ in recognition of the changing nature of the Alaerican lfa7 of lite, placed knowledge of what it bas taken to de"felop it as fundamental to democratic
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s oitisenebip. Such knowledge would pl"O'ri.d.e a t:i.rmer i"oundatiao tor withstanding propaganda directed agalast it. Recognltim ia also giffl':l by Ida to the need t tbe .-n p~ bJ coa teaporary iasti. tuuons, wblch as the:, dfJVfllop bri.ng chaDges in our bietori.c coneepts society demandsthat schools belp pupil.a achiew a basis for &tmocJiQtio ci\iunaklp. The child must undentand the meaning of the Amerlean WIQ"J the struggle and aufter.l.ng which have produc-1 it, and Ue etl'engt,hs and weatmesseP as compared w1 th altemative social syetAms. This involftS not onJ;v an hODeSt Ulldllntanding ot American pell '1.cal and socj.81 b1ator.,1 wt also taadliaritq With o~ institutions. The child aust W'ldflrstand the goals ot the Amer.1.ean ._. and make them h1.a ovm..l. The nud;r 1s also piraDUed \lpOD the belief that more consistent bebavior changes "1ll 1Uult tNra tbs applieat-4.oa of intelligenoe than .tftm appeals t EilllOtl.onaliaed 1deal1 a. These 1Mo approacbea represent a present d:l.cbotcllG" 1n ewoatloa. Teachers may NSOrt w eot.1.onal appeals at one time and later extGl the v.lnues ot the other as being rau.onai_ and ~o-re super!-. A recent study gent aa to det., ~-Of thea. It 1s sigtd..t.l.cant baw89'er, that college and tndependeat stud1ee have at,temptecl to dev:18e a mre adeqi ate couwe in '118 s~tbanS.Dg of American c1 t4.zenehip. c.e ot these The Cit:Lnahlp Ecluotion Pl'o3ffb (OEP}, ot Teaeb6re college, oolQllbJ.a Un:t.:98ftd.t,,, u ~ to both s-,onda17 schoola -1nc.au P. o~ (ect.>, ~cher !'1!9$'tdOQ t~ a F.l'ee Pegple (
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and colleges center.Lng about what bas beeh termed ttPrem:l.ses in the Tradition of American U.berty .nl The conoem is symbol.io of a more widespread coacem that the va1uee ot a 'flay or Ute be better under stood by those who benefit by thea. The dicbotany of ap proach is abq eomented upon by Iewenstein W e cannot igno:ra the fact that there is an 1l'lherent eonf'liet existing in a school program which tr.Les to develop att.i.tudes or patri.oUsm through aaottonal appeals at the same time 1 t 1s plaotng a value on the dewlopuent of intelligence and the raUona.1 approaeh to the solution of problems. To be cons1stent a teacher or scbool staff can not direc'ti their et1'orta toward both of these aims at once. 'they eannot on the one hand encourage blind loyalties to emotim-charged SJmbols or American nationalism, and at the same time encourage students to explore every probl.Ea. rationall1' and arrive a t their goals or choose their courses of action by~ the anticipated consequences of a.lternatives. 2 Recogn1tian of the d1.tf'icult1es involved 1n defining t,be Armrican way of 11.fe is e'Videnced by the various solU'Ces o~ with the passing on of ~be cultural heritag e The American way is interpl'eted largeq by-the selection of detinitions involving the terms previous~ referred to as cornerstones, and this in tum leads to the acceptance of values wbieh are 1n oonflict, for the acceptance of a def'inition is commotiq that which seems most appropriate to the individual or a groups needs. For 1mmigrant.s who 6 luom.s Robert Iswenstein Some eurrent Projects :tn Citizen ship FducatiGD.," 1!oE!ssive Education, XXIX (vay, 19S2), PP 249-$2. 2uon1 Robert Iawenateln, "An ~s of Some Concep'bs of Citizenship Educatica." (Ullp\ibliahed F.ct.D. d1ssertati.on1 Department ot Education Urd:vel"Sity of IU1no1.s, 19$.3)P 164.
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aspire to cit.icenship the Imlld.gration and Naturalization Service bas shown its concern for the passing on of the American heritage as being ure than the memor.t.1at.i.on of technleali ties Helpl.ng yout' students to meet the legal requirements for c1 tizensbip is an important. part of your work, but it is not ywr major taskJ lmowledge whicb touches the mind wt not the heart serves no great purpose Real a:l:\izenship 1s not atwned merel.v meeting the legal requhements. Every American oitAzen should have -an abiding faith am a canpelling belief 1n the ideals o freedan am justice upon wbich our government is founded. Passing on to y
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8 ti t1e "The American tt1 Ro mttldld ty, of nbject matter is to be found 1n the tour essays aeleotied aa bee't. The four vam.-aub-181 ttecl essa.va as 1ndi vld\1111 ae the tollo,d.n.g main l1nes o f tboughtJ 11bert7 and tNedm. of appol"t.uni VJ colleot4:v1 as a ;tutu,e eftlituali VI dalOCJ'&tic educattoa to make pc,l1 t.toal doc1'Ai.Me aooeptablef and, dignity of the 1.ndiv.LdUl coupled with a i'eU(fflable measure ot respect tor lit," in poU.tt.ctt. That ocntest wu the n,sult oE coneem with pU.blic undentarding and the results would sean to 1nd1-cate that mch o r what is thought of the American my ot lite,. unless tempered _.. selective value irem.aea, is very l:lke~ to be a personal op1nlon wit.bout lo,Jgl.Ue i-ootA. That aaotienalised A:mericwdams do not Meolve into behavior c088-on.mt with ~tic ideology has been noogtd.secl 1:f' man7 :lnteNaW 111 ed\loation 1fben tbq have v.t.awetl the upc,u.rge ot junnile del1.nQ.l81CY 1n recent yeare. A pooling of the nsourcea of cammum.ties in secving the s u pport of the hcne1 cbui"C~t school, and var.Loua cl\1.be to provide ~q supervised reoNational tacUities bu helped, mt more tbaa pleasurable activity is needed. Those reeponsibla for value PNl!d.s need aid in the presentation ali SJDtbe818 of a way ot lit\ directed tow.rd full defeloplel'lt ot id.vi.dual eapaeit.iee and the lntegraU.on of the 1nd.tv1d11al into an ongoing laavtd Cushman Coyle and otba:ra,, The1 .Ame.rlcan fW (Hew York and &mc:lon1 Hupest and B:Jll08, 1938)
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Divergent viapoints as to what emstitutes the Aman.can 'fl1q o f lifi ue not the e.xcbisive prercgattve o f any one clAsa, group nationality, secti0n1 or state. The tol.lodng emerpts :l.ndicate a basic d:Uference in v.lewpoints as held by two perscms ot high eduaational 1atell1gence. Hutcbt.ns takes the view that emphasizes the right or the people to 9JCPNSS viellJpolnte on the American wq w:lth the same lack of restriction as those or a century or more ago C ontinuance o! individualism rather than the davel.opnent or goals of a cooperatiw society appears to fom the foundations or bis ree<1m1endat1.cn as to boll to preserve our way of lite. We hear an everys1de that the Anerioan Wq o Lite is in danger. I think it is. I also think that JDal.\V' of t.bos who talk the loudest about the dangers to tbe .American Wsy of We have f10 idea what it is and consequently no id.ea what the dangers a.re that it is 1n. You would suppose, to listen to these people, that the American Way ot We consisted in unantmous self-adoration. Dom with orittaisaJ dawn with protestsJ down with unpopular op:in1onsJ down with independent 1ilought. Yet the blstor.r and wadi tion of <>Ul' country make it pertect.13 plain that the essence o:r the American Wq 0 We is its hospital.it;, to criticism, protest, unpopular op1n.1.ons, and independent thought. A !ew dates like 1620, 17761 and 1648 are enough to remind us of the mott and att1tud9s of our ancestol"S Tbe great Arner.Lean Virtue .. eounge.l Browne 1n a review and l"e buttal o r the Hutcbins viewpoint empba-, sizes the need to consider hi.stor.lc rela'tl v.t ty 1n &IV' essessment of present conditions. M. Butcb1ns, "The American Way of Lite, 11 School and Society, 70 ( August 27 t 1949), 129. 9
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lD ~eatlon can easiq becane dangerous.. Dr Hutchins references to our American way o life slur aver the tact t t there is a basic issue, as represented respeetiveq by Plato and newey, regarding the manner in wh1ch this way 0 life is to be interpreted. As long as this issue is kept out ot sight most NQders 111.U proba~ be encour-aged in tt.e lazy habit of identl.t)ing liberty v.l.th absence ot restriction. To this extent Dr. H\ltcbins' article is a dissm:vice t.o c1t&zenship and to educatlon. Appeals to the Amrlean way of life are out of order unless we are shown how tbls wa::, or life 1s to be iaterpreted so ae w meet changing situations and to enhance the values that 1 e erve to Ja8ke human life a thing of beauty and of worth In all probability those l1,11ng themselves with a defin1tion of lil>ert.'r which is positive rather than negative W011ld agree with the latter writer. Fundamental.q, t.oo differences arise not simp]1' in ditteemes of det'in:i. t1on but upon the acceptance of a different set ot postulates regarding the democratic faith. Frcn tbe toregolng iii appeaftt that our etboda in the trans mission ot democratic :I.deals and values are consistent neither 1n approach nor in results. :¬:lonalized idealism lacks the founda tions of bistorie relativitT to give it substance. Leading programs of ci tuensh1.p education are widel;r di verpnt in the attempt to d:f the felt need to further demOCl'Stic faitll. I.tomen's eval.u at.tons or the .American way ot lite differ mar~ in their perceptions of present and futAire. actvantqes. Intelligence and :ucation at a professional le-oal do not necesaaril;y br.1ng concurrence in viewpoint as to the nature of 1ibe demoorats.c st.ate nor the direction in which it should proceed. 1:EJ.sanor Bode Browne "Dr Hutcld.ns and the American way ot 1.4.f'e, Schoo l and Societz, 70 (December 17 1949) 410
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11 The lack ot ayathesia 1a approaebes~ in tbt ~rstand:1.ng of the ideals and values, and 1n the evaluation ot the perfomanee of a democratic st.ate like~ resides in Ud.tial d.1.tterences or \ perceptd.oo as to what conatl tutes tbe deillooratic ta1 tJI. GO\D'rt.e presents the foll014r>g artiel$S as eommandi, ng t.he widest acoeptance. F.lnt., the lnd11'ldual blman be1'lg is et surpassing worth Second., tbe eanh and the h'*8b culture belong to all men Thi.rd,. men can and aboUld rule themselves Fourth, the bmaa mind can be truated and abollld be set bee ruth, the tbod of peace is superior to that or war Sixth, racial, cultural, and polit.ioal mnori.ties should be tolel'&W, .. ~l. The attempt. to def'1ne llteral.q all of the aspects ot dellocraey bas challenged aan:, Wl"i tcia who have been unabla to am ve at, WllllWII! ty. Though such agreaaent baa not beeo seeu:red.t HS.nee otters the following Obeel'Wti ;V" particular raM., s Demooraq is aot neceeeari.11' uaoed.ated w1 th .. special tom. o ~tlon of pcMV or tuno'1ona.
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6. 7.'U7 is not necease.riq associated wi tb atr'J' par-ticular tom ot 1'$Prelfentati'V8 or executl.ve ._an1zat1on. 1 Wlth knowledge o the foregcd.Dg articlee eoneem:lng the dell.ocratio faith and the pi Valls comend.ng the daoeratio state, Americana eh()Uld be able to measure the possiblJe con.sequences ot propoaecl ehanges and th\18 d!.soem possible cont11cta 0~~!4:9!! The DeoJ.aration ot Independeme and the C onst1tuUon or the 11Di te4 States toll.owed a, 1 ts attendant .BUl of Rights were l2 dawn up when the cowitry was large~ aparisn with l.ativeq simple econatd..c and social condit:Lons. The gl"Olrth of the Uaited state,, both in area and population, bae not been that of an extena1on conditions undreamed of by the 0Fathen ot the DoCUllents. a.. IDa7' all ask what, N>AiDS to the American of~ o what ccnsti tnted the Amrican 1'lV' of lU'e of a past day and age? To what exten-tclo the people look upon the tradttiom and ideals of the ~athem as being a present force in tbeir living? In what way if alV't bave changes occurred 1n the basic concepts of liberty equal1 v, and just1ce? The anner to the 1aa1; .-.tiGli may ...U be tbe key to the other questions. CCllS\ant reappniaal in tema
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1) oi" the Jd.atoric i-elat.i vi t;y of the concepts is necessari~ a c~ relative measure 1n undel'StaDiing what has oocurred The common her1 tags of this country, which was entia~ ingl.i.sh-Amer.t.can, bas been cOlldit.1.oned by' ~he peroept4.ons ot millions or immigramis who brought w1 th them their mm group cul.tu.res To contend that most. people view the basic elements or a way of life in substantd.all;, the same lllallD.el', without pzeviousl.y instilled loyaltyto accepted postulates, uoul.d to refute what is known about the nature of perception,.1 That. the iJDDdgrantst understanding o the teftJB 11~, equal.lv, and jU&tioe would co:ltJCide with that of the native bom would be an inational viewpoint, That they f1 tted 1n eo readi~ is a tribute to the conditions which parts of their cultures have been integrated w1 th t ot t.bis country, and where sane degree of banogeneous groupt.ng took place the impact of their culture,e has a conti.nu:Lng ettect lflstori.c r.lf;ltd.vi~ A phenaaenon o t the .American RY or life 1s the acceptance o f o~ pro.found statements which when w bjected to scrtiti.J:V'
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are .toamd to be h1~ emot.d.onalized appeals. These are sanctioned and prcmoted by "'*11 t.d.onal idt5lin.s who oppose arq-change as being an intringement of their ancient rights. Whether or not the public at large upon hearJ.ng reterencea to libfftl.r, equali1", and justice have at.teinpted to anlF Jiational thought in an a~ of specif'1e meanings is open to dou.b\ If Americam were asked 14 to tell one about the .American wayot lite, the 1ndi. vidual. reapons would be varied but. in all liklihood the objective syntheses muld be few in nllllber eny' in tbe concrete sig rri.tl.es release free the impact. ot 2~t1.culaJ9 oppressive
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forcesJ emancipation trca scmething onoe taken as a nonnal part or mnan lif'e bat, now experienced as bondage. At one time, liberty signified liberation frertq alwaJ,s bas to do with scae class or group that is &uttering 1n a special. way frGm scne form o constraint exercised by the distribution ot POllll'l'8 that edst 1n eontemt,oral7 societ7. Should a classless soctet7 eve" cQBe into being .t:l~ ol l.1belW 1IOQld lose ite ~. because th. e ae or wh1cb it stands would have becane ail integral .. the established i,,latiGDS or human beings to ona ano'ther ne.tJ.as.tde ot Tep Before proceeding with the dfnelopnent of the probl-. tlha follOWing detinit.ion of terms used 1n thu and succeeding chapten "111 be belptul. Articles Articles of Oontederation concepts In this s'l;udy a oollecti:ve word meaning li.bert,-,. equality and. justice Ocml'ention The Oat.a1d.:tutional Convention ot 1787 Dec1arat4on .. The Deolarati.on ot Independence Docments ..The Declaration of Independence and the Oomti tut.ton inclikit ng the Bill or Ri.ghts o P e
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Fathers Ken large~ responsible for originating and securing passage o f the Doo\l!JeDts historic rele,ttviv The g~ accepted a.n1ng ot a term at a particular time 1n bistoq !Be Resolutions. Resolution$ to declare independence from Great. Bri.tain Parliament Tbe :ftlrli.ament ot Great .Britain Developnent or the Prob]$ 16 To pranulgate concepts WS.thout clar:ltication is tantamount to their coeptance as bd.ng truths 1d.tbon respect to time or place. It is hardly conceivable that the import. of them when dmwn up is full applicable to p-esent day cond1.t1ons It is unlikeq that political, eeoncnic, and social changes have occur.red without c hanges in the meanings a'Dd/or application of those concepts together with their implied duties. Soclal intelligence smuld be opentive in the surveying of tbis probla. Fct.itb 1n the ccmcepts is not challenged insofar as they have been an integral farce in the lives or the people. '1'be ilaak is to trace developnental l1nes so as to avoid acceptance of generalisations wbiob lead to ambiguous and inadequate meanings Tbe Pro~ Jlozre speciti.ca~, this study is to employ the application of historic relativity to tbe concepts of the Anerioan 'Wal" of li.te.
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It is to tirece the meanings and applications of the concepts of 11beatt7, equality, and justice as tbef have, and now do app31' t& the American way of l.Ue. The study will attempt to arrive at valid conclusions with respect to the followingt l. The philosophic concepts of the tenns as held by the founding Fathe 2 Major cbangee wtd.ch baTe oeouned in their application, 3 Implioationa for tbe tounda:td.ona of curriculum and teaching Procedure The procedure 1'111 be to d~ first the political. pb1loeophlea held in high este. durJJlg the Bevolutionar., days Knowledg of the pb1loeopb1ea should enable one w better understand the political tbinld.ng of the countr.,s leaden. As liberty, equali iG', and justice are terms o.ttentimea used QDODYJDOUsq with daaocra.071 the Declaration the Consti.tution, and the BI.U of Rights will be studs.eel tor t.he incl.Uion of those terms The wording 0 the Doc\llellts1 together with the writings and statements of t:hose large~ raspcnsible for tbea, should give an 1nd1oation as to what fflMll'ls tbe7 attached to the concepts. 17 W1 th an understanding ot the generalq accepted meanings of the tel'IDS
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at the beg1nn1ng a canparison ay then be made throughout different periods. Signif1cant. chang in pol1t1cal1 econcmic, and social. cond1 t4ons should reflect the conte.m})01'9.1'1' understanding of tbe mea.rd.ng of the concepts at 8D1' particular time. An overview of the research hould reveal a cmparison o f the application of the concepts for the significant periods. I4m1ta\1oae 18 other than a recogni \ton that our founding forefathers did not g1'Up their political. philosophies tram thln air the stn
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Plan of the P.resentati.en For the reader interested in the political theories subscribed to during and shor\]J after the Bevolut.1.on, Chapter I I wiU ttempt to velop the ettecta ot those theotS.es upon the wrl. ting of the .American Doe\lllellts. 19 stgn:l.ficant davelopnents 1n the lives o f the people;t involv-ing changes in tbe aning or application of the concepts, will be found 1n Chaptem llI and IV. Chapter V wlll present variances in percept.ton of the concepts, both in our earq history and during this oentur.r together with a need for cl.arifying present meanings a pplied to present Conditions Find1ngs based upon the :research together with implications tor curr!l.cul and teaching will be found in the eoncluding obaptel"\
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CHAPTER II POLITICAL THSOBDS Current at the lb~ ot the S!!:!!7 There is rathel-general agsreement among those who have conduated searching inqU117 into polit4.oal theorles or the preRevolutionar., period that no evidenee au been uneovered to ubatantJ.ate the growth 0 a political philosophy peculiar to the colonies., The Decl.al"ation ot Indepenn pol:l ti.c,al doctrJ.nee bad been aclvooaW and eepoed tv "17 conoeivabl.e meane s.vailnble at the time. Thee een not d.elibel'a"8q part4.aan to the Crown 1n pleading for legal peti.tiO!d.ng ot right.a did contain the aeeda .of rebellion 1n can tending toian e1 thar/or pcm:td.on, Either Parliament should accord to the American colonists all the privileges of British libeJ'ty or the colonists should tien1' tbe authority of Parliament to legielate :tor them. Before armed de-1'1.anee broke out WJ.lsen ex;pJi'98Bed tbae t.b.oughte in 1774. It will be WJf!3' matertal to consider the a~ secur1td.es1 which the inhabitants 0 a .... t Britain haw, that their U.berty will not be des~ tn the leg1slatu:re, in wboae bands it is 1ntrustecl. It it ahaU appear that the same 20
PAGE 26
aecuri 'Mes are not enjO)'ed by the colonists J the undeniable consequence will be, that the eoloniets are not under the same obligations to int.rust their liberties into the bands ot the same legislatures tor the col
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22 the Declaration as a deli'berate selection of political doctr1ne to wbieh consent of the leaders oOIUd be secured. It viewed constitutional rights lraa the standpoint of the American colonies ~ and not .from the genera~ accepted legal viewpoi.nt or England, and added tor good measure ttie doetr1ne of "natural r:1.ghte frcm which was deduced the phi.losop~ that all rights originate with the people. '1'be wr1 tt.ngs of leade:re such as 5amuel and John Adam&, Otis, Dicld.ns~ Wilson, Paine, and &'Ven HamUton, all support this view. Tbe Declaration did not signalize tne opeld.ng or the re-bellion against the CJ'O'llll1: for it was tcmnalised statement ot wtv the mbell:t.cm was taking place. Groundwolk fo. r rebellion bad been eeded by Samuel Adams otts, &mcock am others over 1NJ'S prior to the evente at 1..a1ngton and conco:d where aimed resistance had occurred in the previous year. What then was the tb1nld.ng of men who dal'9Cl rise against the king and to place the11' signatures in a blll of eanpl.aint, not against the Parliament wb1ch bad enacted the uatavorable lawe but against the king himselt? 1114 1 t been a period of much 1ntercbang of ideas wl th Fl"ance much could be ttr.LbuW to niters such as Bousaerm, but as ucb writings did not have 1lida disseminatim at that ti.me it is more like~ that tbe origina rest prineipal.q with &lgU.eh wr:t.ten s uch as Milton, Locke and Blaokstcae. 111.lton bad in bis writings upheld the right of the people to depose or pit to death a wicked ld.ng Be also vigorous~
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defended the bl.rtb.r.l.ght ot freedcn and. retel'Nd to fol'Dm' cooperatt. Te action to S\:l8ta1ft that right Bo IIBll who knowa aught,, can be ao stupid to <1$1>7 that al1 men aat1.lftlq bom flee, being tbe luge and l.'98Sblance or God httlselt1 and were1 by privilege above au the creatar&a1 00111 to cCIIIIIIU1d1 and not to obey; and that thq li'V8d a 1'4.U fNll the root ot Adam s traflsgNHion fal11 ng among tbemsel.WJlf t:.o do wrong and vtolsnee, and .toreseet.ng that such c
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Br1 tish authorl v carried much weight in support of both JIU tan gave a more contempora17 and leg~ author:1.tat4ve ba#is 1n contenrli.ng tor natural rights. The absolute rights of man, considered as free agent, endowed with disoennant to know good fran ev.U, and with power of Ghoosi.ng thos measun6 which appear to him to be most desi.reable, are usual.q SWlmled. up in one generu appellation and dencxdnated the natural libertq ot manldnd. This natural liberty consists properl,' 1n a power of acting as one thinD tit, w1 thout an, "8tnint or control. mwaas by the law o nature I being a l'llgbt, inbel'ent in ua by bUtht and one or the gift8 of God to man a'b his cnation when he endued h!ID Wlth the faculty of .r,,eaw:1.u. 1 The JDON tncend.iaw spirl.UJ behind the movement tor -1>91-11.<11 proba~ l'llbbed their bands 1n glee 1lhen Blackstone out.1:1.ned the three ,s in which the preaewatim of rights could be pro. teated. lining a~'t] alihausted the tirst two methods without adequate redress the colcm.sta eov.ld, ba8ecl upon an irlterpl'eta:tico of the lns o England, justify l'88QUl'Se to ams. :-., To J>1'88en'e these righ'tia .t.rom vlolatJ.on, it is necessary that the constitution of parliament be supported 1n its full vigor; and limits, known, to be eet to the royal prerogative Andt ~t~, to vindicate these right.a. when anual.l viOlated 011 attaoked, the subjee.ts or England are entitled 1n the tint plac, to the regular administration and tree course of justice in the courts of lawJ next, to the right o peti.tion1ng the ld.ng and parliament tor recbWs of' grievanee&J and last:q1 w the right Q hav.i.ng and using ams or selt-presenattcn and detence.,2 lva1uam mackstcne, c~~<>n the. ot land ed. George Sharswood (ffd.l.adetiHa.1~ B" flppliic I O~p&f, 181$), I, 12S. 21b1d.,' PP 143-44.
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2!M!m !! tbt I Doc!!!!9ft. The lloelamtB contain tbe 1*'118 liberty, equal1 ty, justice in the pai-te cited belo,nl In tbe DaolAl'aid.on of Independence and to assume' the aepaate ad al stats.on -wtd.eh the iawe of Bature and ot Natute s o -.. entitle tblll, We hold thee truths to be sel.t'...-.:ldent t hat, all men an C1'9ated R@J: that they an endowed bJt their Creator .with oertaln unalienable B:Lpta., that ammg thee art IU, U.ben,: and the Pursu1:t ot Hall)!.ness I He bas obatJlucted the Adm:tniatratAton ot -~ti", They t.tJO have been deaf to the vat.ca ot ~USt.4.0if, In the OOQBtJ.tuUcn of the United Statee we the People of tbe United states in Older to tom a IJ10N) per.tee\ U m.oa1 ea'babli.sh ~-ti~ wun drm.aUc Tranqull1.ty1 prov1de tor the c
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nor shall be empelled in 8118' crSrn1nal case to be a witness against himself'~ nor be de p ri:ved of 11.tei, l.t~, or properiq., without due process ot law, 1 ln the Bill of Rlghts spec1c use or the words equal.itq and justice does not occur but no one would quest.ion tbe intent, 26 in that partic\llar respect. The concern for .treeclaa of speech protection against arbitral'8' arrest the sanot1t.7 of the bane against liberty, equality in an:r action taken against an ind.1.fl-dualt and justice accorded by law nther than b;y exeoutd. ve or jud:Lcial whim. B1U. of R;t.ghw 1n Ame1rl.cap Biatog; The Declaration or Independence was not a listing of new rights to which tbe colonists had aspired. It was a denouncement of the lCing for circumventing r1gbts already a~d to Ea:lgllsllnen 2 Prior to the Deel.an~, colon:lal bills of rights were to be found in all the colom.es, dittering in wordlng but containing a eonnon core in 9.2q)ftssion, m a study of the list of r1gb.te which nre olalmed, up to and incl.UlUng tJle Deel.ant.ion., the .toll.owing were the rights most generan,, stated,
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1. Ro tamtion without represent.au.on 2 Trial by j\Jr1 3 The right to participate in leg:L lation 4. Freedom of religion 5 A man should. be judged or pmished on1.,.aeoording to the law of t,he land or by judgment of his peers 6 Protection or preperty right.a 7 Rights and liberties o natllft].-bom subjects of Engl.and a Right to ~lish common law"-concepts as Found 1n the Wntap am ~ta!iin! of f.eiij(Gl'S The coumd.ttee aelected to prepare the resolutions sulaitted bT Rl.cha:rd. lee included Jefferson, ~, John Adams, U.vingston, and Sbe11DaD11 1.n addition to the !$'luences reternd to prevS.Olls]3 these men were influenced in their thinking by the recent] adopted Virginia Declaration of Rights and the Constitution or virginia.2 In their perse>Ml writings the ccnmi ttee members reveal the tolltming usage of the concepts in the periods before, during, and following the Revolution, as follows Although the actual m ting was done by' Jefferson. agreement with :respect to the general usage of terminology-bad al,. rea~ secured the approval of the ConVention through the passage of Lee's Resolutt.cna Tbmas Jeff.non 27 The faith of Jefferson 1n the possibility of mans improve ment in the regulation of his om affairs, and to share the blessings 2Benjam:t.n F1etcber wright, Jr., A Source Book of Americall Political. flirJtoq (lew Yorks cm:lllan oo., !929), PP ~7.
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28 of equali. ty and .tustice1 is mc;presse4 in a n\lllber o h1s 111'1 tugs. In a lett.er to James lfadisGD in 1787 Jeff'C"&on sai.d1 "The people are the obl;r SUN reliallce for the prennat1on of our l1bert7+"l Ha was not unaware ot the poeaibll1 ty ot danger arising to threaten l:l.berties trm an unshackled leg1slat1w or ezecutiYe bl'6DCh of g ovemment. In the year tol.J.Dw1ng ratif1cat1on or the Ccmatl. tut.ton, he sun regretted the Cllli&sion o.f' a b1ll of rights 2 It 1st therefore no idle conjectun that had be attended tbe Oen vmtion, Masani, Randolph, and Oer.ry would have received strong and intluential support in their laet m1nuta oono8"1 cmti" protection of establiahed or ._ht-for r'ighta. Hls patience and ta1t,h in the atta1nment of' libert.7 1a ecmtldned 1n his letter to Rev, Cbarles Clay in the year betol'e adoptt.on of the 13111 or Rlghw.3 Massiv or q\d.ek: gains be did not a.pect,. for 1n recogm.tion or the long struggle waged for liber\7 throughout. the history ot the world be was NCODC1led to the seeuring of :l.t When and if possible. He recogm.zed that restraint was neces8&1"7 in the ana of penonal liberty.. Bounds could be exceeded by the umd.se allocation of liberty to those wbo tailed to obseJ"ft wq restriction against impalring the ttequal liberty of h1.s tallow et t.uena .114 In ad.di t.1.on to his utenei ve 1Q"1 tinge upon libtrtT, consonant conceffl wJ. th Jef.tenonian Qz!r, ed. John P. Foley (New Yorlu Funk and Wagnalla, 1900)1 P 2Ib1d. (Appendix) )Ibid., P SOO. (Appendix) -h~., P h99. ( Appendix)
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the concepts of equality and justice rw:s like t.hreads through his expressed philosophy. In describing to a friend in France the new equality to be obeervl during the period of the Articles, the friend may well have been perplexed by the implications tor the society of which be a part. ft9ualitf; In a l&ttei-to ll ~uni.er in 17861 In America no other dis\i.nctton between man and man had ever been known but that of penons 1n office; exercising pGll9l'8 by l\UthOrity'of the laws, and private individualse Among these last, the ~t laborer stood on equal ground with the wealt.bies t; milli()Dalre, and generally a more favored one whenever their rights seemed to jar. There was a new sp5.r1 t abroad in America. Whatever b1dden refuge was hitherto used by man in withdrawing fr
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oommodlt,' to be dispensed onJv in the judicial sense bJ' courts of law is apparent in bis writings. He deaned it important enough to include the uncondi\1.onal dispenslng o it in bi.is first tnau.guOn Ju!Q.e. In F1nt Inaugural Addnaa, 18011 Equal and exact justice to all men, of whatet'er stat& or pen\lUim, :religious or polJ.ttoal~ I deem C'11Je of tbjJ essential. principles of our gOV'ernnctnt and oonsequen~ CaneJ wb1ch ought to shape ita ad1dnistraUClll.l was b!.s th1ntd.ng moditied during b.ls tenure as ctd.ef executl.ve et the coo.ntry? A latter some two yeara after his inaugural to Dr. Benjamin Rush rei tented his belief in equal and impartial jua.tice 2 to all. When be ehose to do eo, Frankl1n was adept 1n expressing complicated subjects 1n a few words, tripping awa,-the outer 14Jen ot a structure and expressing the meaty centet-. Ha reduced tbs relati"" roles o! the people and a gcmtmment as established. in this country to the simplitied .form apreased in b18 private writ.inge. U.!9'!l From unpublished manuscript a This government was established "for the Seouri ty ot our Libertias, Pnpertq, Religion ~d e
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31 to us," and was to be "nothing else but the Attendance of the Trustees of the People upon the Interest and Affairs of the people n l At the beginning of the resistance to the rule of England it appears that Fnnk11n had his doubts conceming the success which would attend it. Acute'.cy' aware of 1,he military and naval stl'ength of the British lmpil"e he was apprehensive that those who resisted would be ld.lled; leaving 1n the colonies onq those who chose what he termed slawry under an abe'Olute power. 2 Despite tbis he was in accord w1 th the movement to tight for llbeny rather than to succumb mee~. Recognition that. the blessings of liber'tq should be tile birthright of all 1Dllnldnd is ax.pressed in bis pra)'er that it m:Lgbt at sCllle time spre ad throughout the ,mrld 3 Of the same importance was his concern for equality. Inequalities in lite resulting frcm ditterences in -,rldq 'WMlth were to be nonexistent in the govermen'ttl concern for the lite and liberty ot each inhabitant. 01 Equality Fran 'be Writipgs of Benjamin Franklin, edit.ed b7 A H Smith.; quoted in Eiselen: He decland1 "'l'he tm~nt ends of Ci v1l Society, and the perS<.inai .:AAiurities of We and Liberty, these J'8lD&1n the same in ever:, Member of the societ7J and the poorest oontinues4to have an equal Claim to them with the most opulent. luaicolm. R E1selen, Franklins Polit.10$1 'l'beories (Garden C1t7, Bew York: Doubleda_,v, Doran & Company Inc 1928>, p 9 2Ibld.., P 4S. (Appendil() )Ibid ., P 82 (Append1x) --
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This was a natural conclusion for Franklin to aJTive at as he conceived the social. compact as entend into by equals, each 32 giv!ng and each sharing in common the social structure be1ng erected.1 It is true that hia measure of equalit,-with respect to elig1td.lity for suffrage changed during the yun. Prior to the Revolut-1.on 1 t does not appear that be thought uni venal su.f'trage a MC88S&1'J' qual.1f1cation in the protection of individual righte. 2 In the years to follow his thoughts 111th respect to that underwent a change. 01ring the C onvent-ton he ex.pressed bis dislike for &iglanda practice of limiting tba aufti-age by opposing a motion which would haw Umited suttrage to freeholden. 3 other rights which were genera~ understood b)" the people were not treated individually by Franklin. This es ver:, likeq due to such general understanding for although he mentioned other rights, for mrample, the right 0 pet.it.ion; he did not elaborate upon them. h John Adame tong a stu dent of political pbiloaop~, and during his lifetime destined to hold ID8fl1' pu blic offices at the national level, including the Presidency Adams was a prolific, writer. As ear~ as 1779 he was engag 1n the Wl'1 t1.ng of a bill ot rights tor lassacbusetta, to acccnpaiw the new constitution for that common:wealth. 2 I bid,, P 79. (Appendix) -
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The concepts ot l1berty1 equality, and justice togeth r with their practical application were not new to hlm, or he had long understood the dangers inherent in a too nm.ch or too little policy. On Li.be$: In a letter to Dr. Price from Auteuil, April 8 1785, When all men ot all religions consistent w1 t h morals and property, s hall enjoy equal liberty, property, or rather security o f property, and an equal. chance or honors and power, am when g ovenmant shall be oonsidered as having in it nothing more myster.l.ous or divine than other arts or sciences, we may expect that improvements will be made in the hman character and the state of Societ:, .. l Democracy was not a tool to be used b y individuals or groups for selt-gratUicat.ion, but the spirit of it was to be applied to the good or the wnole.2 No Utopian m1sunderstanding was his in contemplating tbe meaning of equality among men. le was too astute to understand it in ligh t other than equal rights and equal t.reatment at the bands of govermen~ In 11Ill. courses on Davila," 1790 t Alt.hough among men, all are s ubject by nature to equi l l.mrS of morality, and in society have a righ t to eg; .!i tor their goverment, :,et no two men are 33 1cbarles Francis Adams (ed.), 'lbe We and Works of John Adams (10 vols. J &>st.on& Charles o 14.t'ble arid James Brom, ffl o j VIII, 2.32. 2 Ibid., VI, 471 .. {Appendix) -
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perfectly equal 1n person property, understandin g activity, and virtue, or ever oan be made so by 8.1\V power less than that. whlob created tooa.1 That he viewed the level:lng tendencies of equality 1n the French Revolut4.~ with abhO?Tence is evident in a letter to Richard Price, nor do the same tendencies in America go unnoted. 2 Hls concept of equality was equalltv before the laws or the people, apressed 1n ttEqual lan are all that eftl' can be derived fran human equality," written to Themas Innd-Bol.U.s in 1790 3 But, nth the idea that s u ch equality, equal laws1 was not to be an earned equality but an endowment at birtb, be was in aceord 4 7 John Hancock What about the man whose signature was to be the first on the Declaration? It does no'\i a ppear that H ancock had any natu-ral prediliction for poli t.1.cs prior to his membership in severel organizations and clubs in I:ost
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nnning in l76S for election as one 0 the select.men ot Boaton.l It would aPJ*ll' that hie initial thinking, in tema of the concepts under stuq, was bound in the relationship ot a mercbaDt,.,.trader to the British Dlpire., rat.her than aa af'tecting all the people and the npire. on ~b~z In a lettel-written in Jae, 1776 while PNeident of the Conttmntal OODgNas and circulated in a nmber of the colord.ees Quicken yov preparations and sthnilate the good people o f your goverment-and there is no danger, notwithstanding the mig~y umament wit:h which we are threatened, but you. w:111 be able to lead them to V.S.ctor:,. to liberty, and to happlnua.2 The 'Vi8W8 of Samuel Adams sboul(l 8"d little by 1fllY' of aample to :remind us o f the influence be bad pnarated in the DlOVIIDBnt tolrard independence, A put-master in the art of ra.bbl.e.,r,rou1.ng he had also hlilt wll 1n securing a1d in ntore respectable qu.artera John Adams paid him the CCIIIJ)lillent of being one o f the three aen moat responsible tor eng1neG'1.ng eventa lead1ng to the Declaration.3 .3John Adame, Lattd to WJ.W.am Tudor; QuincJ"~ S J\1'18 1817, quoted 1n Old Sot,h ~tl4W ( Bostons Direetors o f the Old South Work, Old Sou.th ieeii.ng Rouse, n.3,.), VIII, 69-72.-
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.36 In otis, although incapacitated in tbe perl.od immediateq preceding the rebellion, he had one of tbe foremost legal minds of the times Hancock, although proving reealcitrant a1't t1mes, which soreq tri.ed the pattenc of .Adams I provided the aristoeratto ~\, mak1ng pes.. sible the aalisting ot support 1'rcm the more tlluent segment or the people. Adams s view ot l1berby was that of the social ct\l8ical action. QI IAbex:tf From 11Hatunl Rights of the Colonists as Men, l77U't 11Just and true liberty, equal and impartial libenytt 1n matters spiritual and temporal, is a thing that all men are clear1-v entitled to by the eternal and immutable laws of God and nature, as well as by the law 0 nations am all well-grounded munici~l. laws, which m s t hav thei:l" foundation in the fonier. l He s aware, m.sny years pd.or to the Revolution, of mis guided notions held b)" sme with regard to liberty-. Such notions would make of libeny a license to commit acts of depredation witb out restrai.nt.2 Though endowed with an ardent revolutiODU7 spiri.t this was far trca bis concepti.on of an orderl;Y regulated. fl'eedaa., Restrictions to him were to be limited to those necessary tor the good of the whole.) 2 ~d P 22 {Appendix) -
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James en Reference has all'ea~ been made to the writings ot J Wilson 1n the first part of th.1.s chapter. As an eminent lawYW later serving as an Associate Justice oft.he Supioeme Court o:t t.be Unlted States, bis views re expressed both in the Continental Cor,gress producing the Declaration and at the Convention which produced the Constitution Ch t1bertz From''Speeoh in Convention of Penn87lvania, 26 November, 1787 have remarked; that civ:ll govemment is necessary to the perfection of society-a we now remark, that eiv.l.1 liberty is necessary to the perfection of civil govermnent Civil libert7 is natural liberty 1tsel..t', devested only of that part, which, placed in the govemment, produces more g ood and happiness to the canmnni ty, than if it had raraained 1n the individual.. Bence it follolls, that civil liber'7, wblls it :resigns a part of natural liberty, retains a hee and generous exercise 0 all the human .taoulties, so tar as it is canpatible with the publick weltare.l By birth a Scotsman he took it upon himself to pl(V tribute 37 to his adopted cotmtr.y by volunteering his opinion that the outstanding attributes at the "American Charactu" were love ot liberty coupled with love of law,2 Versed in law and government be was cognizant o f the contending forces which could arise under a Adams
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daaocft\1.c f'orm of govenment unless OG'9fully structured. Thia ~s led h:1m to w.t"ite upC1D both tbe advantages and the diaad'98Zltages of such a fonl.1 Bis v.1.. on equalt t,. co:i.nci-4 w1 th those of other leaders 0n~tz hm, Ccnsi.4-at~_. on the ktre am Blctent ,o.( the lelQ! lative A uthori.t;v;.of the Br1.!4!hParli.ament1 17741 All men are1 by nature, equal and tree no cme bas a right, to 8Jr authority O'VV another withwt his consent all 1awf'u1 government is founded on the consent ot those who an st.1bject to 1 ta such can.sent waa g:I. wn with a vi to ensure and to increaae the happine41e ot the govel"Dtd. above what they could ~OJ' 1n an iDdependen, and un.eon-. neated state of nature. 'l'be consequence is, that the bappi.lless of the society is the .t.J.nt law of etf817' g~. 2 la a democracy the value ol vial by j .-,. ~or the eeouring o.t J\latice receiwd its due abare ot attention. Te lda the at,taua ment of it waa to be eeoum in the dual role played qr the judge and jury, each to be ccnplementary to one another in arrivS.ng a\ the tacts ot a ease and appqt.ng the law Nlated to it. 3 1pw.. P 161 {Appendix) 38 () voia.~Bi~=~~~ffl N!:n Tr:.':r-L-.rw.o Pnse, 18o4) III, 205-06. 3Randolph a. Mame, p 192. (Appendix)
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Roger Shaman Although Roger Sbennan was a both of the CongNSa which produced the neclaration and the Convention wbich drew up the ConstAtut!on h18 writings shecl little ligbt upon his viarpo1nt wlth respect to the cone pta. His ear~ writings were ma~ concemed with the impending separation fran Fngland, and later with the problems of the small states in contention or power with the lamer. Ii:3 was not unaware. before the break with ibg].and1 of the die~ inherent in mv stipulation that Parliament could legislate .for the colonies in some areas but not 1n others. Tbis observation made h1m one of the first to perceive clearq that refusal to sumit to Parl1aments laws could lead~ to a t4.d or cmplete independence. Apparen~ azrr application of the con cepts wou.ld first imp~ liberty ran the CN11ft In a le'\ter to Thanas Cushing, dated April ,;o, 1772 this obse"8tion is VU'ified it will be needful for the people o.f the several Colonies to be agreed in Sentiment as to the~ of their Rights. .It is a .tlmdamental principle in the British Const.ttution and I think must be in every b-ee State, that no laws bind the people but such as they consent to be Governed t:v, therefore so tar as the people of the Colonies are Bound by 1Bn made withou1i their consent1 they must be 1n a state ot Slavery or baolte subjection to the Will of others, if this Right belongs to the people of the Colonies, why should they not cla:lm and enjoy it?l 39
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R. s. Boardman oaupressee Sherman s viewpoint as 1t was evidenced :1n his writs.ngs prior to separation from F.ngland. There was none of the baey' eon.cession that on certain sub,, jects Parliament had a right to leg!. late, wh11e on othen she did not-no groping for the place where the line shoul4 be drawn between the two The colontal poei tion was placed tws ear:cy-by Sherman on those Ood...gi wn rights 0 ma where its an]3 log1cal justification can be placecl. And this was two years before Jettersons declaration 1n bis 0s unnar., View, i that the colonies were J."ightl;r irdependent of Parliament. ~ from sCIIM!I 0 the essays of Sherman mention the liberties and rights of the states, and o f the people nsiding in them. These essays were written in support of ratt.fication of tbe Const1tut4on despite the omission or ar.r,listing of rights to c-tnl act.a of the federal goverment On the other hand1 it your inte"8t arid that or your ruler8 are tm same, your liber\ies are abwldant~ seeure Perhaps the most secure 'When their power is most canpl.ete It is possible that in the infinite variety ot eftftts1 it migh~ beecme improper 8\rictq to adhere to an:, one provision that bas evv been pl"OpOS:ed to be stipulated. A t all events the people have aJ.wa;ys been perteot.\v sate w1 thout &JW' stipilation of the kind, when tbl rulen were interested to make the sa.teJ and never atberwise. 40
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In the same publication t.be unimpeached so~gnty of the states is avowed with the te&tm go,ermen as proposed being 1n a posi ticm to tteeoure the ri.pte and liberties ot tm people. ul The wo!d "NCUl"e" as used bere by Sheman al1*U'S to man in the sense ot being retained ntber than being IIMrq ,.., Agam, as fou.nd 1n the same wri.Ungt: the word eourit,'ft 88 applied to the righte ot the people being amp] sateguarded by the states, 1a in the sense of 1'9tent1on. 2 It -, 1'911 be that tecogni tion of t.he ~1-1.cs of the cC'.l'lCepW in the several states, of whioh Shem.an was wl.1 awue, reavl.ted in treat4.ng \hem generalitiee, too well known to require ar;poai ti.on. After the Declaration and the adopto..on of t?ae Artiolea or Ccntederation thel'e developed an ~gl.y widespread a~, 1*ow$60 1781 and 1187, that tfle. Arttel.M ._,, tailing to provide the pertomance 1nit1allr upecrted of th.el. The need for l'ffi.alon bad been recognised by see e~ &fteltheir adoption w1 thou.\ a sufficient DWllber of atatee, evidencing willingness to sul:aerg their dittereneee in ol'dR to S11CUN c~ acti
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42 difficulties 1n a meeting at llount Vi men 1n 178$ provided. the back gro\llld for the 1-ter Constltnticnal Oomention. The Mount Yem.on meeting led to the Annapolis Convention in the following year which though ttended by cmq five of the thirt,een states led to the resolutim calling for a mee~ 1n 1787 to revise the Artie lhua, though wiable to adjust commercd.al differences bet.lfeen the states the Mount Veman and J\nnapoU.s meetinga ft!'$ ocmst.ructive in bringing about the Convention in Hd.ladelpb:la. In ad.di t1on to the particular need of the states for cc:mmercial legisla.tica,. and the reconciling o f other vning problems; the uprising of the fumel"S 1n western sachusetts NWaled 1ntemal difficulties which might well be duplioated in many of the other states. The i'ail\U'e in performance of the Art.4.oles apparen\17 was ill ueas other than those of individual li.berty. Sigld.i'ic tq1 in the newspaper articles and pri-vate correspondence eaJ ling or a ehange 1n govenaent, there was no ccmplaint aboUt infri.ngement on the rights ot indiv.i.dual cit4.zens Criticism was directed at the existing form ot governnent because of its inabili ~Y to preserve order and protect propert;v, and because of 1 ts weakness 1n the fields of both foreign ani danestic ta:Lrs. The states alone protected civil r:igbteJ tie rights of property formed another caile goey, a ca\ego17 wtth zealous go.udiana. l On the whole theil may-proceed upon the assumpt.1.on that t !mi vj.dual states at t.haii time adaquate reposi tori.es for sai'e-
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wen anderstood and accepted That there vreN individual. or part.icular group 1nstances of lack c,f 11bart, inequali V and 11\3ustice 1s not to be denied, but 1.t would appear that these wre attnl:uted to weaknesses in l&gislatd.ve control l:\v' t.he oenta1al g ovemnent rather than b,y intentd.on ot the indi:v:ldu l states In short, the problems o f t.axat:Lc:n, sound money versus cheap money, 1ntershate squabbles ovar trad.s:, legal acts., the modi.tying of contsiaots, and other ills are attributed to faults t, the national rather than the in"4,Dediate level$ ot government. The stat& govemments, being cl.oser to the people, bad in a number of instances to ..,. to the popular wUl o f tbe people George Mason 1D the 0Gn'V9ntion it would appear that the delegate chl~ concerned w:i. th the uea of' individual liberty was Oeorge Mason, aided lug~ by Oe"7 and Pinckney. 'Whatever concern GXiSted amongs, other delegates was o'V81"Shadowed by the J.arger upeote ot cN&ting a stronger political structure Jefferson's abeence conceivably left. a responsibil1ty on George ll asons shoulders, for botih we,e devoted, experienced champions of personal fl'eedca. other delegates with experience in dmfting ei tber bills ot r.lghts or leg:i.S latton protecting pers
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1laDy' ot the proponents ot 1ndiv14ual llbertq and r.l.ghts who were present at the dratting of the Deelantion were not delegates to the Convention or those who attended. bot.h assemblies the views of lson, Frankl:1.n, and Sherman have been presented Evidence or Sbemans trust in the 1nvlolab1lity of state declara.t4ons of rights rests upcm. his oppoe1\ion to Mason's expressed preterenee to have a bill of righta included in the Oonstitution. l !be v1na of Jlason require apecit1c retaenee through quotation to bis concem for the libanies and equal status or the people. He was a member of the canmittee which drew up tile Virginia clarat1on of Rights, adopted on June 15, 1776 follovd.ng its presenta~on b$' him. He also aided in the formulation ot the Vil'ginia Consti tuU.cn dopted June 29th of the same year. 2 The withholding of his signature f'Nn the Constitution was based upon the lack or a specific bill ot rights and h18 conviction that too much power had been granted to the federal goverraent. He tdsbed the plan had been prefaced wi. th a Bill of Rights and would seoond a motion i f made for the purpose It would g1 ve t quiet to the people, and with the aid o f t.he State Declarations, a bill might be prepared 1n a f hours.) 1 James ).(ad1 on, Journal of the Federal Convent.ion, ed. E H. Scott (Chicago, Scott, Piresman d Co411 tmJ)a P 1'!1. 2Helen HiU,. oaore on4 consti,tutionalist (Cambridge, Mus.a Harvard U n:S.versity Press1 l9)8), PP ijs=;g~ \adis
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en the SatA11"day preceding the .t1nal adjournment on Monday, deepair:lng of 81\Y action on a tdll of rights, be staked hls hopes for future taVOl'&ble action upon the pcesibility of a seeond con,.. '1'b1s CODS'ti tut.ion had been formed without the lmowledge or idea of the people A second convention will Jmow more ot the sense of the people, and be able to pzovide a system re ccmscnant to it. It was improper to say to the people take this or nothing. As the Constitution now stands, be could neither give it bis support or ftte in V1rgi.n1aJ and be could not sign bare what he could not support there. With the ~nt ot another Convention, as proposed., he could sign. El.bridge GerW Of those who were still in attendance on the closing &v' of the Oonwntion,. September 17, 1787, Gerry was the mem'bel" reprasenting a northeffl state, Massaclmsetts, mo declined both to sign and to support the Connitutd.oa In this stand be found support f'mn the state of Virginia Jlaaon ne1 ther signing 1 t nor undertaking to support 1 t,. and Randolph refusing to sign it m, 111 thhblding 11.1.s deoisicn as to whether be would later support 1 'tt. As a known champion ot the liberties and rights or the people it is of interest to note the principal reason which Gerry dvanced tw not signing, as recorded by Madison. After specific reference to eight part1.0'Ql.arl in which be could not acquiesce he stated tba t even these objecticms could be overcae 81.t the rights of tbe Citi zens were not insecure. 2 This is corroborated in Gerry 'Bel>l..v to a Lmdboldv." ~ P 740. 2 J!?W.., PP 74().ql 4S
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that hia /Jfierrr!/Uve ror diaaenti.ng fl'Clll the Constitution, wae a fim perauasi.on that it would endanger the libert:4.ea of AmeriO&J that 1.t the people a.re of a dlf feNnt opinion, the)r have a right to adopt~ Constitut1o!YJ b u t he was not authorized to an act1 which appeand to b1ll wu a surrender or their liberM.ea h6 RelatS:ve~ fw members in the Convention feared the enoroaeh-ment of the tedenl plan of g overnment upon the sovereignty of the states s~ enough to desert the meeUngs. Martin was one of those who did. His concern was baaed upon tbe propoeed legie lative power oft.he cenval goverment aeting directl. upon the people, tlNs in e.ftect by-passing the states. tbout the protec tion ot a 1'eclaral bill ot right.a he app:Nbensive Of the possi bility t.hat individual states bUla of rights could be rendered void. In bis letters published 1n The Marzlancl Joumal in which be upheld bis conviction that a bill of righta was necessary, or that a aeeond convention should be held, he ar;pree.sed bis tears. But the proposed coneti tQt.1.on being intended and empot19.red to act not on states. but also inaediate]ar on 1nd.1vidu.als1 it Z'&ndan a Ncogmtion and a. stipulation 1n favour of the rights both of states and of men, !l(,)t onq propn but in rq opinion absolute'.b' neces&ar7 2 And 1n the same vein, as the Ocmentton progNSeed and he recogn1sed the futil1ty of interesting the bllk of the JBallben in 1.um-ic:1ge Ger17, "Repq to a Landholder, I," sscbuaetw Cent.1ne1t 8aturda71, Janua17 S, 17881 quoted 1n Ford, p. 12MB. ~s, P 36!>.
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the liberti of the people when the cblef concerns d to be the el'eetion 0 a st.ronger nationa l government, he expressed h1a fears tor both the states and indiVS.cluala.l
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48 than such lq' intenU.CD.1 He com~ that "lt is a tom government that is per~ot~ !:ltted for protecting liberty and property, and or eher".lah:l.ng the good citizen and honest un. n2 Robert Yataa of New Yerk was another o f the delegates who lett the Conwmtion before the fSnal dJ'&f'ttng of the Constitution was acecmpl:lshed, being unable to approve of the direetion it bad taken, together 1'4 th lack ot exp ressed. instructions from b:l.a state to engage in mzytbing o~bar than the i-evision of the Articles. le wrote, "Th Qlliss-1on at a bill of rights in this state /jfn tor'if bas given ocouion to an Werence, that the catssion equ~ warrantable in the consti tut.ton for tbe Untted States. u3 'l'h1s was toll.owed by a detatled reasoning as to 1ltJT the state of New York in its constitution bad so limited \be govemaent, as to pia wnt atf9' necessity for a blll of right&. Holre'Yer, in hts think ing, the analogy tor the O onst.itut1on ns taultq as the federe.1 g overnment held broad PCllf9J'8 overt.be states wbi eb could oanceivabq be earoised cont.nry to meting state liberties. Bat tbeae reasons will not appq to the general govern,. ment, beoause it will 11.ppear 1n the sequel that the state gove:mmente &l"e considued in it as aere dependencies, exiating aoleq b7 its toleration.. and J>OfJSNSing powers ot whioh they 111117 be depri.'Wed whenever the general govern ment is dispos-1 so to do,.1' 21bid.,, P 40611 .3nober'b Yates, "letters at S)'dna7;" Helt' York Joumal., Fri4&7, June 1.3, 17881 quoted iii Ford, P 299. 4Ibid .. P 30()
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49 ffl.lliam Uv1ngstoti 'the political ideas of lil.vingatcm and b1s &Upport ot the Const1 tutaon present a paradox From earq manhood he bad used neapapers to air his viea1 and bad established a weekq newspaper with two of his f'riends1 of wh1ch he was the editor. HlB thoughts bave been ccmpiled by Thatcher from a mnber of s ources inolnd1ng lettera and newapapers, the latter including the New York Illdapendent Reflector, Parker s '9W-York oas,tte, and the NewYork leN!!7 Duri.ng both the periods o f the Revolution and the Articles, while govemor of New Jersey, be continued to wr1 te essays upon contemporary subjects. The paradox appears when one considers bis seem ng preference for a weak rather than a s'lil'ong goverment, w.i. th the exception or extended powers 1n cri t..ical periods He seams,. however to have favored a weak rather than strong goverment. This we should expect from bis tnquent insistence upon the rights o f the 1ndividual. It is bom out b.1 bis statement quoted,, ttO overnment, at best, is a l:brden1 tho a neceasar., one b;y his strict eonst:ruc ti.on of bis own powers as governor of New Jersey and by hia suggested amendments to the Constitution, wbioh provided in part for a reduction o t the J)QW8JI' o f the pNBident. Yet in times of emergency he was willing to have the goftmment exercise great power. l In Livingston's ret.-ences to the people Thatcher observes th.at he obviouslq ant hts ferencee to app'.Qr to those who held the franchise~ as separat.e from the rank and file who bad no 1aarow sley Th toher, 1'h Social fh::Uoso1>!2 ot William Li.tell (Cb1cago1 UniYeraity of Chicago rltira.rlis; 1)8) P
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property or independent means 1 Tb:t. refl.ect.ed a dU'f~ conception of equality as compared to that of Franklin and others during the Convention, it mq perhaps be considered a natural carry-over trcm &,glish practice comb1ned with Li.vingstons upbringing as a member of a W911ltby t~. No such qu.ali.fication ia evidenced. in b1s regard for 11 bwty w1 thin the bounds of ea ... tablished society each to enjoy liberty equal.J, subject onl3 to self-1.mposed restrictions or pnsentative government for the enjoyment o f 1 t.2 An extNltle po1nt of view, fortunate~ not held by a majori tq 1n the Convention was held by' Hamilton with rei'81'ence to the ea.pabil1t1es of the people. That oerta:ln r1gbte originated. with the people he was in accord, but questioned their ability to make sound 3mgmente as to matten of policy arid operation ot governnent. It was not so much that he feared their intentions, $0 but be did tear their reasoning in legislative or exec utive matters .. It is a just observation, that the people commonl,1' intem the Alie good. This often ~plies to their very er1'0n. aitlielr good sense would despise the adulator who should pretend that the7 alwa19 r1pt about the means of prmoting itt13 1xt>1d P 2144. (Appendix) -2 Ibid., P 254. (Appendix)
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HI.a reae0ld.ng1 tberefo;re wu that those who 1IU'9 less wall endowed should ohooee the more capable to administer g overnmental needs As a corollary to the abovet the concept of liberty also suf'tered1 tor 1t would appear from his p:ramise that the elite would by the graee of the voten be'\ter detel'm1ne the extent of such liberty Talk about libertv' in the abetraet did not grea~ in'terest him. He waa too practical and it appeared foolish to prate mch about liber\y when it seaned too un.f'or. tunate~ evident t.hat men in the mus ..,.. not capable of governing them8el"f98.1 Sl Hamilton's ettorta to secU1'8 the strongest pos81ble oental gcwernment were baaed upon his feelings tihat the tartber raaoved the main bnnches were fr
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FoUowing the passage of the Stamp Act be encouraged the colonist.& to a mode of non-compl.1ance ra\her than oven acts of violence From Address on Stamp Act s it appears to me the wisest and the safest Course for you to proceed in all Business as usual, w1 thout taking the least Notice o f the Stamp Act If you behav in this sp1r1ted Mamer, you may be assured, that every Col001' on the Continent will follow the Example o f a :1"f1nce {!,eiawareJ so justl;y celebrated tor its Liberty. That be relied upon support tran all quarters in deDJing tea the right of entry beoause of the tax is contained in b1s second letter upon that tu.. Frcm "Isttere on the Tea Tax' s Belie me, JV' Fri.end, There is a Spirit of LibWV and a loft ot their CountJ7 among every Class or Men us, which Experience will evince, and which shew y them the Character of free-bom Americans. 2 Before the topio of 1ndependenoe was spoken above a whisper, ez cept by the more radical of the colonists, he was in agreement with thinkers such as Sherman, to the effect that as regards taxation o~ their own rep:resentati"8 assemblies had a right to :tmpoee them. No attempt was made to draw a line between int.emal am external taxes, tor both were equal.l1' unacceptable.3 It. likewise d1d not escape bis observation that despite the few articles taxed in comp tive~ small measure the acceptance o f them could lead to t.he Wri.of John D1ck1n8Cll ed._ Paul Isicester Fol'd. (2 vols._J ffiliad~a Historical Society of Pennsylvania, 189$), I 204-205. 2 Ib1d .1 P 462. )Ibid. P 328. --
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tablisbuent or a precedent which might lead to .tuture high imposts at the discretion o f Parliament 1 Hls wr1Ungs throughout expose the fallaO,Y of an.y liberty worth having ot.ber than fUll liberty to legislate throu g h representaticn 2 o~ the BlU ot Rl.gbta Before the Const1:tut1.on had been ratified by enough states t.o insure its adoption Antifederalist clamor ror a bill of rights, or preferab~ a second convention, led Federalists unofticia~ to concede the .first method ae being Jreferable. In this wq a trial 0 the new g overnnent could be gotten under way and a more calm and dispassionate view taken of the deluge of proposed amendments. iben tempers bad cooled am party a'Q"ife had becane less bitter a more reasonable attitude would. produce more beneficial results. As the Cmsti\ution had been rat1ed without a bill or rights it remained to be seen how Congress would re ct to the proposed amend ments In the meantime, both North OVolina and Rhode Island having failed to ratify remained in a state of suspension .f'rcm the U nion Of the twel~ am.endlnents aubn1 tted to the states by' 00llgl'9ss, as a bill of righte, the first two which did not deal with personal rights 1'81'8 rejected by the statee.3 Virginia wbioh together with 2 Ibid. P 307-08. ( Appendix) 'nobert Allen Rutland The Bl.rth of the Btll or Rt.~ (Chapel H:lllt Utd.versity of North Carol& Preis, 1'5S), PP 212,:;
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H York had provided the ost important opposi ti.on to the Constitutl.cm, was the eleventh state to ratify the aendments, on December lS, 17911 tms maklng them etfectiw. S!!!!17 In the per.tad from 1776 to 1787 then was an apparent shift in emphasis relative to what canstitut.ed the prlmary concern of the colonists. At the beginm.ng o f that period the liberty to be secured was that referred to b,Y Dewey as "liberat.d.on .trom despotlo ~stic rule. a This represented political freedca despite its economic origin in flaunting the tax progfllm o f England for it charac~ ised aiv law as being Wl.just wbiob was contrary to the theol"Y of representative government Libert)"., as uaed 1n the Declaration therefore signifies po1i tic.al 1ndepend.enc :f'rOm 1'biah it would seem the colonists believ-1 that equality and justice would be natural conemitan.ta In suppo~ or this bell t no enumeration of the concepts together 111.tb speoitio applicat.ions is given apart rran substantiating grievances against a mode or govwmental legislation. This is understandable when one considers that under pnviousq lax legislative and enforcement programs by Parliament the coloni&ts bad depended upon their col.om.al assemblies for the aped.tic laws invoking the concept.a Ewn where royal. govemon were appointed by the King tbe people relied upon their legislative assemblies to mitigate the more arrogant acts of such gQVemors. This the assemblies were oftentimes enabled to do through \
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their control of the p.u"SeSt.ringa, for happily for the colonists SGll8 ot the ro1al gcwernors were dependent upon the alHIDblies for their salaries and other expenaee. The delegates who a pp~ and signed the Deolantton are aetuated largely by the oomidel'atione or individual colonial llber ties, as they applied to each oel.ony eeparate'.q, and not as applied to arq union over and a'bove the proposed states. They vined ar.rr ac-t lfflich violated their gcmer-al.izations of the 11natural rights" of an individual u centrary to both the lawe of God and o! man. By tb.e t1me tJ\9 Oansti tut.don makers gathered in ffd.ladelphia in 1787 the emphasis bad sbilted to the need tor a JllOre aatistaotor,y frame of govemme:nt which could proteet. the t'N.'8 of their independence. Of' the total ot f1ft7 ... f1ve mbers who attended the Convention sewn had been presen'b at the draw1ng up of the Deolarat1on. The Articles bad been tried and found wanting. Ori.gina~ a Con'Vention to revise the .Articles it ended with an entl~ new frame of go~. To most or the delegates there was no need to elaborate en tbe atta:tment of llbu1;y1 equality, and .,1ust.ice for the people. as these had a~ been secured and the responsibility for legislat.1 enactment left to the states. The atuq has revealed the lack of speeific concern on this point except on the part o f the t who deemed the Cllission a major one Though const&tuting m:Lurit, in most of the stai., these who worked. against ra.ti.t.l.cation unless ace guaranteea protecting rights ot
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indS:ri.duals were included instilled enough doubts to further their eau.se. the application or the concepts differed quite marked~ in the coloni.es, and even atter eecurl.ng independence as so-vueign states these continued because ot dUf'erenoes. in state oonstd.tutions, or in some cases to the colonial ohart,ers whew they continued to be used. Nostalgic nee to the ancient, liberti.88 as possessed by those who li'Ved llhen poll ti.cal ind pendenee was f1rst secured, or shortq thereafter) without specU'io nfQence to a g 1 n situation 1s to indUlge in pbantaq. To be C81'tain, what they secured prGmised to be far better than ar\V'tbing previouaq obt.a:l.ned. with the added prospect of being able to gain more through a new type ot representative govemnent in constderJ.Dg that period of history, who today would welocne lireny tba1i could be ci:rc11DSCribed by the debtora pr.l.son1 to an equali v in sufh'age ea.ndi ti.oner! by propc,rt7 or ~her valuable possessions, and justice at law which prohihlted concerted action by individuals 1n the r.t.gbt to baJ'ga1n collectiveq wlth employers? other condi t1.ons equa~ unacceptable to us today' were b)" man.v then considered a normal viewpaint of what constituted just degree of libel't7t equality, end justice. Yet, at that time OIJ.q" those who visualised a broader meaning of the terms, coupled wi.th same ntond.ng aea.11 queat.t.cmed that the ultimate goal bad improftJllent.e, for where the people of one state enj~ liberties not found in another the tendency was for such liberties to
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spread, after a trial period bad proved the worth of them 1n the innovatin g state. It is true that the concepts have in all periods of history bad certain def'inite meanings, but in additlon tbe1" have always c ontained an inde.fini te amount ot symbolism 'fhe danger in ass sing them w1 thout some proof by way of example is in t.nnsterring both t.he present factual and symbol.1.c values to a period wherein the people were not cogniaant of such mear.d.nga. S7
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INSTMfC:SS O F SIGNIFICANT DEVELOFMENTS, 1776-1860 Concep'bs which embrace generalizations tbat vary with the passage of time can prove particular~ troublesane When specifies are required to satisfy a meaningfu,l evaluation for a definite period of time there lm\V be involved differences arising. A generalization, rather well accepted, and presumably eapable or a break-dmm into particulars, mB3' ofter difficulties when the attempt is made. Still fur ther difficulty mq be experienced in applying a concept to a period in history ra:r removed from the present. Such difficulties tom a calculated risk in any attempt to reconstruct the past. .Analyzed eontenporary Viewpoints ma::, and do very with respect to particular events in history, rut corafort m;q be ga.:ined in that some degree ot evalua ti.on mq later secure i'airlv' universal. acceptance, apart from :lndi vidual bias and avowed partisanship of the past. :rn the following selections the major enpbasis has been to interpret outcomes rather than to pre. serrt a f'ull development of antecedent causes.. 89cial and PQUtic~ Forces opposed to democracy were weakened in the wider distri .. bution of land following the securing of independence 1 Seizure of l John c Miller, !n,ug>h ot Freedcg (Boston Little Brown, & Co., 1948)1 PP 650. 5 8
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S9 l'..o7al.1st property, changes in laws of Snher.t~ce, and the opening of lands to the west, all oentribllted a share 1:ut along the Eastern eoast class distinot.icms resting upon he!'edity and wealth ware opposed to at\Y' notion of economic and social. equal 1 zation. Amazing]J, and ill contradiction to the concepts or liberty I equality 1 and just.iee, those who had by reason of the Rev&lution improved their eeoncmic eondi tion were among the stanetus for a clash between the two parties oYel' individual rights. To Hamilton it i'u.miahed the opportunity to blame the Rebellion upon d-emocratie societies fomenting feeling among the farmers. Washmgton s support, :In allow-ing the condemnation of democratic societies, was evidently ill advised, for subsequent putl.ie support favered Jet.tereon and Madison 1n v.phol.ding "the val.us of the flteedom to organize nl In the Whiskey RebelllQn the nati.onal government ts excise upon the farmers t
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converted com was received with resentment by agrarians generally. Specifically, Hamilton's measures appeared to favor the wellto-do and to penalize the agriculturalists. The armers of western Pennsylvania could still be classified as pioneers, with the pioneer s conception of liberty being an absence of restraint That they oftentimes lacked the means of p(:\Ving the excise prior to the sale of their product made the tax doubly omoxious It is understand ... able that to them their e.f'forts to make a product more readily transportable were being penalized b y a non-sympatbetie g~nt, which by force or arms implemented the new law.. As nec&ssary as the action may have been to establish the new strength of the national government the uprising represented a difference of opin ion as to what constituted liberty. The Alien and Sedition Acts are oftentimes considered to have been the first serious attack upon presuma~ established right. a No apreseion of individual opinio n relative to the intent of the Acts could match propaganda possibilities engendered 60 by them Cont.roversy was unlimited 1n ascribing them to be directed against the French, the Irish, and/or the Republicans Free epeech and freedom of the press gave wq to both the real and supposed dangers facing the countryJ whether real or imaginary seeming~ depended largely upon one s political at:iliat1on. Tbe crisis 1n foreign relations which led to the passage of these acts had bee in the process of coming to a boil for several years, largely through political and personal rivalries. T hus from the years 1798 l&>l
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under the cloak of national security the Federalists were enabled 1egally to stifle RepUbl.ican protests of l.Uleonstitutional.ity By November 1n 1796 of twenty-one printers charged under the Se dition Law not one was a F ederal.1st. 1 Whether by principle or affectation the result was to develop lines closely following pro-French or proBritish sentiment, respectively held by Bepubli cans and Federalists, It would be naive to suppose that no fears were expressed prior to this time respecting the oontinwmee ot a government by reason, rather than the development of one by force. Well known as Jefferson, Madison and others were in expressing belief in the ability o f man to rule himself, others, equally wll lmown were of a decidedly monarchical. bent. The latter in-, eluded such inportant Federalists, then in power, as Hamilton John Adams, and Fisher Ames. The leaders on both sides wre aware of the importance of precedent setting under a new government and aristocratic political theory was pitted against democratic political theory The thl"eat to rights is ob s erved by Koch as follows& A society that could only be governed by force would naturally spell the end of the liberties the American Revo lution had won for Americans. When Jefferson and Madison fought tooth and nail against Hamilton's .financial policii s. and against his encroachments upon the jurisdiction of the state :tepartment and elsewhere in the adm:inistration. they were a.cutely conscious of tm large stakes they were proteet1ng. 2 l Claude o Bowers, Jefferson and Hamilton, The S~e f'S: Democracy 1n Ameri,ca (Bostons Houghton '.Mif.f!in c~, 192, p;404. 2 Koch, P 1.39.
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The extremes to which pros~tion under the Sedit.ion Laws were carried ma;vbest be exeq,li1'1ed by the case against David Brown. An itinerant labG'rer from BetblehElll, Connecticut, he had 62 1n his wanderings spent some time in and about Dedham, Massachu setts. In that area he was kno'Wl'l to have deplored the undemocratic tendency of the Sedition Lav, preacbing and distriwting his personal 'Wl"'J.tings to ~hat effect. How much the preaeh:lng and tracts of an illiterate laborer could influence others mq be open to question, but in some wq he attracted the unf'avorable attention or Fisher Ames who recommended legal action against him. Bt'own s crowning crime was to assist in the erection of a liberty pole at Dedham, having upon it a sign bearing "No Stamp Tax, No Sedition." Tried in Boston, without benetit of mone,--ed friendsi, Brown was sentenced to eighteen months in prison and a fine o f $480.oo. Two petitions to Adams for Presidential pardon were refused or ignored .. Arter two years in jaU he was .f1nally g iven a pardon b y J rterson.l The pa.rt played in the prosecution of David Brown by Fisher Ames is wort.by o f note, for A.mes was o f the school who did the founders O f the Federalist parw little credit, and ultimately :inadvertantJ.y aided in the downfall of his party. Writing in 1805 on "The Dangers of' .American Liberty" he decl.ared his inabilicy to accept republican rule by majority vote o f the people. 1James Morton Smith 11The Federalist "Sa:1ntstt Versus "The Devil of Sedition"t The LibeMJy Pole Cases at Dedham, Mass.. 179a.,. 1799" N~ !Jgland ~b't (June 1955), PP 198-215
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They are ce~ blind who do not see, that are descending from a supposed orderly and stable republican government into a licentious dem.ocrao,-1 with a progress that battles all means to resist, and scare~ leaves leisu:re to deplore its celerity. A government by the passions of the m\lltitude, or, no less correctly, according to the vices and ambitions o.r their leaders, is democracy. We have heard so long ot the indefeasible sovereignty or the people, and haw admitted so~ specious theories of the rights of man, which are contradicted by bis nature and experience, that few will dread at all, and fewer still will dread as the,ought, the evils of an American demooraq l The Republican answer w the Alien and Sed1 ti.on laws other than less-well aipported measures by individual.a t were the Kentucq and Virginia Resolutions Jefferson and Madison in securing the int.J!'oduct.ion of these resol utions were pr:lmari~ concerned with the abridgement of persona l rights, hi therlio suppos~ guaranteed by the Constitution against national Ulf'rl.ngement~ To hope tor favorable reception in Federalist strongholds was too opt4mistie, but the action of two states in presenting them far the legislative cons1deratton of other states might secure public enl:1.gbtement m the subject. Results 1n this respect were disappointing to the Republicans, but the result was a more clearly' defined dnwing of the lines between the two parties. The Federalists uphe l d the laws 6) as being constitutd.onal., and geared tor national protection 1n a state 0 neai--'Ql'Bl'-which could break .into a state or declued war at arr;, time. 1 Hem7 Steele Cmmager (ed.), L'l:ri.ng Ideas in America (N Yorkt Harper & Brothers, 19,1), p 21.J.
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The Republicans cla1med the la198 unconstitutional &8 an infringe ... ment upon guaranteed r.Lghts The tum of tbe century in 18001 ele'Ven years after the adoption of the Cons ti tut.ton, and but a scant nine years after the passage of ti. Blll of Rights I had wi tneased d:lf:terencea o f opinion both as to the phi l osophical direction of the govemment and the definittw exercise of rights. Events leading up to both the J!mbargo Act and the NonIntercourse Act, enacted under Jeff, rson in an unsuccessful ttempt to st.op Ehglish and .F.reneh depredations upon American shipping and tbereore intemational 1n character, may have seemed a i'ar cry from national coneem regarding the guarantee of individual rights. Nontbeless, in addition to the dis:regud and refuting of a sovereign powers right to enact citizenship and naturalization lan for itself, the actual acts of pl\18ica 1 violence and. force were carried out against individuals. These acts nre clearl1' violations of the cioncepts upon which the United states had been founded. That they were violations at tbe national level, as against a sovereign country, did not mitigate the actual injury to individuals, nor in theory den;, to them the eonsti tutional protection to wh:tch they were en-t.i tledii! Political and dip1omat1c counsel at the national leVel indicated the setting of a course imtolv:lng self-denial, delay1ng the alleviation of individua l rights to am.ore opportune tbe. However optimistic tbe outlook of those who promulgated the concepts,
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the superior strength of two European nations vitiated their appll cation national bounda:rie 1n the yean helm 1789 to 1809, embriacing the tenns of three presidents, eonditi-.s which oballanged the def'initive and sJll}>ol:lo mean:tnge of liberty, equality, and jus\ice bad been encountered. In each instance no near unanim.1:ty of opinion supported the actions taken w.1 th reEerence to the concept& What was done bad been done 1n the effort to meet condt t1cns facing a gOVUID8nt wi thcNt .t:Lrml1' est.ab118hed preoedents, and consequent~ 1mrolftd d!.tterences of opinion lug~ depement \1P(l1 one s pbU.osopbical viewpoint and :l.ndiv!dual invol nt.. To the tamers of western Pennsylvania the EIICCise upon wtd.skey threat-ened their 11vlihood and wq of 1:1.te, without tangible and apparent benefits To the trappen in mere isolated areas, the tishennen ot the coastal 8l'(AS and the shopkeepers and traders or the more beaviJU populated toms and cities it bad much less eignif'icanc ot.her than a deeoMt:r.'at.1.oa of new~ found streagth residing in the national gove!tlllElftt. To the latter groups no violation of the concept,ion ot liberty as being an absence of restnint was being tbnatenad, for during that period the e'VV advancing frontier was peopled b7 tboee who held that concept 1n highest esteem later, when the geogJiapb:1cal frontiers were abausted, the same ccnoept was to be braced by those lh o created new front-ten 1n business and industry. Tbe Alien and Sed1t4cn Acts wes-e of s1gm..t1cance to tar peat.er mnbelJ tball bad been affected the wh:lskey-excise. Bel'e
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66 a cleu-eut demoast.Jatdon of the power ot a govcment efleettve~ to contNl ou.tapolmn critd.clma of 1te actions. That it waa done undo th& ecntention of a nat.ional Eml8l'genq did not al.lJIGr the feas"S of champions of libertJ' The record of indictments under the Acts wu clearl.1' partisan 1n the dispeM tion ot equality and justice. Pehaps no other single ,et of the Federaliste arrayed so JDaB7 d!.'fW8ent poli t.ical bad-fellowa against thea. To sb1powners1 exporten,1 and im,portem generalq the Bllbargo and Nan-Intercourse Acts iu.-advised1 selt....punishiftlb and events pro"9d, ncn-ettective in securing the desired reaul.t.e+ AIJ bmd.U.atin g as it s tor ship captalns to s\lbmi.t to search and impN881DBnt o f their seamen the a\1.tling ot trade by-th:l Ao1is was Jl10i'e obnax:loua,, spelling w!Jl form..,...._ and traders. Parii.ou lar-11' vebeJlen.t 1n their oppositJ.on 1l'el"G the Ne1f England sta1*1, the st.ronghold ot the Fed.enlists Wltb the aception of Vel'llC:'l'tt tbeN states vo1ced their disappl"OVal of Jeftenona Acts, and t.he proposed war or 1812,. by giving all their eleetol'&l vot.s to Clinton nther than to lladison Jeftenons cho:l.e In the prosecuticn the war the antaganism of ltlW England to 1 t wad to be uen.11' telt. Fram the Acts to the declantion ot war in 1812 the concern over Wr:1.ngement ot individual l'f.gbts bad been sub~ted to the larger orden of national integrity and axparudcn18t desires. \'be otew,ationa ot Madlscm prior to the adopt.1.cn of the Oanstituid.on and aubs equen~ as P.reaiden~ 1&>9-1817, reflect a keen perception ot the natul'e of gcm,rmaent and both the virtues
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67 and fld.Ungs ot the people. He reoognized the danger in e i tiler too much or too little g overnment, as ll as the danger in too little g ovemnent coupled with too much libuty ooorded the people, particularly where the people involved were those of 11 ttle resttaint. His obsenat:1.ons wen expressed in letter to Jefferson, dated October 17, 1788 It is a melancb~ retleetLon that liberty should be equa~ mcpoaed to danger whether the Government have too much or too little power, and that t.he line which divides these axtrw should be so inaccu,:ately def'ined by exper.tence l l'll the sue ,ear be also wrote to Je f tereon commenting upon bill of right.a tor the Constitution in wrable terms, although allowing that certain nghta in question the eD\IBer&tiOD of tbe federal powers. II, Olm opinim has yo been in tavo:r of a b1.ll ot righteJJ provided it be so ramed as not to imply ~rs not, meant. to be inoluded in the emmeration. At the s t.1me have never thought the omission a material detect, nor been anxious to suppq it even b7 sumequ.ent amemment, for any other reason than that it is anx:1.ously des1red by others. I have favored i t because I supposed it might be of use, and 1.f properly executed could not be of disservioe. 2 Maqy )'981"$ later in wl'i ting to Edward I4:vtngston he canmented upon th.e increasing e paration of church and state,.~ in agnement Yd.th the advisabil1t7 of it. Hoind.thstanding the general pro gress made within the t;wo last centuries 1n favour or this branch of liberty, & the l Saul x Padovv~ The c91ete Madison (New York: Harper & Broth rs, 19S3), P 2.SS. 2 P 25).
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tuU establi.s1-nt or it, in some parts of our Count,r.y there remains in others a strong b1aa towards the old error, that without some $Orb o f alliance or coalition between Govt & Religion neither can be d~. supported. Such indeed is the tendency to such a coali.Uon, and such its corrupting inf'l.uenc on both the parties, that the danger cannot be too careful.q gUSl'd.ed agst, and I have no doubt that VW'lf new example, will succeed, as evers past one bas done; 1n ebeld.ng that religion and Govt will bof exist in greater purltq', the less they are ~cl together. And, expressing bimselt 1li th regard to the ccne pt 0 equali t7., F.qu.al laws protecting equal rights; are found as they aught to be presumed, the best guarant,ee or layalt)" &: loVe ot country.; as well as best calculated to cbe:risb that mutual respect & good wU1 among Citiaens of every religious denanination whl.ch are necessar.r to social ba.molV' and mo t favorable to the a
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and the anplo.,ed From a htghq pe-rsca11se4 relaUonsht.p betwen tel" and worker it developed. into a bi~ imper8ona.l1aecl a~ ment. ConoUft"C~ trcn a s1tuat4.an of high mohllity in fNecklll ot oho1ce u to aoeeptable conditions-of wol"k it dewloped that. ill instancee no such :heedaa ot choice mated. A hl.atory 0 the labor movement 1n tbi8 country rests ite roots not 1n the pepular~ thought d1eaati81'aetion with labor c-.. di t1ons but rather in the pride of the crat\sllen to improve their product through adequat;e stanc1um,.l the period fNm 176' to 1815 conditions which excluded mtq" i.llporta1 the !a.bas-go mt lon-Dltercouroe Acts and the war ot 1812, gaw impetus to the dewlopaent of orafW and the elevation in status of the cr<llllan Benet1t societies of both maatel'S and jo\11'DeJSIIBft bad aisted s:lnce the earq 1100s, but not unt.4.1 the 1190' was a olaar o~ made fl'Qll the charitable and be-.ftt type to that of the buga1mng type. oabinetmatces, printen, and ab.oemakem with~ degeea ot S\100e88 formed such societies after that date un.t.U tbe legality ot such eambinationa traa adjudged an 1.llagal conspinoy' in 1806.1 Wba'b the manen could do to protect their pri.ce structure s not accor&ld the joumeJ'IISll in theU wage danand~h Tbe ind1nge against labor organuaticu in Philadelphia were foll.owed by a1mUar cues in New York aDl PJ.tteburglt.. Oourts invoked the &tgli.ah common la l Hoillan J W8!f 1'8b0r in llod8nl !9tri.al Society (Boston D C Haath & Oo., 1')5 J t PP D6,.:2' 2 Xbid:., PP 1))-)4.
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70 to punish cl'8ftemen s demands tor b.1.gher wages through strikes by labeling them a conspt.raey to l"&18e wages to the detriment ot others Sympathies ot a CGlllmm1 t., were in the main on tbe side of the own n whose prosperity reflected in tangible gains to the populace as a whole, The association oJ: empl.oyenl in the protection ot property rights was regarded as perfect1-V proper, whereas the empl.oyee s use of organization to seoan demands was frowned upon as being an attack upon property rights. Dldividual liberty waa then :regarded as be1ftg fulfilled in the employer s right to otter wag for a particular task, and the employlies right to ccept or to reject as they saw f1 t In retrospect 1 t must be borne in m.1nd that du.ring the earl1' l.800 a the labor ot m.alV' cJ'l&ttamen was done 1n the heme or in small comnons, 1n bis writing upon the history of labor in the United statee, summed up lmtances of orgam.sation as foUons In briet, the pen,od to l.820, may ap'li,q be cbaracterized as the dormant period. A continuous and peniatent1etton of wage....amers is }!NV'alent in but two ind.Ustriea., {jihoemaker.s and printUSJ And,. in like mar.mer, a sumnat:lon upon wage agreements 1 \\bat approaches the modern notion ot collectiw bargain 1ng developed ae incidental. to the practice or submitting a price list to individual employers., Neither method however. supplanted the other during this per.lod Indeed the prevalent mode was still that ot negotiating w1 th individual emp~~ 2
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71 According to Professor ware1 "at the sixteen conspirae7 cases between 1806 and 1840 brought against workers thirteen wue against, shop Cl"&ftsmen and onl.;r three against factory wol"kers ul lb would be mistake to aasoc1ate trade unicmism with power machinery, for ear] begim1ngs in factories wen of the hand c~n type Hor was the vardiot of the courts aJ.wa.18 in vor of the emplOJ9l'S for there was d8'9elopin g an reness t t the charge of illegal conspiracy did not app~ to all cases In the Thompsonville carpet Weaven case, 18:,ii...J.636, three vers tried tor conspiracy were f ound not g u.11'8' by the S uprene Court of Ccn neot1.cut, which upheld the vud1ct of the Ccmmon Court, 2 A tew yean later, in 1842 t.he SUprane Court of Massaobusette relaxed certain conditions pertatning to the rule of conspiraq. 3 In the two decades prior to the Civil War the sp1rit ot retom was s u ch that the dirgent. plans for bettering the world often negated the odglnal aims of labor um.one, namell', houn, wages and conditions. Oran4iose schan tor balancing gri.elll.ture against industrialism, socialistic ex.perimente in place ot the ind.i:ddualiem o f danocracy oooperati ve shops and stores, nfona by polit4.cal action, huaanS.tarian issues with slavery being tonmost, 11 contrlbuted to a lack of unan1mity 1n approaches to alleviate what were ocasidered to be un.,ust cond:i. ti.ans. Honver other than lare, P 14.) P 149. )John n JU..oks, fhe Pederal tad.on (New Yorka Houghton Jf1ttlln C o., 1948)1 P u81
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during the panic of 18.57 t,acte um.on organization spread rap.1.d:q throughout the country between 184 7 and 1860 1 Oenualq speald.ng the periods of hal'd times aw 8'V9D understandings of the concepts of l.i.berty'1 equalitf" 12 and justice violated. Jn the period before the Civil the country w.s to witness three such major periods tol.l.Oid.ng the stagnaticn o ttrade and indus~ry brought on by \he E11bargo and Han-JntercOUl'8e Acts. During and follard.rJg the Panic of 1819 the organ.iMtion of workers as impeded both by conditions of uede and the antagonlaa of propeny owners and the courts. 1.1le liberty or the eapJ.oyer wu also that of the employad but in addi ti.on the emp~ was accorded the additional prJ.vil.eges accorded propeJ't7 rights. Despite the difficulties under which they' oi,iam.zed the workers did succeed in the latter 1820 and 981'11' 1830' in ma1c1ng some discernible heacl wq1 to founder 1n the depre sion of 1837 other than tor partial Nlief the backbone of the depression was not broken Ulltil the smmer of 184) by which time the catt organbat1CDS re wiped O\lt._2 From that time until the Civil war, broken mq t:," the Depression of 1857 labo r organisation la quest ot realization ot the democratic concepts was to be formed frcm an enti:req different quart;u represented 1W' the growing numbers o.r those engaged in the factories o r the Industrial Revolu:t1en
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Eduoational; ~. As an acoompan!ment to workers I endeaWJ:'8 to bn their cond.i tlcms, but pel"haps often-ti.Jnes Oftl'looked as sueh1 wao the struggle to secure improved f'Ne public eduoatdon Earq organisations of the era.ftataen and h'lmlallitarJ.an re.formers gaw reeognitim to th need in order to alleviate tbe wide epread in educat.i.on thOse who had the abili tJ' to pq for it and those who did not. A further inequal1 t,y -. fo\lD.d in th use of cbUd labor in the factories, a cendittqn which depnaaed wages and denied euch children the opporturai 'hJ' of education, to say nothing ot an opporturd. ty to eajoy a natural ohl.ldhoed. The na~cmal. govemaent bad earq placed itself on the ide of tNe public eduoation, tor as tar back aa 1 .78, and 17671 under the Articles, the Hc>rthnst OrcU.nanoea bad made land provisions wh:lch applied to the new western states. Tb1a did not mean, however, that adequate provisions wre to be found in the olaer states, tor duri.ag the first balf' of the nineteenth centUl'T proviaions tor education lagged behind the growth in population and the d.-.elopaente ill immatr,y. :r.adenhip wa lacking to imp1'09'e public school systems unt4.l the time of su.oh cle'U'Oted men as Hoaoe Mann, Hlnr,Y Barnaz!cl, and Thaddeus stawns. Hoftee Mann, in particular, not NV'ived iDteftat and a80U1"8d reonm 1n the public school a,atem of ..,.aohuet.ta, but through n1a writings alao aeeund. favorable action throughout 111UCh ot the eowi~. Hts "Annual Report.a 11 did much to spread idea conoemtng the p!d.loeopl'(r and a1ms of education, The concept of equality aa a pQSaible anuali ty has c
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74 nearer to realisation in the public schools becau e of the forts of those who dedicated much of their lives in the field. llann concept.ion of bow best to reconcile the antagonisms of capital and labor resided 1n bis philosophy of reducing their class inteJ:ieste through education. The following is an extract from bis final' ~ Reporti'on the subjeo\ lw sure~ nothing but universal education can oounteJ,rork this tendena.Y to the daninat.4oa of capital and the ser. vility of la'eOr'. If one class pes& s all the wealth and the education; ,mtle the :residue of society is ignorant and poor, it tte:9 not by 1h at name the relation between t may be called1 the lattter, 1n .tact and in truth will be the senile de.pendents and s ubjects of the f'o:naer. Btit, it education be eq~ diffused, it will dn.w property a.ttier it by the nro.ngut, of all attTactions; tor such a thing never did happen, as that an inte.Uigent and practical body of men should be ~ly poor.1 J!:e;l.!e;CII and Nati vi The Fllglish se'ttldnents in the Rn World involving the issue of religious freedom y lead to 8SBurJIPtiOU qvsune that ccmplete freedom of Nliglon was the aim. Escape from religious persecution s not, however, followed. b3' religious toleane The earq s ttlers WN as intolel"allt of dissenting sects as those in power 1n the countri.ea from which they came. ln addition to control by th alliance of church and state the pemecution of minority groups parttcu.larq o f Jen and catholics, was rite throughout the first half of the nineteenth century. Th1s was not a new pbenanenon tor steel.$ Comnager (ed.)., Li??S Ideas in Ameri<;a (Hew Yorka Harper & Brothers, l.9Sl),, p~ S<,7.
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1n going back to the time of the Bevoluts.en discri.mination as general throughout. the colonies, with !few York den11ng \:>(>th groups the privilege of su.ftrage. l Billington 1n his study states, nl:\v the end of the RevoluU.on seven states, Massachusetts, Nn Hampshire, New Jersey, Connecticut, North Carolina, South C&l"olina, and Georgia, specified Protestant otficeholden1 and other states 1nlieted ad d1t1onal Uabilit.ies on oatbolios in their censtitutions."2 B etween that time and 1820 su.eb a tol.eran\ attitude developed that the ph1loaopq ot Jei'fenon and ladison swayed smne states into maldng constituU.onal changes removing soine of the 1nequ.alitiee. 3 Dur:l.ng t.he 1620 s a resus-genc of anti-Catholicism followed the rap1d]3 accelerated iiJl!dgration from Europe, partioularq that fr
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76 found in these conditions the needtd .tuel :for renval. l'ntoleranoe, upon which ne.tivio thrived, reached proportions wbieh grave3" threatened C14., p~ us
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During the decade be.fore tbe Ci. vil war the country was to wJ. tness the spectacular ri.Se and fall of a political party Which advocated discrimlnation against foreigners. Despite this avowed discrind.nation the membusbip of foreign bom Protestants and the exclusion of Catholics indicated its religious bent. Known as the American or Know Nothing party it drew from Dlal\f diverse elements 1n all parts of the countq. Ite girmings have been attributed by Bi.llington to the secret society formed 1n New York in 181&9 known as the Order ol the Star--Spangled Banner. l Hlchols ccmnented upon the Whig attachment w tbe new political force tor mutual. strength against the Demoerata and Beplblicans. Throngs of Whigs Borth ancl South, joined the seoJ;"et political organip1d.Of11 tbe ordu the Star-Spangled Banner, ccnri~ calle4 the Know Bothings I which campa1gned in local am national. el.actions as the Amer!~ Par\7. Its platform 11U 100 per cent Protestant Americanism, and its spokesmen demanded that catholics and foreigners be kept frClll politics am public of't1c "Americans must rule America.n2 Tbe orgam.zat1ons objectives were elearq stated 1n the constitution o r the Natl.anal Cowicil The object of this organization shall be to prote~ every American citizen in the legal and proper exercise of 11 ht.a civil and religious right.a and privlleg J to resist the 1nsid1ous po11.ey of the Church of 1aae, and aU other fonign in.tluence against our republican inst.itutions 1n all law.tUl waysJ to place in all offices of honor; trust, 1:tb1s-, PP 380-81. Franklin Nichols, The J!sr.2\ion or Amencan llem.oe!!V (New York a Macmillan co. 1 1948,, 77
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78 or profit, in the gift ot the people, or by appo1n1:ment, none but native-born Protestant citizens., and to protect, preserve, and uphold the _Id.on or these states and the Constitutim of the same. The membership secrecy o r the Know Nothings led to ini tia1 political sucoesaes which startled their opponents. Local and state victories in 18$4 and 185; led to expectations that much could be aec<1nplisbed at the national level, even as optimistic as placing their candidate in the White House in the 18.$6 eleotion.2 The sectional dissensions during their rise and tall gave the lnow Nothings, a etJ'Ong minority party, an exagguated sense ot their political importance In contrast to their local and state achievements success t the national level was not .f'orthcoad.nfb tor nei the.r in the Democratic nor the Republican ranks could the7 eeoure support for their antd-4,md.grant proclamations. The desire of a majority in Congress s to alleviate and to Jleduce pauperisa crime and riots engendered by rel1g1ous .f'aetions, but the cure ottered by the Know Nothings s clearly other than that hitherto considered to be caisonant with the broad American concepts of liberty, equality", and justice to all-. Its f!.naw Nothing -pvt'iJ principles wen inim:Lcal to those on which the American nation bad been founded; its danands were of a sort that ceuld never be realized in a count17 constituted as s ~he United States. Thus the partys success oontrib. uted. to its failure! for its leaders, once in power, wel"e helpless, and 'the people, realising th:l.s, bean to deser\ t.he organization 4s rapidly as they' bad joined;::, 1 a U .lington,. P )86. )Ibid.,, P 417
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The inow Nothing choice ot FJ.Uinore as their presi ntdal candidate coupled with the rising elave17 isme, spelled the end of the party, tor in their daeire to aoh1eve national growth they deaerted their own tenets to plead for nat1.onal unity. Earlf ~tie at lave1., 79 DUiing the period a~ eO'f'fl'9d, attention has beee focused largely upon fffltnts at the national leftl. A\ this time it may be enlightening to view bri.811.y sCllle applications of the concepts at the statss lsvel. Ezamples wbiob foll.Ow were not exclu81wll' held by the states mentioned for like eond1\lons were duplicated 1n m&n,' of the states. Such cend1t1ons may 'be Glaae1tied as ta.U.ure or lag in granting Cons1d. tutional freetlcma downwani1 but at the sallle time it met 'be Nlllellbered that the states were under no caap.wd.en 1ft the aero1ae. of their aoTeri,ga ~, to grant ucll tNedCIIIS. In Kassachusetts the concepts as they applied to suttrage and religion ware violated unt11 wll 1nto the nineteenth oentur,. 'l'bat 1s to tfl4Y', they 'fl9ft violated on:\v' with Nterence to present day meanings. Bastricted meanings and appl.icat.tons were llhol.q i.n aceord with accepted viewpoints of those days. Not until state consti tut.i.onal amendment of 1833 were the oh\u'ch and state separated_, remoVing the church frca support thrwg h taxation. Religious testa for the holding of most public off'icea bad been done awq w1 th in 1820 .. At that same \iae* pn,putq holding as requisite tor voU.ng was also :resei,nde(l However, it was not unt4.l 1840 tbat for
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8o o.fficeholding in the General court and the Govemors Council that prope~ holding was done away with as a conditional .tactor-. l The property holding clause as a requisite for holding the b1.ghest political positions in the state would bear out a contention that it created a political oligarctv" ra'hber than a political democracy. According to the dates given above re1'e:rring to rel1gion1 freedcn of rel.1gion1 as viewec:l today with respect to the s pa.ration of church and state, was thus not who~ achieved 1n that state until 240 years atter t.he landing of the Pilgr.tms, and fl.tty-one years after the passage of the Bill of Rights, Also o f interest as an u:ample of class legisla\ion was the Fifteen Gallon law passed in 1833, under the provisions 0 this law no leas than f'itteen gallons Gt liquor could be sold at a time, which practicalq eUud nated the lower economic classes from the market, 'l'bose who bad been untavor ... ab~ legislated against showed their disapproval or this bar to equality in the next state elect1.ons 2 Rhode Island lagged behind Massachusetts in its rescinding of the freehold qua11f1cation for suffrage, which had been established in 1 ts cons ti tut.ion. let until 1842 was 1 t at,apdoned.1 and then onJu in part, tor a freehold quaUtieation of $134.oo warth of properly ss still imposed upcm naturalised c1tl.zens; lva.lli.am J._. Beid and Herbert o~ Regan, s chusette,, His~ and Oovernaent af the Bg; State (Bew Yorks axtord Book Co., 195g~ pp. 1A. 212!!' P 81 4 3obilton Williamson "Rhode Island Suffrage Sinoe the Dorr war,0 New England Quarterly (March 19,$), pp 34-So.
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During the same period many of the states o r the Old South bad made progressive reforms in politacal and religious rJ.ghte. As result ot the constitutional conventions during the 18.3os, property qualif1eations tor voting had been l'8lllO'ved by a majority of tbaa. I4ke qual:U'1c ti.ans tor officeholding had also been removed by all but South carolina and Louisiana,l In the South the pr.i.ncJ.ple of separat.i.on ot church and s te was eai-lier establi bed '.l'hcnae Jetterson, it bad been accomplished as ear~ aa 1786. Between the mid 1820s and the l&;Os a daand tor retom 1n 11181V' varied awnues nept the country. A practi~ wbioh bad long -denounced was 1;hat ot imprlsc:mment for de~. The p:rac tice ja.Ued for 61 ing circumstances such as 111.nass, failure to find une :M:ve wOlk, or like reasons beyond individual contl'ol. The evils of the practice subjected Dl8lf8' honest but unfortunate people to assoc1ate in prison with law breakers and criminals ot a di.tterent Uk, and deprived oeietq of the possible benetits a their productivity. According to St,Nn, nan average ot TS,ooo poor debtors were being imprisoned amually-bal..f of them ar less than t.ntr-d,ollar debts. n2 ~c1s l:Altler Simldras, 4 Hl.sten; of the South (New York: Alf'red A Ifnopt 1 19S)), P 108. 2Artbur S~t Last of the 9ooked Hat.a (University of Oklabclna Preas, 194S), P 351.
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Through the 1830 s and 1840 s SGll8 o:t the harsher meuunta wre repealed in Maasaobus tta, but 11; was not until 1.85, that such )an were pealed in total there. Elsewhere throughout the st.at the pactioe was nntumed up to the t1me o the Civil \'IN' S3!!!Hl traditional ola.sa lines 1"9$t:rioW the application of dao,,. 62 ore.tic idealism to thoee or le.ss fortunate circ11DStancu. other than in tront.ier areas the defenders of sueh traditional class comcd.ou.snus ga1n8d stiiengtb b. the incteaBed n1.11ber of tboae who aoq'd:lred property. As earl7 as 1794. even in the secondary b\entier aNaS the conoeptlon ot liberty as being an absence of restraint g ave way to the conception ot regulated restraint. Poli tica.1 acts such as the excise upon wbi.ekey and the Allen and sedition Aote1 enacted betOl!'e usoo, sei'ioua1J' challenged the 1deas of JlaD1' as to their deft.ni1d.ve-rights. Subsequent acts Nl8trictd.ng oreign tnde gave rise to a eeparation lllOV'ement in tbs Kw F.ngland atatea. As the eeonemlc condi t&.on. of workers continued to be eubjugated to the govemments gl'e&tex' regazrd or propertq rights, implemented by court decnea and injuraot.1.ons in favor of owners and employers, there Elelfeloped an tnereased diseatisi'action in labor ranks. This d1ssatit1.faet4.an was augmented in ti. t1mes be.twe the Civil war 1V' ttu,,e ma~or periods ot depreuien.. Concurrent with dmaMS :toll imprOftllletlt in the.conditions of labor was tbat of inte2.'est 1n impro'ftd education.
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Rel.igims persecution of minority groups, spurred on tv the poli tioal pla~onn. of the American party, was rampant in the years just prior to 1860. The avowed discrimination by that part,y led to its downfall, as national support eould not be enlisted to fur ther measures thought eontraJ:'J" to the American y of lii"e. Confusing a the applieation ot the concepts was at the national level it was further eaaplicated by the lack or uni.tom ppl.1. tion at the state 1.evel 83
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G~IV S~lon 10 Habeas, ,Oma@ Canpafable to the indi gnatlon aroued. by the Alien and ~tion Aet49 o.f mo~ than sixtq yea:r.s earlier was that oecasioned by the suspension by L.i,ncoln. at the writ of habeas cequs enacted I I durirag the period of the Civil war Despite the ertticistn attend-ant upo.n the s~pension, am in clear recognition of its importance 11\ the ourtail,ment o Ubert,-1 Lincoln as faced with the stark tac\ that. not to do so would jeopal."dise the .ar effort. During the war Uncoln dem.onsti,ated that the swapens1on 0 the writ was not par\ of a ci,usade to curtail aU liberties, Newspapers adjudged by Oen~ Burnside to be aiding the OCI.U'ederate cause .. and con sequent~ closed down.t were ordered reopened by' L.1.noe~ A like action by Secretary or War Stanton, c&l"ried out by General. Dix waa also oveffUled by Uncoln 1 In the ma.in, the suspension of ~beu core!! was not to carry out prosecution to the lette~ of the law but rather to acceplish the u.edia\e imprisonaent o f those BUSP\'cted tote dangerous c1 ttzena. Arbi W&l"Y' urest and confinement achieved the purposes
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at the ea;outA 'brancb.1 Su.eh arbiV&l7 act:S.ons could be justi. tied oni,, under the plea or pret.ecting the public etatetq1 at a time when the ordiDU7 cO\U'Se of .tonnal :lndiotment and trial could not ber or av.rests and the relati '.b' tw cases brought to trial would aubstanti ts sucb a contention. 2 At the sana time the failnre of ~s to enact legislation ourbing the. suspension by Une.oln, and later approving 1tt was indicative of their lack ot desire at the outset to challenge his pel'aptory powiera, or to enact su1 table legislation to control the wnedia-situation. Through the Y'e&l'I di'f9rg$lt oplniou ha"te been ex.pns-1 Ngud1ng the suspension of &1'T part or the Corust1 tution during peri.oda of emergenq. From the bigbe#t court. Mr. Justice Davia 1n 1866 ex:pftSsJ. n.tuted the doe1rllie 1n "No doctrine, invoking more pemicims consequenees was. ff&r ilfflJnted by the wit otm.an than that $1\Y of 1 ta /flomt1 tut.ifl!V provitd.aa can be suspended during afl3' ot the gNat exigencies of gcw~nt, And 1n contrast, Mr Justice Sutherland in 1931 wrote "To the end that war mq not resul.t in deteat, fN.edan or speech my1 by ac't ot Congreaa be curtailed or dented so that the morale ot the people and the spirit of the anq lll\Y not be broken by eed.iU.ous utterancea ..b 1 'J O~ RandaU1 }4.ncoln The_ Liberal Sta~man (Hew York Dodd, Mead & Oo., 1947) P 1.25. 2tb1d., p., U6. 3F.raenkel1 P 22. 4n>1d.
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86 In the 88.DE ~on man,yother rights were pla ced in the same category as i'Neds ot spee c h As wi tb a number of Presidents who have taken strong measures to oppose an immediate danger., l4neoln bas sanetd.mes been c haracterized as a dictator, partioulai-~ for the suspension of babe&$ corgus Yet, that aetion was in eontnst w bis lmown conserva-tive and liberal expressions and actions. H:l.s views upon liber\y1 equality and justice were known trom spoken and written pronounce... ments, and bis stand against nativism and slavery upheld them. Prio r to his beeaming President his sentiments re Yd.th the Gexman citizens of Ill~nots, included by the nativiats in their anti-all.en attacks. Later; while President, be revoked an order of General Grant which deprived Jews of access to mllitar., department 1:1.nes. l of the 11\VthB apparen~ still perpetuated today is that of bis baVing entered the Civil Y1ar with the intention of ending sla'V917 That he abhorred 1 t and wished for its u l ;tamate extinetim is known. :rn a speech at Springfield 1n 18'7 this viewpoint was well expNSsed, and 198lded into his conception as to the intentions ot the writers of the Declaration upon equality~ They meant to set up a standard maxim for a tree socie1:;y which should be tamil1ar to allJ emstan~ looked to, coa st.an~ labored tor, and e-nn though never pertec1;l1' t,.. ta1ned1 oonstant'.q approx:f.mated t and thereby' constantly-spreading and deepening its intlneno and augmenting the happiness and value of life to all people of all col.ors evm:ywbere. The assertion that na,lJ. men are created equaltt was of no
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praotaca l use in ettec'b.ing o\11' s pan.Uon tr Great Br1tainJ and it was plaoed 1n the Declaration n o t for that, rut fot i'Uture use, Its authors meant it to be-est thank Godt it is now pl'Oving itself-a stumbling-blook to all those who 1n after t1.mes might s k to tum a me people back into the hateful paths of d potia. l Although as bas been noted, the Ul.U of Rights was not binding upon the states,. the passage of the F ourteenth Amendmemi in 1868 opened the way tor application in the states of rights referred to in the First .Amendment. From that t.lme to the present the scope or applicat.i.on has been er.tended to bring a b out oontEm por61'7 adjuetmeata 1n the area of conceptual equal1 ty. The due process" clause in the amendment bas been variously interpreted, and ocmeem here is not in tbe aspect of business regulation but mther with its impact upon individual rights. Fraenkel observes, "In this way the due process clause became the door through which 87 of the guarantees of the .tedenl Bill or Rights be entorcible in .federal courts against state action. n2 As to freed.cm o.f speech and of the press it was not until 192$ that a unanimouB deoi:don o f the Supreme court. protected it from 1mpai:rment. the states. Pr:lc:>r to tha t time it was hel d that the states bad tbe rlgbt to extensive l1mi tations. The case o f Gi tlow v the People o t the state of York -.s the decisive case producing the following important dec1sim.
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For present purpose& we ma-r and do sume that .treedca of speech and of the press wbioh a,e protected by the First Amendment f1'Cla br.l.dgmant by Oangrwa are among the .f\mdanaental pen(lla}. n.ghts and "11berties" protected b7 the due process clause if tbs Fourteenth ent fraa iapair-ment by tbe States. 8'en to the earq years of tbia centUJ7 the Maning ot the Flnt ~nt wu caaidered to embl'&Ge protection against prior restraints, and even this was not absolute :tat.er 1 t wae bel4 to aan full expreanon, bu\ subject to the "clear and present danger0 clause, apnaaad first bJ' :ur. Justice Holmes 1n 1917 The ques'tion in every cue 18 whether the words used ate used in such ci:rcumstanoes an4 are of suah nature aa to Cl'Mte a clear and present danger that they will bl'ing about the substantive e'Vils that Congress has a right to prevent. It is a question of pl'OJdmlt7 and degne,.2 Of interest as u :l.nterpretat4.a and ol.ar1f1.eat.ion of the "clear and present danger" elauae ii the opinion of ur. Justice Brandtd,s 1n 1.927. Those who won our ind~ b.Y revolut.1.on wue not cowards Tbe7 did not tear pol:ttioal change. 't1187 did not exalt order at tbe c"t. of 11~7 To courageous, self'-rel1ant men with con!idenee 1n the power ot tree and. t.-rless reasoning applied tbrOugb the processes of popular g ove.rment, no danger fiowlng fJ'Olll speech can ba deaned claar and present, unless the incidence ot the e'Vil apprehended is so i nrninent that 1 t mq befall before there is opportunity tor tull. dtsoussiOA,; 3 SU.pension of pbeaa COl'J>U8 by IAncoln again nised ~be question 1n~,1. 88
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present danger" clause does ~ric~ its operative zone, bu.t there the dec .ision as to what is clear and present is a subjective one al.lowing 0 more than one in:berpretation. The Fourteenth Amendment provided the means vmereby a more uniform applioation of the concepts could be secured in the slates As it implements the provisions of the First Amendment it made possible federal protection of th.ose rights against state action. F4.:f'ecw of Recent !W! on RifE!! Eepionage Acts o f World War I Similar to the controversy aroused by the Alien and Sed1 tion Acts of 1798 and Linoolns suspension of habeas corpus was that resulting trcm prosecutions during and short~ attar World War I days chiefq under the fedaral Espionage Acta. The Acts imposed imprisonment am a fine m specified spoken or written opposit.ion to tbe war. In 1917 the federal govennent, concerned regarding words or actions which w:>uld 1mpede; t h e war effort., passed the F.spicnage A erts. These acts were pr.l.maril;r aimed against statements made with the intent to aid the enemy, omtructing recruiting, or causing insubordirw.t.ion c .f ~l i,,rocps Most ot those punished under these acts re Soc1alista advocating doctrine a gainst war. It was c<>ntroversial large~ through the laok of precedent 1n drawing clear-cut lines or demarea .tion as to what constituted violations o f the freeci<8 involved. Chatee SUDDarizes,
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t'le of the most illlportant purposes of society and govern ment is the d1SCO'V9J7 and spieacl of tratb on subjects of general concem. This is possible onq through absolut.el;v unl;f.m1 ted diaeussion1 for, as Bagehot points out, once fone is~ into the argument., it beccmes a matter of chanee whether it 1s throwtl on the .talse side or the true; ayd truth loses U its natural advantage in the contest. Ho..,..., balanoecl against this Oba.tee points to the neceasa17 purposes of g overnment which mu.st be balanced against unli.Jnited usage The lack of preeedents bas made it possible for jUdges to i.Jlpose deoi81ons based upon their mm pereonal standards. In order that both the 1nd1vidual and social interests be protected it baa been suggested that "tlhe great interest 1n bee speeoh should be sacrificed on~ when the interest in public safetyis really s.aperi.led, and not as most men believe, when it is bareq conoeivable tha1; 1 t 7 be slight) affected. n2 The AJ.:t.en Registration Act of 19.40 The fear of ar, or war 1 taelt, irs genarall;y accompanied by acts or twster.ta, even among those no no~ believe in adequate sat_.rding of individual ri.gb.ts, '!'be AU.en RegistnU.on Act of 1940 18 regarded by an;, as .falling in the categox,-of such an act.. Enacted pr.I.or to Ola' aotiw ent.r;v into World war II relat:i:vel;r little of it 1s apecU'ically fl>plicable onq to aliens. 0parable to the Alien and Sedition Aots of 1798 1t was the second peacetilae sedition act passed in the history of the ll'lited States. lzecbariah c~, Jr., Free SJ!!h in '\:.be Urdted Stat.es (Oambridges Harvard Un1.ftr81ty Press, 1941)1 P 31. 2 Ibid P 35.
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91 'l'be implications residing in the various bills constituting the Act, as reported by Cha.tee "contains the most drastic restrictions on freedCJll o speech ever enacted 1n the United States during peaoe n 1 The purpo s were stated to be as follows 1. To prohibit the advocacy or insubordinatii1 disloyalty, mutiny or refusal. or dut1 tn the military or naval fore of the United States. 2 To prohibit the advocacy of the overthrow or destruc tion of any govemment of the United states by force or violence. J. To add several additional g rounds for the deporta tion of aliens to thos a~dy provided by law 4. To rmi. t the suspension, subject to congressional review, of deportation o. aliens in certain "hardship oases" when the ground far deportation is technical in nature and the lien proves good moral character. 5. To require the regist,ratJ.on and fingerprinting of aliens. 2 It would appear from the testimor\V 11h1ch aecapa.nied the demands tor passage 0 the bills t,hat the dangers to be avoided were neither at the time, nor subsequent-1.y, of such nature as to warrant the need for such legislation. Kuch of it was in the category of being an anticipated danger, with many of the anti.oipat.1.ons already covered by existing sta'tutes. In opposi 'ti.on to Section 2, Representative Hinshaw of California subnitted bis fears as to possible future interpretation and usage I sulm.t to you .. some word or thought that we as oi tizens might express offhand,, without intending to violate the law, m1ght be taken under this title to mean something very serious, and a man could be subjected to persecution and to the heavy penalties of this act. I do not think it is r1ght1 l do not think 1 t is fair
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I do not believe in meeting intoleNnce with lnjutice, I value lfl' liberty 1 as did my euton who foUght to set this countr,y .tree. In a&liti.on to th ~ct.ion on flN speech !.nberent 1n the act, the satne Sect.1on 21 1n one er its claaes, invoked SOiie~ enttre:13' wit.bout precedent in American wadit.ion~ Under the Act, guilt, could result trm association as well as tNm a persol'l&l act. In bearing, on the same pr.i.neiple with reepect to the propoeed setition ia. of 1920 ilh'ed Bettman placed himself in opposition by praaouncing it to be an a'teoluteq caplete depature from our tl"aditional daaocratic doctrines. e2 Geneztal.q speaking the years boa 1862 to 18'0 weiie t~ able to tbe formation and extension of Wade unions, The d.eprefl sion JMr o 186 7 and the Id.nor b\181tuias d1tficultiee in 1870 _,. not prolonged enough to limit labor organuations in their~' BOWflver1 with the depression beg;lnaing in 1873 and lasting until 1879 the aore or lees peace.tul tftde aot:lvtti aharaeterized by picket line. s and alk...outs, with occulonal violence, changed into a v.lo:lent phase in which illegal and force.f'ul aot1Vities cH111a.1l7 marked wrkers1 d_.. Dl dUtvent pans of the count.r,-1 11otab:q, 1n New Yeltc1 Pi ttebulgb1 Pbllaalph1a and tJwough the Middle Weat .. P 465. 1Ih1do P 470. 'wue, 1-'bor in lto4!m ;tne!',ril S!9&etz, p, 163,
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93 v:lolenee in various forms broke the bounds of legal control.. Property and lives were destro,ed to such an ext.ant that th actions or the workers and strikers set public opinion a gainst them. Notorious even among the advocates of illegal f ore to secure dana:ncht were the Mollie l{flgu1rea of Pennsylvania, workers in the anthracite coal :fields. This secret organisation bad thrOUgh v.lolenc, against foremen and others in charge of company-property, secured naninal control over mBJ\V' of the mines and stores. Throu g h bl'\ltality against those who opposed them, not even stopping at murder, they controlled the output of the mines through supervision ot the Id.ring am tiring of miners at the pit heada. Their power extended fl'ClfJl the 1860 s to 187,, broken onl;v' by a two-year invest.igation which resulted in the latter year in the trial and execution o a score or the leading mem.be:e and the jailing of many otbera l Organ1zat.i.on of the miners to secure mueb needed reforms was delayed JDM1' years by the odium attached to the brutal1 -U..es practiced by the Mollie Maguires. The repercussions of the Hamestead Strike o f 1892 assumed national p roporid.ons in tbe endorsement of the Populist platform preamble by a grand ju17 of Homestead. In their indictment the grand 3\117 charged the P1nkerton head,. Willi.am Pinkerton, and offi.-c1als of the camegie Steel Oom;pal\V' with treason, murder, and conspiracy. The preamble bad deplored the use o r hired gun batls to quell the
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steel workers, and formed the 1-Sis ot an appeal for Democratic support in the tortheaming national elect.ions. The three~ hired gunmen Wf1ll'9 PinkeJ"ton agents whose battle w:l th tbe lecked,. out workers resulted in a sc ore of deaths, and a larger number of wounded With the .failure of the P1nk'ertons to gain the as,-lum ot the steel plant,. Clamegies manager, Frick, sou ght for and secured the Pennsylvania mllt tia to stablish mart.1al law in Hmestead. Private armed toree having proved inetteotive in this case, NCOur& to g avermaent armed force e.ppea.hd to the workers as a \11o]4tion of th concept or justice, a feeling which .had been developing sim the use of the :a bor injunction in the 1880s This weapon agai.nst labor bad decl1118d in use in Engl.and, where it had its inception, but was to becane a potent weapon in the hands ot capital in the united s tes.l The combination ot state and federal troops canbined with the labor i.njunctlon wen to prove effective in preventing any strong organization of steel workers from the t1m of the Homestead debacle to 1917. During the latter part of the nineteenth centlll'J" both the employers and the empla,ees .... tor la.ck ot organizational precedent, bee
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The 4111ens1cn of the HmastM.d epl.aode mq be read in the many facets that it toucbed ot American 11.i'e. The pre&sions and exchanges of views that 1 t stimulated on key issues indicate it& cball.enge to the social and eecnOlld.c thought of contempol'&r.1.es. It etiaUlated a new ....... o the mttent to wh!.eh claimed tmman and wadi ttonal propertyrights could be 1n contltct.. 1 FoUOld.ng the w&'f89 ot unsuoouaf'ul 1tt-1.kes th:toughout the country and 18eued D8U' the eloae of a long depnasion, the Dlau,.. gunl Address ot President MoKinley in l.897 could hafll been Ngudad by many 10 rkers as a eonoeptual viaion still a considerable distance b'ODl attainment. Equal1 ty of rights mut prevail.1 and our 1Pa ai.. wa.vs and ew~ respected and obe,ed. we may haw tailed in the discharge of our fU.U dutf' as c1 tizens or the great republic but :tt is consoling and enc.ouagtng to reali1e that hae speech, a tfte pxess, f"8 tbought.t free seb.ools1 the free and umoleated right of :religious li'be:ny and worsbipt and bee and fair eleetdons are dearer am DMf>Jl'8 univenal.l.J' enja,ed today than ev beto,-.2 I>ud.ng orld waa-I the trade un:1.ons gained strength, but ccnditi.fflS immediatel.1' after the ar, which included a depression 1n l.921, gave employers the upper ham in MF bargaining attempts. Demobilised soldiers, a falling ott in exports to impoverished E uropean countries, and the acc111ulated I' wealth of big business were .tacton in favn ot the employers. Growth of unicm.sa waa thus aga:Ln de~ untU the re tav.onble years before, dur:lng1 1.ntel AU'on (ed.) 1 AA!r104 1n Criela (Bew Yorlu Alfred A Knopf; 1952), P 16h, 2 speechea .and. A.d
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and tollow1ng WOr:14 r II, when the ccm\:d.nation of the Amer.Lean Federation of Labor and the Congress of Industrial Organizations was to boast of a mmbersh1p of approximateq fifteen million workers With the rise or modem corporations throu.gn the 1680a added emphasis was given to the ld.nd or role which ought to be filled by government. Two schools of thoughtt not new to be sure, bit now called into more aotiw pllq had to do with the intervention or non intervention of the government Favoring tbe sohool of no 1ntel'-vention was William Graham S\1111.er. In defense of capitalism bis views ot ind1 victual liberty, equality, and justic are of some note t<: they were wide~ publicized. l'Aben.;r means the s curity glvm to e~ch man that, if be employe bis energies to sustain the struggle on behalf or hi.msel.f and those he ~s or, he shall dispose of the product exclusivel;r ,as be chooses. It is impos sible to know whence arr; definition or criterion of just.tee can be d.eri ved, 1f it is not, deduced from this view of things J or if it is not the detin:1-taon 0 justice that each shall enj07 the fruit of his own labor and sel-denial1 and of injustice that the idle and industrious, the sell' indulgent and the self-denying, shall share eq\l&J.l1' in the product. Aside from the Eriori speculations of philosophers who have tried to make equality an essential element 1n justio, the htnan race has recognized, from the earliest t.imes, the above concept.ton of justice as the true one, and has fo\lld.ed upon it "t,he right. of property.l During the initial period o! corpe>n&tion growth the union organizations made little headway It YIBS a movement that would not be denled, bowe.,.., or the 1ndi v.Ldual worker was beeaning e'V'BD less all able to control his interests against the impersonal
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91 corporate st,zrength., tbier Pre ident Theodore Roosevelt, um.onism received encouragement when the g ovemment tbl'eatened to take over the anthracite m1nes unless the ownen showed a willingness to arbitrate dU'ferences with the united Mine Workers. Also during the first d.eoade o f the twentieth cent\117' came increased gowm-ment intervention in the eaonomic af'f'ail's or the nation. Roosevelt's coneem r or social. justdce was reflected in various acts or legi8 lation. We are face to face with ri conceptions of the relations or proper1;r to h\1laan weltare ~ The man who wrong];;, holds that ever., human r.Lgbt is secondary to his profit must nour gt n Y to the advocate of human welfare, who right~ maintains that every-man holds his propeny subject to the general right o f the 0C11Dmity to regulate its use to v.hatevel" 4epee. the public welfare require i t.l A cmparison oE that statement with the foUowing expression fr<111 Sumner trill indicate the wide variance in viewpoint, even allowing that the utterances 1181'9 a generation or more apart. What we mean by li'ber\y is civil liberty under lawJ and this means the guarantees of law that a man shall not be interfered with while using bis own powers for bis own lfare. It is, therefore, a civil and political statusJ and that nation has tbe treest insti. tutions in which the guarantees of peaee tor the laborer and security for the capitalist are the same. 14.berty, therefore, does not 't:6' my means do away w1 th the struggle tor existence. It is impoa s1ble t-hat the man with capi. tal and the r,ian without capi ta1 should be equal., 2 loam.el R Fusteld, The Economic Thon!ht of Franklin D Roosewlt and the Ol'ies of te Ne#. & C Torka Columbia Uni-versi(f Prese, 19$6). P Id. 2CCXll'Dager1 i~ ldea8 ip, .Aaerica ; P .329
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cultural planning, directed towards the broader aspect&, or liberty, led to statements d1J"eQted towards the f'Ull use of nature's boun.\t After a.u. it I own. a farm of a hundred aeJ"eS and let it be waste and overgl"Olm, I am just as much a deevo,er of the libert.y cf the comnnmi ty,-.and by libel*ty we raeatl hap.. piness and prosperity-as is the strong man who stands idle on tbe corner, n.fwd.ng to work,. a d.estrowr 0 h4.a neighbor a bapp1lteas, prosperit,'; and libert7. l Interest in var.tous re.forms was also the chief eoncem in much o:r the life of Woodrow Wilson As govemor of Hew Jersey hi.a interest 1~ the workel"8 i'enlted 1n an empio,w. 11ab1lit,' a.ct aa well as act.a better to eontl"'ol oorporatt.ona. As Preeident-, W1lsons admini.etiration _,, en the whole tr.le~ to labor, wt.th Franklin Delane Rooaewlt ta handling of the Charlestown Navy-Yard problem in 1913 a eontnst to the then dominant opea-ehop pollo1ea 2 regarded as one with idealistic geals tar in advance ef his tl.mes, lsoa bad due J!'88pect tor t.he ferment in the masses which bro\lght about change in conceptual. 1deu. I challenge you tA> cite me an instance in all the history' of the world wbe:re libert7 as banded clown from above JAberty aJ.wa.ys is attained b7 the .foNes nrldng below, ~rneath,, by the gNat IQa'f'.-n\ of the peopls. T~t., leavened by \he sense of wrong and oppnsn.cm and 1njustice, brings treed
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H:ts reform movements wre large~ actuated b;r bis b911et in hllll&D rights. "What I am interested in is having the gOYeranent of the tl11ted States more concerned about human rights than about property rights. "1 Franklin Delano Roosevelt was apparent:13 impressed with the reforming seal of both TbeodoJe Roosevelt and Wllson. As governo r of New York be viewed the possible all.1.ance of bi.g business and gowrment as detrimental to tbe liberty of the people. Fusfel4 quotes the Yom !P!9 coverag on this point. oovemor Roosevelt declared that the vast economic changes through which the oountr," was passing made it necessar.Y to reconsider mce more the whole problem 0 liberty. This problem he saida assumes nn aspects in the light of what has taken place 1n the eeonomic struetllft of the nation., aspects which compel the people to see to it that g overn. ment and business are lrspt separate" 1.t' the nat1cmts fl'eec:ICD is to preserved.2 99 Also of note was the wakening of eapi tal use of the labor injunction, which had ser1ous]3 hampered the efforts of labor to secure redress at grievances.3 Later, as President* Roosevelt's views with respect to the lf'are of the people as a whole were reflected in the increasing participation of the federal goverment in the national 8C<>nOIIJT ,' Religious Liberty The rapid growth of citi through the latter part. of the nineteenth cen1iuq1 and continued unabated to the present ttm, attended by ever increaSing economic difflculties of the urban worker, 1zh1d., P $0. 3 Ib1d., P 15S. -
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made for less clear-out lines in religious dootr.Lnal differences. The Iqnds stuq of lllddlet,own rev.,aled that "Mi.d.dletowneJ'S looked upon the church as a spir1 tual refuge rather than as a place where their economic sal'vation would be won. ttl Much the saraa ttd.nld.ng led to reorganization of the thodllt Church into single natimal church The more outward expressions of denominational ditterences wre largeq relegated to the sphere of lnful decree, a nd there the decisions 1l81"e asked for upon matters of outarard .form. There in matters having to do with outward tom, differences of opinion at the highest court lewl led to revened f1nd1.ngs. other than for sporadic., and isolated instances of 11.olenc the trend was towards a more tolerant viewpc,int regudirig balieJ:. With retel'enoe to the mctent o! religious libert.y Fraenkel states, "In general, the guarantee of religious f'reeclfa extends to belief and to expressions ot belief 2 As the decision with regard to the validity of acts rests upon both legislative action and judicial nview it is almo t a foregone conclusion that agreement in all ift&'taneea cannot be acbiem. Two deaisions of the Supreme Court, w1 thin a relative] short per.lod, are illustrative.. The legality of aq,ul.sion by school boards tor failure to salute the flag in a pibli.o school was upheld in 1940., onq to witinees the Court NVel"8ing itself three years later.3 At that ti.me even the contention that wartime affected the issue was Nled
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101 ~-~Llbtoz Jelmson lists tbne examples of the 11btl"\v of the people being subverted, not by th.Ole with a greed tor money or po1111r, but by those actuated b,-ld.gh menl pr1nc:1.p1ea. l l'n each 1nstanoa t.ll8 efteeta were carried out at t.he national le'fel. The attack upon obseem.t,-, u Affied on by Antbol'r.,' Comstock, a period or tbirt7 years ie almost unparalleled in Ameri.()Aft histor,-.. S1ia.rt.ing as an attaek upon vice in 1873, implemented tv law ot Oonpeas, and carried on by Comstock bi.mael.f in the role ot a speciel agent of the Poato.t1c Department, almost anytbi.ng oISidaNd b.J' him to be obscene upon postal inspection was prosecut,ed u.nd$r the vague provisions of the iaw. The second aampls s the achie"ftlllent of the Anti-Balooa League, under the direction and laadenhtp of Wayl'1e B1cinlJ. Wheeler. fhrough their ettorta the Eighteenth Amendmnt was added to the Coutitutdon 1n 1919, to there tor a period of .fourteen years In etttct it was a X'8'1.1val of s~ i.,,, long believed to haw been 1"llled out by the Declarat1e11. The t~ example 1s the Twaa~~ond AmeMlnent passed 1n 19Sl,. :restricting the mube of yea,11 1n the Presidenq. It 1B a tter_...o:t question whether that amen&aent ;paM~ by a minorJ. t.7-repreeentative vot4.ng by state legislatures-does n<>t aetual] tbwan the possible choice by a ~or! tq o the voters of ec:aeone .for a longer tem.
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War t\v&teria i'ollovdng P rl Barbor resulted in a large scale rescinding of the rights of a minor.I. v group. Japanes resi dents or the st Coast, including thos who nati ve-bom citil. h!lS I we.re f'oreib~ removed to assembly centers farther inland. This, violating aU American concepts was without preeedent in the history or the count17. Wish reports that 110.000 men, wanen, and cbildJien W8l"e thus tteaW.l Relocation measures later taken to disperse the Japanese...Americans added to their ment.al and J>b1&1cal autter.Lngs, deprived as they were o:t the liorating effects o form.er homogeneous grouping That it an action contrary to our American concepts few would deny. Bostow called attention later to the f'Undamental and basic 1asue wbicb bad been violated. The idea of punishment only' for i!l11vidual cr1m1nal behaVior is baSic to all systems ot civilized law. A great principle was never lost eo casua~. Mr. Justice Black's cemment was weak to the point of impotence t 11Hardsbipa are a part ot war, and war is an eggngation of hardships.' It w.as an answer in the spirit of cllchet "Don't you know then 1 s a war going en?" It ignores the rights of ci t:t.zensbip, and the sat guards of trial practice whieh have been the historical attributes of llber\y.2 An attack by Congress upon the rights of t he people occurred 1n 1943 when Congressman Dies named thirt7-ntne goverment employees as being "irresponsible unrepresentative, crackpot, radical bul""8aucrata," and urged CODpeS8 not to appropri ate mone:, tor their nlaries. 3 l Wish, P 511. 2oanraager1 14~ Xdeaa in America, quoting Eugene v. R ostow, "Ou.r worst WU Time 111,;J&i, a ig, P !li2 .3obarles P Curtist It. s Your law (Cambridget Harvard Univer ... Si ty Press, 1954), PP l42-h6. 0
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103 In the Appropriations CeJJmd. ttee aoUon was reoNssure upon the Senate and the President to acqu:lesce. The three govemment employees presented their case to the Court of Cla1ms, whence it went to the Supreme Court There the ceurt in a majority decision found for the plaintl.tts. The special legislative aot was in effect a bill of atta.inier., which punished individuals without due process of law, and was for that reason unccmst1 tutional. Curtis oalled attention to the taot ilhat "It is possible for Ccngress to tie the Supreme Court s hands as was done in 1868 with regard to the Reconstruction Acts 2 That was made possible by securing passage 0 amendments to the Consti tut.ion. The preceding instance s violating the concepts of liberty, equality, and justice_. represent selections involving both uncounted 1:xbid., p 144., quoting H R Io. 264, 78 Cong. lat Sess I (l943)11-2Ibid. -
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n\llbu8, as in the labor movement:. ad those affecting relatJ.ve]1" tn as in the Dies O.:cmm:Ltt.e casea. The application of the ccncepte to &JV' partieular instance does not, assme importance simp~ because o f the numben involved, for what 11a7 befall individual in the population could, under like ciro11DS
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of oorporaticms 1ncreased g ovel'!IIBnt intervention in the ar. fai:rs ot business Property rights Welle not relegated secondar)" to human rights, but the latter were acconted more consideration than h1 tberto. loS Religious tolerance improved both through the attitude or th! people and the favorable action of tbe courts. Changes attend ant upon the deftlopaent frcm an economy' largeq agrarian and rural to one largely industrial and urban acootmted partt.aUy or the change 1n attitude. Those actuated by greed for money or power re not always responsible for the subvend.ng of 11.bert.y. In a number ot cited instances it could be attributed to radical reforming zeal, tvsterJ.a, or lack of preoedent
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CHA.PrER V ANALYSXS OF PRESENT SIWATION Variances in Perceptiop of the Concepts In the previous two chapters significant events in American history were cited together with some analys1.s with respect to the American way of life. As philosophic concepts have understandable meaning on:cy in situations as they affect the lives of people, the attempt was made to apply the concepts as t hey were generally under stood at particular times,. Such application makes c learer the eon ... ceptual changes which have occurred in the extension or restriction of accepted va1ues. At times the concepts have taken on new meanings, as developing conditions called for entirely new thinking with respect to comparative values. The enhanced View with regard to human rights as arrayed against property rights, rapidly developed during the twe ntieth century, is an example of a change in value premise s The present chapter presents the carry-over by some people of the fears expre s sed more than a century ago in the application of full democr atic rights. A retrospective overview is given as see n by two twentieth century writers, and attention is sought by others to an evaluation of our present theory and practice. Present
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107 social justice indicate a oontinm.ng lack ot agreement To aid in evaluating the fol"Ces responsible tor the shift in emphasis in th protecting of liberties from the state to the federal level, a summary of them is pl'&sented It is hoped that the contemporary viewpoints will point up the need for a clar.lticat.Lon o r meam.nga. Whipple indioa tes such need in the .tollOWin g "M>rds. Civil llb81'ty rests at bottm. not U.JXZ paper guarantees but upon the spirit or a people T.4.berty must b interpreted in relation to the age.l Interpretation of arq term with coaceptual qualities I even when attempted by conteJDJ)ON.l"Y writers, is subject in ~1.s to variances due to inherent and acquired tre.its of each individual. When suob a term is subjected to the realistic eveit the applica tion is further c<.inpli.oated by wbat9'Wl' pbilosopbical p:emise bas been adopted for wherever a threat to a concept is discerned it 1 likely that two or more altematives are presented. Conflicting opinions have existed ~ughout the history of the United States as to what conatituteci liberty, equal.tty and justic applied to lives in a constant state of f lux and change Durin g most of the nineteenth century there ftft long periods of relative'.Q" slow change in the manners, customs, and habits ot each auceeeding generation Cnly in the latter part of the centu.17 did the tempo o change quicken large:q because of changes brought on by the Industrial Rew lutd.e:n., With the obang came an increa ed questioning as to 1:teon Whipple Our An~ent Liberties (New Yorks H. w Wilson Oo., 1927), P S3.
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l.08 the validity of formerl.7 accepted authoritarian dogma. Students or history formed judgments as to previous]1' held conceptions of American life and judgments as to eonterapol'IU7 meanings. ad.vel"Sal suttr-age. without property qualitieations s for many generations to promote a cle nge in the minds of men as to 11'hat constituted equality in the application of it. Despite the fact that it had been adopted in the COnstitution, relative to national affairs, it was not so adopted by man)" of the states. The failure, durl.ng much of the first half or the nineteenth century, to ext6nd uni Yer&al sufh"age leads to tJ1e ccmclus1on that there were 11181V' who agreed at that time with t.he plQllouncement o James lent eonceming the dangers inherent in it. The apprehended danger f'rcm the experiment of universal euttrage applied to the whole legislative department is no dream of the imag1nation. It is too lld.ghty an -.Ci tement for the moral constitution of men to endure. The tendenq of uni venal sutfrage is to Jewal'diae the rights or property and the principles of Uberty.l A 1"9surgenoe of this opiJdon waa reflected as late as the l930's when, during the long depression, voices were heard which weuld again have restricted the suffrage to those who held property. During the tllentd.etb aentU17 the dem.oont.to experiment of more than a c ntury g w opportuni tq or a longer period o.r :,etro,.. speoti ,e ~a, combined with judgment and projection, according to. the various viewpoints of the writers. These, aa mq be expectecl1
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:J'8l\ the g ut frcm. extremes of pessimism to those of optimism, .trom ear of a stronger central. g overnment to aceeptance or an extension of .tederal powers where seem5ngl,y warranted, and from avereion to any socialistic type of State to that of acceptance of a modified version or it. Crol;r in the earlY part of this century, vi8119d the past with pride, but also with recognition that the ~t.ure could not be shadtl.ed to the paet. The American futun which Americans propose to build 1s nothing if not an idea which must in certain essential respects emancipate them tran their past On the whole, 1 t is a past of which the loya l American bas no reason to feel ashamed, cbie.t'q it bas throughout been made better than 1 t was by the Vision of a better future J and the American of today and tomorrow m.st remain true to that traditional viston.l Individual liberty and equali t7 were treated b7 him not whol.11' w1 th respect to the individual as such but with reg rd to the application of the concepts to the democratic process .. The really formative purpose of democracy is not exclnsivel.1' a matter of individual liberty, althoug h it must give indi:vidual. liberty abundant scope. Neither is it a matter of equal rights alone The salutary and fol'mative democratic purpose consists in using the democratic organization for the joint benefit of individual distinction and social improvement .. 2 Also wrl ting 1n the ear~ par\ of this centu?)" Hadley pointed to the lack of una:n1mi in vi respecting liberty and justice. \erbert Orol.f' The Praaise ot .Americ n Lite (New York 1 Macmillan Co., 1909) P 2 Ibid., P 207. -
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Different parts 0 our population have d1f.ferent ideas of what constitutes just.ice and what is metn t "'{ libert7. Each side is s uxe of its fundamental rightness. uo To combat eommuntst.ic or sociallst.1.c inroads Hadley called or a reappraiaal of eonoept meanings as a pplied to modem conditions To be able to ccnbat the positive theories of either Marx or of Mac Donald with arry degree o f permanent success, we must have positive theories of our own reg arding the: relations between tne hberty o f the individual and the interests o f the cOllllJi.n1ty as a whole which shall have facts enough behind them to enable u s to make our appeal to the people with more definiteness and 2more con:f'idence than M arx or M acDonald haw made theirs. Comparable to the views of Croq, both with refeNnce to the past and a prognostic view o f democraq were those expressed by Ephraim Adams, piblished just a few years later America had,1 indeed, a very confused notion of what it meant i.n acclaiming democraq. Rationality, special destiny, religious and political liberty, equality of opportunity, industrial prosperity, were all jumbled in the idealization o f that democracy w hich .America alcne was held to po ,sess. To most foreign visitors about 18.)01 America seemed to have gone mad in a erase tor democrav, as necessaril;r the wisest and best type of goverment.:, Reminiscent o f Crol1''s "formative purpose o f democracy" is Adams division 0 t hat which might be achieved on the one band through g overnment, and on the other through "the org anic sense of the nation lArtbu.r Tw:trdng Hadl.ey1 The Conflict Between 14.bert,y and !J.ue.lity (Boston Houghton IU.ftmi co. D2S), P 2 1. 2Ib1d ~ PP 2223. l Epbraim Douglass Adams, The Power of Ideals in Amerioan Histoq (New Havens Yale tnive:rslti Press, 190), p 1)4
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1U Today we see aore cleQ'q both the mel"its and the Um1ta'tJ.ona of dan.ocraq. Pol1U.cal 111*-ty, equali tr be ore the law, b'atend. ty 1n human 8JIIP&tlV, we ltA1' hope to sec\ll"e through goverment. liberty, equallt,-of opportunity, must yield in pan, at least, to the organic, ense ot the nation-to trat.el'llit7 Political parties in America, ue today div.l.ded, 1n t.he017, by the differing 11m:l. ts they would place on 1ndu.stl"ia1 liberty and equali t7 of oppertuni ty, but. they -are in ap!t11Jl8nt that seme l1m1 t is necessary, and the cause of this agreement is a higher appreciation of the ideal of fratemit,. This is our Amer.lea n eonoepti.on ot social democney., but we no longer bold it perect 1n itself-it 1s but progress toward some unseen g<>al. Fr
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112 Whether this bas occU1T8d through disuse and/or de.fault b:, the states or by abrogation by the fedeRl gowrment, is not Vii th1.n tbe purview o f this study. Here i-ecognitton is given only to the :tact that it has existed, and continues to exist, apparently unabated, when. ever novel situations imposing netr conditions are encountered. Innumerable instances of atiW&ck upon, and de.f'ense or, the opposing viewpoints are available. For the purpose ot example two opposing viewpoints, published within a period of a t 78&1"8 of each other are pzesented. Each emphasizes the centn.l theme ot liberties and rights. Brant sutmitted the following in defense ot federal consolidation, particular~ evident during the depression years of the l9.30s -Today an attack upon wv abenshed insti tution1 through the federal government, means consolidat.ion., mmarc~, des potism, loss of liberty, the passing of individual rights, pervemon of the Constitut-ion The worse the inStitution, the more de'Voutl.v it is defended in the name of liberty-and hoq tradi tion.1 An analogy is also drawn by B:rant between con.di ti.ans in the firet bal.t" of the nineteenth centu;ey and the state of affairs in the ear~ tfflmtieth centu17 The :p"esent,..day' state Righter who cries out against the impending consolidation of gowrnment and the destruc tion ot the rights and liberties of the citizens, when be means that his own priv1lege tD employ child labor or to underJ>&r.Y and overwork a&ilts 1s being imper.I.led, is mere~ enlarging and m.odem1zing the argument or those mo, a century a go, tried to build a state bul.rk around slave1"1'
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U3 by waning that o f state control meant mcmarcl\, and despot1-. l Opposing Brant' viewpoint a that ot M o:S.,, writ.ten during a l1lOJ'8 favorable economi.c period following World War Il. A dim:Jnisbing of state sovereignty is tied-in 1d. th the 1mpl.1oatd.aa that eooialta will thnu.gh that loss be enabled to flourish. the American Cons\1. tuttcm s designed to presern personal liberty by aeve51 ans. Very tmpci>r'lallt among these wae the a,aurano e ot state aovnei.pty and, with 1 t, 1ooal government. Tbe as0Ell'ldaac7 or the Federal gove1'1118nt is the detd~ not only' o f the states l:ut of the citi zens 0 the states. For ocial1.S11111st seek its tinal ob3ttctive on a national 1e..i. i In the selection .tram Jloley that f'oUon the govenment refer.red to is tbe tedual gowJ."l'IIUit8t The intenention ot g overment 1n our econm1c md social life p~ 1n what we may rougb;l;r call geflD.etric propenit'lft. W1 th ea.eh new en~t upon the area of libanJ'1 gont'lllent P"OMJ more potent and liberty weaker. tJltimatel;v',-an unsen line is OJ'O&s-., am resiStance becanes 1mposs1ble. The ind:l vidnal cann.ot :regain his l1bert7, because bis capacity for selt~tion 18 caustecl. As a nat4.on; w reach s poin~ of no retum. l A recent publioatioa throws light on DIBJV' of b tones reeponsi ble for the protect.ion ot liberties shifting from the local w state lnel to that of the national govermeat. It endoi"Sea there having been a need,. though not tiscount.ing that suoh power must al.ways be under o:onstant aUl'V9lllanoe no matter when it resides. 1:t.w.ct,, P 190 .. a~ Moley1 How \o Keep OUr Ube~Y (Hn Yo:flra Alfred A Knopf,, 1952), P 109. )Il:d.d., P u. -
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A brief &IJl'1IDllrY' of those forces has been prepared from Jobnsons '.l'b1s American People, l l. Questionable loyalty of sane people 2. Ccmf'liot between conscience and increasing need of social discipline ) Appearance o f monopo~, and the disappearance of business opportunity 4. Extension of eduoation1 and the new meaning of ac.ademic fi"eedm S. Developllent of political parties and pressure groups 6 Increase ot federal powers and the decl'ease of state powers 7. Increase of world importance as a major p~!' The industl'ializati.on and urbanization ot tbe American people have brcr>ught about, or ugmen:ted, the above conditions., making it imperative that the answers to the problems involved be arrived at on a high enough level to reduce inequalities throughout the cowat.ry As the communities and stat.a became less and less self-contained, through the mobiliv of the people, the need for an overview embracing entire regions became more apparent .. At the same time the individual problems of the states in continuing to suppl;v services already established. as well as providing new ones to~ changing conditions, overtaxed their ability to arrive at both eanmon agreement and ctXDmon action in cues where the conceptual ideal of a way of lite was at stake In the contentions wbich arose 1 t would appear tba t the Supreme Court has becane a more aealous protector of liberty than either Ocmg!'eSs or the state legl.slatures as witnessed by their Ji10re recent decision regarding e~ls01'7 salute of the flag in public schools.
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The Jeed FQl'. OikE!4 .. tlffl The need .for a c17 of the count17. '1be difficulties involved haft been the result ot condi t1ons cbang1ng ao as to 1.nject new fact.ors into an7 problAlla pre'V'ious~ a~ed tor a soluttan. O17. Ptesident Wils, 1n an add,teas at Pldlad.elph'l.a1 showed that he was ful:cy' cognizant of tb1s p1"0ble. Ltberty cioaa not consist, my .teUGW-oitizena, 1n men geneMJ. declarations o the rights ot man. It consists 1n the t:,anslaU.on ot those decluatiOns into d.etinite act.i,011-"We must reduce 1 t to 'ltbat the lawyers call a blll of parttculaZ"s. It ecnt.ains a bill of parti.culan, but 'the bill o partdculars of 1716. If we would keep 1t alive, we lllUt till 1 t w1 th a bill Of pariicul.an or the year or 'INl1, l ""7..14 More recent1-'Y the necessity tar a more specUic application ot American concepts to a ""1' of Ute NSulted. 11'1 a compiehemd.w atud3' at the national leftl as to the responsibility-for, and the defi.ning or, eivil rights+ The Conati tution, .as 1 t came tram the Fhiladelpbia Coavention ill 17671 panted to Congress no express to en&Gt oi.Vil. rights leg:tslat.ton ot an;, kind.. Morecwe..-,
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the first ten amendments, wbiob make up our Bill of Rights far from granting. 81\V posi t.ive powers to the federal government, serve as express limitations upon it. The Thirteenth., Fourteenth, and Fifteenth Amendments added to the Constitu-. tion immediate~ .to1.lowing. the close o f the Civil r do EECpressly authoriee Conpess to pass laws in certain civil rights areas. But the areas are at' limited SJCtent and are not clearly defined. 'l'bus1 there is not.bing in the Cmsti tution which 1n so~ words authorizes the national govemment to protect the civil rights of the people on a compre hensive basis, S'!!'!Et The reluctance or men, imbued with traditional ideas, to 116 attribute to others the nece sary qualifications tor elf-gcwemment was not confined to the rly' bis tor)" ot the United States, \lien ever property and human rights haw clashed there have always been those who seemingly placed property rights t.lrst. e-ven to the ex;. tent of advoeaUng during troublesaDe times a cane llation or restrietd.on of previ.ously won rights. 11.anJ" have recognized the changlng nature 0 our soo1ev. the reasons for having pri.de in our past, the need tor appl;ving thought to our ant..i.ci.pated fu-t.ure and recognition of conflicting philosophies of government thrGatenl.ng the American way of life. Differences of opinion as t.o the definitive applieation o:t the concepts continue to exist. Because of the failure of the states to arrive at cOJJimOnalty in the perception and application of them, protection has beeGne more and more a function of the l.rhe Report of the Presidents Cormnittee on Civil Rights, To Secure These Rights (wasb1ngtcn1 u. s Government Printing Ottice;1), P mJi.
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nati.
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. CHAPTER VI FDJDINGS1 WITH IMPLICATIONS FOR EDUCATION Finf!ipg The research presented in the f ore g o ing chapters supports the conclusion tbat the major concepts have a d;ynamic content The ten.al po~s a vast change in the cc>nditions of ill over a period of near~ two bundl"ed years, with a corresponding effort to apply the symbolic meanings of the concepts to the changing conditions. Given little more than the symbolic ~anings at t.he beginning it is apparent that ithat operated in the past, and 'What operates now are the results of various interpretations as to the intent and meaning of th concept, l The concepts as held by the Fou.nding Fathers were definitive only in the area o political independence from England. The liberty which they sought to attain was that of a 0011plete separation from control by Parliament and the King. In the drawing up of the Constitution the terms liberty, eq uality, and justie were treated as scnething al.reaq secured by their political be.,. dom, and the application ot them well-secured in the states,. That a great deal or symbollat was attached to the is borne out by the divergences in the states with respect to speci.f':tc areas such as Sllffrage, religion,. and penal laws. At the national level legislation 118
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U9 to clar.ify the ap plication o f the concepts to the lives 0 the mass ot people came on13 with an awakened moral and social consciousness, and even then sometimes JJ18l'G' inequalities continued The struggle for political power, the changing economic conditions attending industrial and technological growth, and the lack of precedent in instances all contributed to both neglect and lag. 2. The philosopqy of the Founding Fathers indicates a primax,-recognition of the need or a aore stable govennent to protect the politi.oal independence secured., and oaq a seconda17 reeognit.ion of the conoepts embodied in the Gonst.1.tution and the Blll or Rights. W/ri.t.i.ngs ef IIUwn, 1Alcke1 and Blackstone which stressed the natunl rights 0 man are large~ symbolic; and being use.ful. as such to support a g iven pcl)l'i ti.on, the rebellion, were not reduced to sped.tics appq:l.ng to all individuals alike. Leaders in the Revolutionary movement could logi~ support revolut.d.on through the philosophy' that all rights or1g1nate with the people, for to allow that there were arvaxeep.tions would hav defeated their attempts to secare support of their pl'emise 'fhat cei-tain rights and guamntees did not convey tm same meanings to all men 1s support.ed by the content.tons wbieh arose dur.lntb and shon~ atter, tbe7 were 1fl"itten into the Documents. In the Decla ration, equall ty ot stat.ion and liberty are premised upon taws of Nawze and the "Creator." Just:1.ce, in the ame document. res upon both the real and fancied grievanees llsg~ ignored by the
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Croan. Taken together the y form an imposing indiciment agalnat. a claimed~' but are ne b ulous if used t o support a specif1c bill of parttculal'11 1'h1ch would apply equ.al:b" to all. In the Oeaat.1 tut1on, as ratified 1n l769t liberty is treated onq in tbe sense of bein g protected b.Y "du process of l.aw" as relating to lite and property. This actual.la all.owecl a td.de latitude -.men one considus the almost im\Ull&ttable dittennoes in loeal. and state oonceptions as to what oGnStituW d u e procaes. 3, 1a the wtt:Ltings ot the Makers or the DocUllelits vari.ous references are .tound W'lth respect to the tel'IDS liberty1 equalJ;tq and jut.ice. For the most part the ~sions deal With geaenli .ties I and one tAan uslllle that the import was undemtood accord ing tot.he eondit4.cos of the times in which the people liwci. Concern was firet evidenced in appl1ing the concep to a securing of pol.1 t1cal aid econflllie independence fraa &,gland. The rtext concern was to protecrt the resulta of that independence re the iutabUi ty ot goverrunent under the ArticllfJJ. Those thoughte show Gell$ ceuistenq,. but the leaara o f those times nra not in agreement as to bow tbe oOIIOepts applied to indi:vtduals. Although al-. lagiance to the 01an ot natua" 4eotri.ne gaw recogniticm to the powen or g ovamaent ree1d1ng 1n the people it did n.ot neoeaaaril follow that tbe people .... capablA or seU'-gOV81"111lent-,-am thl:as not also the fount 1D deternd.nlng the proper allocation ot indi .. vi.dual rights under the concepts At the time or the Daclarti.on John Banoocks m.tings indica'la a stTong possibil1tq that the
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libert)" to be fought for would not devolve eq\Jal.q upon all the people, in keeping with the accepted procedure that laws woold be oontrollsd b)r men of property who held the voting franchise. Roger Sherman conceived 1:1.barty as bei.ng secUN in the bands of rulers when choeen by the people, apparen~ discotmting the history of experience, in that any govwmnent g1 ven power will in the normal course ot events attempt to increase that power. Jefferson believed in the ultimate improvement or manJdnd in the regulation of their affairs, and the preservation of liberv, rut such preserYation was to be against ovugnsping legislative or executive branches of goVen1Dent, not against an individua1'e actions d1reoted against individuals. Wilson$ with a lawyers appreciation of legal procedure, characterized liberty as being civil liberty modi.fied by consent. These and other leaders, were in full agteement that r.1.gbw originated from the .,a.ple1 but in a definitive sens no bill of partioulars was ever drawn up, or insofar as is knme ever discussed to give substance to the various forms of l1bert7 euppos~ possessed by each. 4. Rutlands etuc\v would support the "dewpoint that during the period under the A:rttcles criticism was dintcted almost molly towaJ'da various weaknesses of the centtal. government Research bas shown that neitiler at that time, nor when the Constitution later went into effect, was cri tioism in newspaper articles or private correspondence diJ'eoted towards the infringement of individual rights, which f'act coJ"l"Oborates certain aasumptions made at the
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out.set Both domestic and foreign eocmanic affairs superseded in their pressing importance consideration o f possible indl vidual or minority group dissatis.tactions. Uoreo'vv1 existing inequalities ot lite were not considered to be contrary to any establisbecj political rights in that period of histol'7. The pr.1.mary concem seems to have been the corl'9ot:l.on of econeic ills, as they applied to heme and abroad. 122 $. Concem owr a Bill of Rights in the Constitution 1llllB not lacking, but from the mdenoe g athered it would appear that those who were th concerned constituted a ve17 small nd.norl.tq~ Various ear.pressicms of that concern 1IUe voiced by James Wilson, Elbridge Gerr.Y', Luther Martu; Charles PJ.nckney, and Robert Yates, either during the Convention or thereafter,. others who had a J"eOOrd ot championing personal liberties wen preeumab~ too immereed in what seemed t o be the more pressing task at hand, \bat o setting up the working draft ot a ore stable g overmnent. Mason pinned his hopes upon the possibility of second con'Ventiont which was defeated. 0eITY' voiced other objections to the Constitution, but placed the lack ot a Billot RI.gilts as ot major importance in bis refusal to sign. Martin feared the encroachment of the tedel'Bl gow,mment, w.1 tbout an ad.equate guarantee that states bills of rights would be efteetive. Yates, though not empowered by his state to do more than revise tile Artielee, thought the
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123 Alexander Halld.lton., and o'bhen apparent:b' either thoughi, the liberties were dequateq sateguarded either by the Constitution itself or by the stats oon&titutions, or ,rm,e not concerned enough to express a v.1.ewpo1nt. 6. That the meaning of equali t7 at t.be time 0 tbe adoption of the Coostitution was as nebulous as the meaning of the other concepts is exeapli.fied by the n, tz,i.ctive suffrage in ID8IV' states. F:nakJ:lns change, traa fa-vorin g a Umited suffrage to aa extension of it consistent with the protection ot illdiv:Ldual rights is an eumple Livingston evident~ had no such change 1n b1s th:lrdd.n for even as a known refvmer be did not enter into t.he subject. That a allf'trage limlted to treeholden was propoa 1n the OmtftDtion ai p porba an ase1111pt.i.on that in being o proposed 1 t would noeive f vorable reception 'lihel"e. It ma,-well be that the caiblnat.t.on of l!itgland's pJ"aotice of reet.riction, plns v.1gorotJ$ oppo-si t1on to it by Fre.nkl11i. was eng h to cendi tlon the DIUlben :lntG mo:re tolerant. thinldog in eollfonnity with the new spid.t of fl'8&* dam .from J>NV1ous reatninte. However, the conoept1on of auf:t'rage as being a caneomitant of property' was to continue to have adhel"ents througtmut history,. as ev.t.clenced by' the resU1'gellM during the depression of the 19'0', when the "have-nets" were in mnbers 1n tbe ascendency. Jamee. rent s foreboding against uni venal suttrage uttered in the 1820s came to lite again more than one-hl.JndNd and ten later, when propei"ty owners fe&Nd tm vot.1.ng potential of the and the aeedi'
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124 7. The esttension ot danooraey through the increased. nmbel' of land owners was not a gain in conceptual equality, fOJ' along with their improvement in econcmlc positicn 8CID8 0 the new property holders 1n the East. developed ta-vored-elass consciousness. It would appear that in the older settled areas a social pri.ori v continued to be accorded to hered1 ty am wealth mi1ch was large) suppressed or ignored in the advancing fl'ontie.r areas. The ttainment o r social equ.alit7 acco.l'ded to new wealth s not ac~ therefore, a gain or the principle o f the concept of equali:tq1 for JDalV' of those to wbcm it was accol'ded were not interested in its downward extension. 8. Whatever may have been the acc~ted frontier viewpoint upon libe~ as being absence o f NStl'ld.nt" as rude3-?' shattered by the govwmnents firm stand in the collection ot the whs.skEf' excise in 179h. Basioal.11' the tax represented a difference of optnion that bad to be resolved by force, for the farmen involved bad at first no intention of subn1tt1n g peac b~ to that which was to them a denial o f rights. As an example or a ma,jor change in meanin g applied to tbe ooneept of liberty, it retlected a re-. striotion llpon a previousq taken-,for-granted right.. 9. The peacetime sedition acts ot 1798 and 1917 did then and still do, raise the important question as to vhat set of circwnstances could possi. bJyr jutify a curtailment in treedca ot speech kq curtailment o tbis right, affecting every med:1.\111 ot comm.um.cation or ideas, impinges upon concepts o f liberty. equali~1 and
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12!> justice. .To those in authority, poasessed 0 the legislative pener to invoke such curtailment the consideration or the threatened danger must, in the nature of things, p1/9Sent a more terdtying aspect than to those without such authority and responsib:i.litq. As cireumstances always differ in each cue, es.eh threat to authority canst.it.utes a eondit4.on \Ii thout preeedent, and in the eyes of authori ty a justifiable reason c.-curtailment of a psrevious] bald liberty. Stated 1n another wa..v, it, in ettect, becomes in the eyes of authority an emergency measure of selt-detense, re~ upon the ga'ri.ty of the situation and its impact upon the aaticn to support it. Opposition to these peacetime measures rested upon the 1ndef1n:1.te character and extent of anticipated dangers, which because they wre iresumably prevented frcrn fl'ui ti.on can sel.dan be adequate~ or conclusively' defended as bav:tng been 1nm. table. Conoem felt by those fearfUl. of the consequences of abridgement of rights found expression in the pn;,nounoanents of Just.i.ces Holmes and Brandeis. The "clear and pmsent danger" clause has made it quite evident that executive fiat, to prevent cries of subjugation of rights, must be exercised, i &ver, only when the danger is clear:cy-at hand and allows 0 contl'Ol o~ b;y immediate action without exercise ot uecut:tve and legislative deliberation. 10 In Hctw Fag3.andt \t1 ere shipping formed a substant1al part of the econOIJl1', the Embargo and Non-Intercourse Acts wen viewed as restrictions interfering with the libert,y to trade as and with 'Wh
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126 the Olfflel'S pmrogati w I in keeping w1 th the .tact that any, loss was to be borne by them Therefore, nat1onal acts which clear~ undennined the eccmaq wen eonsi~ an injustice of major mag-nl. tude. To shipowners and others invol'fed, the1'9 no question in their m1Dds that personal rights -.ewe la a state of suspens1cm. The prineip~ 1'bich actuated the gove1DBent was clear) undentood, b u t the impact upon a way of l.U' e cleudad tbe issue and nlsed ques tions conceming conceptual treedam8 ll, The economic bisto17 or the country, particular~ as it applied to the relat1onsh1.p be--n the employer and the employed, :reflects, pei"baps better than any other type o t relat1.onsh1p1 a dnelopaent o f the Sfllbolic or ecmoeptual qualiti.es o the coneepta FrOlii ear'.q begimd.ngs, in the growth of the impersonalized arrange.. ment1 the organisation ol existing institutions as u1"8)'9d against collective attempts to 1mprow the liws of the women. The conspiracy Uf)eeta of English cammon law accepted vien an propert,y rights, the churches respect for law and order, local eons\llel' antagonism to oonmuni t,' upheavals continued av.bsem.enee of m&I\T to privileges of wealth and the involdng o f the injunction, all contributed to inveigh against colleotive action by the workers The liberty or the woncer was often <'*11 the 11 berty to starve it the emplo,er a hours, wagee, and working conditions nn unaweptable. The measure ot equalitq was conditioned by the property rights aeoo:nied the aployer. The meuun of justiaa was oirounaeri bed
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127 by imported laws which ill-fitted the conditions or eonspirac,-1 and b,y the courts sanction o f the use of the injunction. The lawless phases of labo. r organization carril:'ld to the extremes set by the 1.ollle Maguires a11enated public opinion and delayed the securing of reforms. In another major industry the ccmbined use o state militia and the labor injunction ettectiveq throttled the demands o f the steel workers Despite legal and extralegal barriers the continued difficulties or the worken and their families were more and more to focus attentd.on upon the human rights which were being claimed in opposition to long established property rights. Contention for such rights during the twentieth centul7 found expression and support in the highest executive position in the ettorte of W1lsm and both of the Roosewlta. 12. F4ualit)"1 in the area ot opportunity, was ear] conditioned by child labor and lack of educational facilities. To the taotory owner a restriction upon child labor and an extension of education to the masses represented a twoedgecl sword dil'ected against the established order,. On the other hand.t to llltmT parents, the contemplated changes represented the possibility of a way of lite for their children which surpassed anything previously' possible. Refoi,ns were accomplished largeq through the interest of both the national and state gavel'!lillents in edueatt.cn, and the ef.tortle or the less militant and enlightened. in securing labor and edueational improvement&.-
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128 1.3. The hi.story 0 religi(IN8 liberty 111 the earl;r nineteenth centur;y is not unlike the later wax1ng am -.n1ng or the spirit of isolationtsa. Both were producte of a s t of conditions fostering emotional loyalty to the status qt.10. thprecedented immigration, bringing sizeable numbers 0 foreigners of :religions wmich differed frail that or the existing majority and speaking languages other than &lglish, paved the way tor emot1on-eba:rged non-toleranee of wap which wre dissim1lar.., The exclusion of Ca.tholios by the Know Nothing party indicated the religious animosi t7. Feelings and actions were directed at that time ton.MB the foreign bom, dis counting what they were even then ocntribut.1.ng to the de'V8lopnent of the country. Timeq recognition of the anti-Amrican biases of the H'now Nothing s plat.tom led to 1 ts being renounced gener by the c ountry at large. The slogan "America fer .Americans" was. in ttl8 face ot the growth of the country, an emotionalized type of think-ing which attempted to prevent changes which were dGmoeratio 1n s u bstance Later; in much tbe same manner, am with much the same mistrust of that which s foreign, those disregarding mrld changes in time and distance were to cling to 1ihe concept of' isolationism, long after the conditions which once had fostered it bad undergone changes which made it umn,rkable The twentieth oentUZ7 baa 'Iii tnessed a far more tolerant atM.tude toward religious belief with the highest court o f the land favoring an expression of belief contrar,y to previous legislation adverse to it.
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129 14. The Bill of Rights as it did not convey positive rights unitorml.1' tbnughout the states, was in effect then a set of restric tiv measures upon the powers of the national g overnment to prevent interference or curtailment of rights at that level. Securing or conceptual liberty,-equality, and justice in the states was to follow a very irregular pattern as evidenced in poll tical, religious and juridical instances. Not until the enactment of the Fourteenth Amendment with its "due process" clause did it become possible to prevent impairment of the provisions of the First Amendment by the states. Despite that possibility or preventing such impairment certain claimed infringements were to require maey years before definite limitations were announced to appJ. to the powers of the states. Freedom of speech and of the press had to await the Supreme Court decision of 1925 to prevent limiting of it .. 15. Various emergency acts as represented by the Allen and Sedition Acts of 1798, Lincoln's suspension o f habeas corpus, Espionage Acts of World War I, and the Alien Registration Act o 1940, contirme in their fundamental isS11e to plague chaq:>ions of libm.-ty For the sake of eliminating argument as to their necessity, suppose it were to be conceded that their provisions were unquestionabq designed to prevent the acccq>lishment of a real threat, and those responsible for the enactments carried them out as distasteful emergency measures The precedent having been set and accepted 't:tV' enough to make it a wcrkabl.e situation, the question remains as to 'What assurances, if any, do the people have that future impairment
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1.30 of rights will not be subjugated to the whimS of an arbitrary execu tive or legislative boct.?1 16. ~les of the subverting of liberty, the denial of equality, and the withholding of' justice, are to be .found in times or peaceful activities as well as in times of war stress and strain. Mttcb has been the result of circumventing stablished due process of law procedure and substituting for it emergeneymeasures which ail to protect individual and minority group rights. Recognition o the dangers inherent in S11ch denial or rights has enlisted the support or in inf'luential positions in the denunciation or such acts, to the end that perhaps a more general. intelligent appraisal and condeulation mq prevent recurrences in the future. It is a mistake to refer to our "ancient libertiesn as a particularized list., with changes attendant upon ftfr:t.se and fall of institutions as being either in con.formit~th, or directed I '-1 ) against, such a 11st. F ortunatel.3', symbolic vaiues attached them.. 1 selves to the concepts so that they could be applied as conteoporar,y adjustments to the conceptual ideas. E:dUcation should recognize this as being an on oing quality, dependent upon each succeeding generation for advancement in the interests of humanity, and ever mindful that invasion or the rights or individuals or minority groups have the potential. power to destroy such rights for all. It woald appear that the use of the terms bas in tact had more different meanings as applied to specific situations in the past
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than ecmtenpora1'Y emotionalized th1.nld.ng might suspect. The terms having alwqs contd.ned an indefinite amount of S)'Jllboliam., to at tribute the de.tinit1ve ccmtemporary meanings to diNct heritage 1s ,' to discount, and tht1s tail to ctedit1 tho who through the years lJl have added to the conceptual dimensions the fruits of~ a;ppli cation to changing eondit:t.ona. In the Dl8l\1 major avemies through llhieh man baa atteq,ted to raise himself above the level of mere existence, namee and events which improved ime political, econOJllie and social lffel of the Jllajorit:,, are deserving of more credit than has hitherto been giV8lh ¬ionaliaed appeals can, for good or en.1, secure responses :ln degrees substant14nY greater than ordinary cool and logieal approaches. Howeftr, the lasting relNl.ts are more 11.keq to be those o f the rational. approach If the low morale of our armed troops dnr.i.Dg certain phases of the Korean Wart and defection to the enemv at the close of it, are not to be repeated it would appear that a pride of heritage JIIWJt be ballt upon the conceptual. advances of each generation, unto the last, rather than aocording to a remote past the entire credit for a g:Ltt not with11'1 the power oft.hose then llVing to pant. The cost. of our present rr.,ec1oms have been borne by each succeeding gen-.1on, and to eacm coming generation the cost shoUld be known as the price paj,d for that which it is the re,. spoMibili:cy or each ; not onl;v' to protect, but also to advance It is tar more pertinent to those who live t~ to know that con temporary adjustments have been made throughou.t the years 1n a
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l..32 never ending striving for conceptual adjustments, rather than errcmebelieving them gift.wrapped in remote years o r all posterity. To subscribe to the latter is to emulate the misconception which has attributed to the English Magna Charta most of the individual rights secured by other subsequent acts for the English people Both a more analytical and tolerant vimJpoint should be developed if the people o.f this cowitry are expected to cont1l'lue to reach new heights in conefjptual freedoms The people mu.st subscribe 1n actions as well as in words to the generally accepted articles of the democratic faith. Civil liberties denied any part or the population., without having been forfeited by actions inimical to society, constitute a threat to the entire structure of democracy as present3 conceived. J.mpediments t.o concerted action in the attaining of full rights tor all seElllingly rest large~ upon two factors, namely, apat}V on the part of those to whom such r1ght.s have accr11ed, and1 opposition by those to whom it~ prove trouble some or costly to extend like rights to others. Although antiquity have fascinating facets, it does not follow that the American people oft~ should dwell nostalgically upon the liberties and freedoms of a by one period, without taking into accollllt the shortcomings which acCOJJpanied them. A comparison of our present political, economic, reJ.igious1 and social liberties compared to the past reveals a. gain :in ea.ch. ~ponents of changes to meet developing condi.t1ons JDa dwell with rancor upon restrictions unlmown in past years as curta:ilmenta of the concepts, overlooking
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that the restrictions placed upon the tew were necessary for the weltare of the many, that the democl'at1c ideal might be more neax-q e.chieVed. 133 The broad meani.ng of liberty ha.a changed fl"oa one of "absence ot restratnt,u to that ot a regulated i"estl'aint. A necessar., corol. lary to the gtowtb or pc,pulation and t.he increase in the size of ciUes has been an increase in the number of attendant gOV8l"Ullen t regulations. Granted, that an inCNaBe in regulatory power can tams the potential for the uns~ to use such pe11er for un desirable ends, it does not follow that it will occur,. provided adequate safeguards are established th'Nnlgh the watchfulness or the people. What remains ~o the American ot todq ot that lUe which vu .American in the past is largely the &:.am of a s till better future. De$J>ite the admi tted mistakes which have penalized indi viduals or minority groups, and in man, instances these Jlli\Y' be attribllted to laok of precedent o r failure to assess adequateq a particular situation, iaequalities ruwe been reduced. The basie coneepts, inadequate as former ideas concerning them would now be were capable of being tiransmitted without loss of fi.delity to a more ~c society. Democracy in not being dogmatic in its prrmwncellleDts has show.n, the value ot tolerance and hu.mili"t;y in the a.tteq,ts to adjal s t the manifold dit~ces C"is:lng among the people so governed. Bad it been dogma'-1e it 1s dol1bt.t\4 if the concepts eOdld have been endowed with new meanings to fit an ent~ di.tterent society. Ideas, ha.Vi.ng a lU'e or their O\tll
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are capable or ailttpl.e adjustaents, and it is to sue adjustments that we owe reeogm.t1.on of the worth or the :1ndividua1, and the value of the concepts in the bldl.ding of an improved soc:lal order. Concern with probl.eu at tbe national and :1ntemat1onal. levels should not be allowed to deter to an indetinite future tiae the amelioration or corNCtion of existing condi:t.i.ons contrary to the articles of the dell1ocrat1c faith. Lip service to democratic ideals with benefits 1n tu11 ma!nly for the majority ignoring or suppressing the rights of miner1tiee, can lead only to a weakening Gf the demoot"atic st..rQcture. Failure to tul:till 1n action the full of the. artiel..es places the United States in a vul.nerable positum in the seauingly nner..,.dtbg involvement. with contesting ideologies. &au.cation should acknotAedge its et.hi.cal responsibility tor inpl.ementation of accepted democratic goals, to the end that a proclaimed way of lite be nK>re nearq achieved in realit7. Such I acceptance would indicat.e need for a stu.df ot curriculum t.o the end that specific mate1~i:u s on the historic Nl.at1v1tq of our concepts be included with the symbolic geneltel1za'1ons ygeat1ons t~r !l!f:'b.!1" stv The inability ot 11m7 to correlate the democratic practices vi.th m Ulltiwstanding of a responsibility for continuous illlprovenumt indicate$ a probable lack of knowledge conoendng the historic development of the attainmmt of a~ of lite. Advances in conceptual freedoms have been made onl3r through the efforts and sacrifices of
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13.S each generation. Results of this study~ well f'onn the basis for curriculum iJll>lementation. The scope o f the subject is such that studies should be f:ruitful at both the state and national. levels. The limitations or the stuq were recognized 1n that full ccwerage could not be given to the tracing of forces presumably responsible for maI\V significant changes in the meanings of the eoneepts. Suggested topics for further individual analysis include the following a 1 The influence or public opinion and/or the prese :ln bring ing about changes 2. Police powers exercised at the local., state, and national levels either in conformity with, or direeted against, the g oner~ understood meanmgs l. Decisions of the courts which re.tlected different Viewpoints at dif'.ferent times upon cas s very similar in charaoter.
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APPENDIX !-~.,.,e In a letter to John Ta,vlo:r; April 2St: 18141, Democracy l'Jl1St. be respected; lllllst be honoredJ deJl!oeracy must be cherished; demoer$CY st be an inte#al part of the sm-ereignty1 and have a control war the whole government, or moral liberby carmot m.st1 or tllJ3 other 11oert,. In a letter to Richard Price,. April 191 1 7901 ., Too many .Frenchm.en, after the exaq>le of too JD8I\V' Amerteana, pant for equality of pffflOns and property. The unprutibility, of this, God Alrd.ghty baa de~reed; and the advocates tor liberty attenpt it; will su.:tto tor it. I.n &. letter to John Tqlor1 Apri.l lSi 18141 That all men are bOrn to equal rights is true. Every being bas a right to hi& own, as cleo, as moral; as sacred;, as other be.tng ha$. A~, sad. Froia an esaa;y publ1shed 1n the A4"fJrt.;Lgg at the time when Adams was 29 years of age It is not infrequent to hear men declaim 1~ upon liberty, who it we may judge by th9 whole tenor o t their actions, mean no~ else by it btl.t the!f own lJ.berty,to <>ppN,ss without. contzto1 or the restraliit of awaii& are poorer or weaker than themselves 1'rom "Natural. Rights of the Colcmists as Men, 1774" The natural liberty 0 m&n; by entering into society, 1s abridged or restrained, so rar only' as 1s necessary for the great end of society,: the best good 0 the whole., lJ6
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Dicldneon, Jg Fran "letters from a F~, Letter IV" "There is," sq these objectors, ffe his. second letter 7 "amatenal dif.terence between the S!!5? Act and the fate Act for l.a11ng a duty on The dllties ~osed by the $m A.et were t;~ taxesJ but the present are. exter-nal, ~ore t par ament have a right to !Dpose tiieim. H F.ran "Letters f'rom. a Fanner, Letter XI"t I ba've stmral times, in. the course of these letters, mentioned the late aot of parliament [!or raising revem'i.il, as being the fcnuidat1on of fUture measures injurious to these coloniesJ and the belier of this truth I wish to pre,rail1 because I think it necessary to our sa.tet)t Prom ''Letters tram a Farmer, Letter I" t FrQll m::, infancy I was taught to love bMP!J&~ and liberty. Enquiry and experience have since conh.rmed 11'1 reverence for the lessons then given me, by convincing me more fully of their t.ruth and excellence. Benevolence to. wards man]dnd_. acites wishes for their welta.1"8, and such r...shes endear the means of'. fulf1ll1ng them. These can be folUld in liberty ~, and therefore her sac.red cause ought to be espoused "by evf:!lry man on every occasion; to the utmost o.f hie POW9l' Franklin, b1!!&! From Ull)Ublished manuscript in library of American philosophical Soc:Lety1 Philadelphia.. To the British peopl.e1 We know your power can crush us -but 'tis time enough to suauit to absolute power when we ean no longer resist 1t, when those who chu.se rather to die in Defense or their Liberty than consent to Slavery are accordingly dead. From The Writipgs ot Ben;1ann Franklin, edited by A H Smitht "God grant," he wrote, 11that not onl;v' the Love of Liberty, bu.t a thorough Knowledge o f the Rights of Man, -. pervade all the Nations of the Earth." 1.37
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From. "Thought.e on the Origin and Nature of Governaent. Eisel.en ~tns Pol.itiC!,l TheQ.t:i,eau According to Frankl.in, the social contract was a conpact between equals, uniting tor a camaon plll'pOee. Fr
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tencm,. In a letter to F Hopkinson in 178' t I disapp roved frUn the first llOfDent in the new Ocnst4;t.ut.1on the ant of a bill of rights,. to guard liberty agaiUt the legis.lative as well as the executive branches of the govemment. In a letter to Rev. Charlea Cla.T in 17'0 1 The g round of libert;J' is to be gained by inches and w must be contented to secure what we can get, !rem time to ti.me, and etema~ press forward for what is yet to get. It takes time, to persuade men to do ewn what is for their own g ood In a letter to x DeMeum.e, 1m, a wam. zealot tor the att.a2nment axM1 en3oament tu all mankind of as much liben7t as ch may exercise with out 1njU17 to the equal liberty of bis fellc:,w oi~zens. I have lamented that 1n France the endeavors to obtain this should have been attended with the ettuaion of so much blood In repq to .Address, 1807 t To unequal privileges among members of the same soc1etq tbe spirit of our nation i with one accord, adverse In a letter to M Coray in 1823 s .. The equal rights of man, and the happiness or everr 1nd1 vidual., are now aclmowledged to be the o~ leg:1. tit.mate objects o government. In a letter to Dr. Bendamln Ruh .. in 180J When one undertakes to administer justice, it must be with an even hand am by ruleJ what is done tor one, must be done for evwyone 1n equal degree. 139
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~ .Wllll From "The Social PbUosopq of ll1am. I.'1v:1.ngstalt11 H W. Thatobal't It seems qm.te certain, hon'V81'1 that ,mat be. me,mt by the pe~ple" was that portion of the people wbtoh in that daJr e~oyed the .tnncbi.se, that is to aay-1 speaking, the properti.ed classes. One ind1oation that 'bhis waa eo is the fact; '1lat among all the reforms which he advocated tbroi1ghCIQ.t his life be nervw suggested tbe mcten sion of the .:baneb.1.se. Such an adasion is sigrd.fieant when n recall hi.a Ntomi,ng ,ea1 and the wide field over w!tleh he roamed in b1s neroue esea)'S Subjects, he a,vs1 Ila,' el.aim an abtolu..te libertq to pursue their happiness iJ1 their owm. way provi.ded their actions are not ~urlous to society: Madison, fm!! In "Federalist r.J'.1 Fe~ S, 1788t Justtce ls the 1!IIM1 of gave:mmen\. It 1e the eat of civil. oc1... It ever baa been and ner will be pursued uat1l it be obbainect, or until liberty be lost in tbe pvntt JBWMrr From Journal of Fed.,.a,l. O,(!J!!ff~Pfb F.clit.ed by E H Sootta The more the syatea a
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Sbumal1 1 J!Oer From Boger S herman, A Citilen of New Hawn, II," quoted in Paul Ist.~ter F ord., Essays on the Constitution of the United stat!}!. Upon the wbole1 the constitution appears to be well framed to secure the rights and liberties o the people and for preserving the goverments o the individual states, and if well administeNd to "8tore and secure pu blic and private cred1t1 and to g:tve respectability to tbe stat abroad and at hme '1'he immediate security of the eiv:S.1 and dmestic rights of the people will .be in the g overment of the partacul.ar states and as the dif.fi rent states have different local interests and custans which can be best regulated by their own laws 1 1 t should not be expedient to admit tbs federal goi.,e~nt t.A> interfeN 1d:th ~ ~ny-.fartbe.r than may be necessary for the g ood of the whole itUJ.1amson1 .!E Quoted in Paul Ieicester Ford, Essays on the Constitutice of the lbited States I But if our oonstd. tuents s ball discover faults 'there we could not see 8111'-0r if they hall suppose tha t plan is formed for abridging their liberties whe n we 1gined that we had been securing both liberty and property on more stable toundation-d.t they percei that they a:re to &Utter 8 loss I wbel'e we thoug h t they JrllSt rise frail a mistort.une -they will. at least do us the justice to cbar g those r.rors to the head, and not to the heart. lsonrt Jamee th regard to the authority of t .he H ouse o f Coumons 0 Great Br1 ta1n t And have those, lllbe we have b1 therto been aceustaned to c
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latter, do they lose it by quitting the soil? lb thos who em.balk., .freemen in "3t Britain, disemwk, slaves, in America? From ttJ.nwoduotor,y Iscture or the Study or the law 1n the United States, 1790"1 Were I called upon for 'lf1'Y reasons 1ft\Y I deem so bighq of the American Character, I wculd assign them in a very .tew words-that character has been eminent]3 distinguished by the love or 111;,erty and the love of law From ttSpeech in Convention 0 ~ylvaniat 26 H~; 1787" I The advantages of demooraoy are, liberty, equal.6 oaut.S,ous, and salutar,y laws, publick spirit, trug lity, peace, opportuni. ties or exci ti.ng and productng abill ties of the best citizens. Its disadvantages are, dissen ions the clelay and disclosure of publick counsels, the imbec:U1ty of publtek measU1'88 reta:rded by the necessity of numerous consant From "1ntroductor;v eture of the Stud;y of the Law 1n the United States, 1790" But 1n the adm:S n:lat.ration ot just.1.ce-tbat part et govemmen'h, which comes bane most intimatel to the business and the bosans of men-t.here are ju.dg as 11 as jurors J tbose, whose peculiar province is to answer questions of law, as well as those, whose peouliar pxov!.nae it is to answer ques,.,, tions of' fact.
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Book$ Aaron, Daniel (ed.), Amerlu in or1ss... Hew l'ol'ka Alil'ed A. Knopf, 19,2. Adams, Charles n-ancis (ed.) The ltle and Wol>~ s of JOM !it!! Vol. VIII. Bostont Cbiriei ff, :flQ,:tz & James n;;;;;taso. Adams, Ephraim Douglass. The Power of Ideals in Amer.t,.oan Historz. New Haveiu Yale tiilwrslti PNia-s, If!:,. Adams, James 'h'uslow (ed.). Pn,nei~ ~eta fN.D the Wri~s o f Alexaq. Becker, Carl. The Declaration of ~ru, A St*17 in the-His~ of PolitiCJltI Icltas. & Yi~oiirt, &ace & do., 1. BeOkeJ' Carl L. New. 14.bertl;p for Old.. Nn Havens Yale Universit,' Pl'ess, 19Q. Billington,. Allen. 'fl'' Pro!:!~t Crusade 1800-l86ot A s~ of the ~-o'l Aaeiioan Nata.viii: New YO'rk s i&.nelia~ & bo., I !938. Blackstone. Wllliaa. ~oaa.enr:t.es on the .Lalra Qf Ellglafld. Vol. I ed Oeorge Sbaa:'Swood. Nilmpffis J. B ~i'.Ipp1ncot.t & Gompany 167S.
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Boardman, Roger Sherman. Rog r Shern I S*=i nd Statesman Philadelpbiat tlliverei\y o nnsy a Pr a1 1"959. Bowers, Claude o. J'eft~on and Hamilto~The ~le for !!Cf 1n Ameriea. ifosGi, itouglr m-9., 1. Brant, Irving Storm owr the constitution. New Yorks BobbeMerrlll co., 1936. Chafe .1 zecbariab Jr. FNe~ecb i,n the lJnited S~tes. Oambridger Harvard Uni versit;y 8 t 1941.e Cha.tee, Z&chariah Jr, pcm Human~ Got Into the Constitution. Bostona Boston Uiilversit;r s, i,.;2. Conmager, Hanry Steele (ed.). Documep.ts of Ameri,can His;tog, New Yorlu F s. Crofts & &. ,. tJi7. CODDager. Heruy Steele (ed.) JA;vir!g Icleae a America. New York I Harper & Bros., 19,1. Commons, John ft4 Saposs, Da.Vid J J Sallner, Helen L J Mittelman, E B.J Hoagland, H E.J Andras;. John B J Perlman, Selig. Hlsclii:fJf Labour 1n the United States. Vol. V Rew Yorio L ao., 1918. Cotvel.11 Donald P Teacher F.ducation tor a F.ree Pe,le. Oneonta., N. Y t American Issoelition of Colleges t'or e a pber Fducation, 19$6. Cou.nta, George s Education and .American Civ:Uiz ation. New Yorkt Teaehem C oi"Iege, Coiiin\,{a tfii!verslti, ~2. Counts, Georges. The Education ot Fne Men 1n American ])eploorap;. Wasbing tozu Mucat.lonai Pottoles dommlsdcn1 The Ltlonal Education Association, 191,1. Counts, George s 'l'be Prospects of ~rtcan Democraoz. New Yorkt John Day Co,. 19. Coyle, tavid c ; Dreher, C.J landau.er, c am Johnson, Gerald w The American Y!V New Yorka Harper & Bi-os., 19)8. c:ro:q, Herbert. The Prcmd.se or Am.er.t,.can IUe. New Yorks llacmillan Oo ., 1909. Curt.11 lierle. T,he Gl'qWth of American ThoSht N Yorka Harper & Bros" i951 Curtis, Charles P It's Your Istr. Cambridget Harvard University-Press, 1954.
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Dae,.' John. I4:!>!!!l:1 Sons, t~ Dewe7, John 1:he Living Thoughts of Thomas Jeffers.. New York t Ionginaiis, i1reen& co., DAG. Doubleday' and McOJ.ure .Compal\Y (ed.). --~ and Adcb'eseea of -,.w.am Molt1nlef Herr York1 ES.eel.en, Malcom R. Prlin's Polit.i.'1} Theoriee New Yorks Doubledq I Doran & Co., !no., 28.. Far:rand.1 K The Recozds of the Federal Oon'Vention of 1787. 4 vols New li'.wn Ya!e fin:i.vin!\,. Preis. D:J7. Foley, John P (ed .). The Jettenoni.811 OY!l.GJ>!d!:a New York 1'1nk: & Wagnalls 1oo. Ford1 P au.1 Leicester Bsa!.~n the Constitution of United States Brookljn1 'forR I l!s\orl.ca1 Printing d:ub1 n@2. Ford, Paul Leicester {ed.). rbe Wrtt1!; of J'obn Dl.;.i;OO Vol. I. ffd.ladelphiaa HLi\oi:.tcal cleti of Penns7 rim.a 189S. Fl'aenkel, Osmond K Our Oiv11 Liberti New Yorkt Viking Press, 1944. Hale, WilJ:Jam Harlan. The Vareh of Freeoan York Harper & Bros. 1947, Harper, F A U.be:rt,, A Path to Its Reoovrii Irvington on the Hudsoru 11ie ouiiilatlon lor fcioncimic ucat:lon, 1949
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Herold, Charles J., (comp.). The. !lsd ot WOOfD'ff W13!!n. ,Bew 'forlu Brentano s, ui,. Hi~, John D The~ Urd,on. New Yorlu Houghtoa IU.ttlia co., 1948. au, Helen. _George Masont Oonet1tutd.onaliet. Qambridgec Harvard tflliverslti,9'8. Hotstadter l\.i.chard. The American Pol;l.ti.cal T~dition and the !lea who It+ I;; fork& n&eci X. Riiopl, mt:. JohnSon, o.al.d w This American !!9Ele e New York t Harper & :aros., 1951. .. I Kelle,. Earl c Eclucation For What Is & Bros0 ili?. l. H Yorka Kelley, Eal-1 c., and Raaq Vane I EdUA1&Uon and the NatUR of __ Hew Yorks Ha~l' & Bros ~ ffll Koch, Adrienne Jcd'fe,:son and 14d1, Tbe Gnat Collabo)('atie>Jl New Yorkt lllreJ X fiiopf, l o. Laski, Harold J I4beJ.ot,y in the, itoderp State.. New York t Harper & Bl'os., 1)) !Anrin, Kurt. A .~c Theo!Ji of Penona;i:t:tf New Yorkt ,icarawm.u Boo. o ., s., -,,~. Locke, John. 1.tbe Works of Jobn ~ A Rn ~U.! Oonect,td 182) ''101. V fmidoiu 1Javison1 wlil fr!ara. Madison, James. Jounial of 't;he Fe4eral ConventJ.on. ed. E H Scott Chioagoa Soti, l'orea.an; co., U,j. Merriam, Charles. E The N ~e; and the 1Deewtlsm. New York I Mc?.lrn m:n: A o., lie., 1,s,. Merriam., c. A~ot _.Amer~an ~lit.1,()tll 'l'bl,,ones. New Yorks Maem co., !9lJj. Miller; John c MI>h of~ Bostons 14.ttle, Brown, & oo., 1946. M:l.l~ John. John M1ltge1 PToae Selecsti~. ed., Jlerritt Y Hughes. New Yon:a Mjisey Pdi~, Dlif.
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Moley, Raymond. Hqw to Keep Our U.berty New Yorks Altred A Knopf, lM. M urph7, Gardner Personali~. New Yorlu Harper & Bros, 1947 Ne'Vins, Allan, and Com.ager, Henr.v Steele. America, The Ste>~ 0 a Free People. Boston1 Little, Brown, arid co ., l9L~ Nichols, Roy Franklin. '1.'be Disru.ption of American Democrag. New York: cmi!lan co., 1946+ Ogburn, lliam Fielding, Social Cb:!!B New Yoriu Viking Press, 1950 Padover, Saul K. The Comlc,lete Madison a His Basic Wri ~s, New Yorks Harper & s., 1955. 147 Pad.over, Saul K {ed.). WUsons Ideals. 'Wasb:lngton, n c a American C o uncU on Pnblio Rl'alrs, 1942 Parrington., Vemon !Du.is Main Currents in .American Tho3ht. New Yorks Harcourt, Brace and Go. ijo. Randall, J. o Lincoln ~be Liberal Sta~sman. New Yoriu Dodcit M ead & C o. 1967. Reid, William J,, and Regan; Herbert. o assaehusetts1 History all'l Government o f the 1!1l Sta-. New 'forks oil'oid Book Co., Roback, A A. Personali~in Theoq and Practiqe New Yorks McGraw-Hill Book 1955, Runes, Dagobert D. (ed.). Tbe AmericanJ!az Selections from the pu blic addresses antl papers or Franklin D Roosevelt. New Yorks Pb:1losophieal L1.brar:r, 1944. Rutland, Robert All.en, The Birth of the Bill o f Rie, 1;-1zp1. Chapel Hilla Umwrsliy of Noi=ES Caronna s, 9 $ Simkins, Francis lb\ler. A Hi.sto;r ot the se,tb. New York: Al.t'Nd A Knopf, 195). Styron, Arthur, 'l'he Last of the Cocked Hats. Normans University o f Oklahoiii P.i=ess, iL~. Thatcher, Harold sley'. The Social Philosophy o f lliam Li.~~ Chicago: tS.vereity o? CliloagoL{tirarles, :@j.
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Tutts, James R Our Democrafo' Its _OriE;98 and Its Tasks. New York: Hen.ry Ho!t & o., l917. 148 United Nations Educational Scientific, and Cultural Organiu.tion (ed .). Ht.1Dan Rights. New York: Columbia thivers1ty Pitess 1949. -ware, Noman J. Labor 1n !lodem Industrial Socie;tg. Boston, n c. Heath & co., tjs. Wells, William V. (ed.). The Lite and Public Services of Samuel Adams. Vol. I. Boston.a ttie, firmm, & Co., 1865 Whipple, !eon. Our Ancient Liberties. New Yorl u H. w Wilson co., 1927 Wilson Bl.rd (eel.) The Vlorlca of_ the Honoele Jam.ea_ Wilson. Vol. III. Pbil.ade1pld'.at !Zren$O s, 18oJi. Wilson, James. Selected Pol,1t1cal ~salitpt_1'amesWUson._ ed. Randolph G 1. New Yori, red X. liiopl, i930 Wish, HaMey'. Soc~e!i'; and Tl10!!3bt 1n Modem America. Vol II. New YQrk: Green & bo., is Wright, Ben-1amin Fletcher Jr. A. Source Book of American Poli\i.oal Hl.stoq:, New York1 cinlllaii Co. 1929. u s Department of Justic, Imnigration and Naturalization Service. Aids for Citizensbit 'l'eachen1 A Resource Unit for Use in \lie Public Setioo1i 7 'l'eaciiers and Candidates for Naturalization. u s The Report of the Pre idents CQIIID.ittee on Civil Rights. To secure These !ibta 1947. Articles and_Per.1.odicals Browne E leanor Bode. unr Hutchins and the American of Lite," School and Socie:t,, 70 (December 17; 1949), 410. Hutchins, Robert V.. "The American Wq of Li.le," School and Soe1etz, 70 (August 27 1949), 129 -tnenstein, J4o1Tis Roten. "Some Current Projects in Citizenship Education," Propessive Educat1oi, XXll (May, ~952)1 2h9...S2.
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Smith~ J~ Jlortci. tt'fbe Federalist "SainteU Venus "The Devil ot Sedition" The Idbe:rty Pole Gases or Dedbaa, Mass., 1798-1799," In E~land ~9 (June, 195$), PP 198-215. Williamson,. Chilton. OJbode Island Suffrage Since the Dorr war," New !?Jland ~g (11arch, l,SS), PP 34-50. Unpublise! Jlatel'ial Hines, Vyncia Al.bert A Orit1cal Stuctr of Certain en teri.a for Selecting Curriculwa Oontent. unpublished Ed.D. dissertation, Department of Education, Un1ven1ty of Illinois, 1949. Lnenstein,. Morris Robert. t.An An~ls of Some Concepts ot Oit.1.sensbip Education..' Unpi blisbed M.D. dis&erta:tion Department ot F.4ucation, Un1V91"81ty ot Illinou, 19S3.
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BIOORA.PHl'.OAL SKETCH Arthur Christie was born in Aberdeen, Scotland on J~ 20, 1906. He was brought to the '(ht ted States by' his parents in 1911 ... and attended the public schools of Quincy, Jlassaohusetts, graduating frQl'l hig h school in 192h.. Du.ri ng 1926-1927 he attended th H untington School of Boston, sachusetts. This was follolled by four years at Edinboro State Teachers College, Fdinboro, Pennsylvania Hls activity 1n sport.a led to his beocming captain o f the football team in 1929. Edinboro granted him the degree of Bachelor of Sci.enc 1n Education in 19.31. ms teaching experience has been at both the 3un1or and senior hig h school le'vels, inclnding all grades from seven through twelve In addition to olassroem teaching he had several years of summer camp counselin g and coached bigb school football and basketball. All bis teaching has been done in Massachusetts and Georgia. During his early teaching years be attended. summer sessions at Teachers Oollege1 Columbia University In the summer of 1934 be sel"'led as vice-president o f the Hew England Club and as president the su"" ceedin g sunmer. He s granted the d. gree of Mast.er of Arts in Administration in 19)$,. Teaching 7ears nre interrupted by .four years 1d. th the United States A:rtrq1 Air Oerps the greater part of it in O"Verseas service with the Elghth A1r Force. Ehtering as a private in Febr'tla.%7
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of 1942 he retumed t:rom overseas in October of 1945 w1. th the rank of capta1n. Six 3'981'8 of self-employment in New York City and Dqtona Beach Florida followed a1'i1ey' service. In Daytona Beach he was a member of Rotary International.. In the summer ot 19S2 a desire to retum to teaching led to taking coUJ'Ses at the UniYenitq of New Hampshire, Dumam, Mn Hampshire. That was f oll.ewed by the decision to pursue a p .rogram leading to the doctoraw which was started at the Univel'Sity of Florida, Gainesville, Flor!da1 in the fall o f l9S2. At the pl"esent tim he teaches in the Central High School ot Quincy, ssaohusetta He is a member of Phi Delta Kappa and of bis local and state teacher associations, QTA and KT.A..
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This dissertation was prepared under the direction of the chdnlan or the candidate s supervf.so17 comm.1ttee and has been approved by all meabers of that eommi:ttee. It was sul:mtltted to the Dean of the College ot E ducation and to the Graduate Council, and was approved as partisl Mi'Ul ment o t the requiremes tor the degree ot Doctor ot Education August 9, 1958 SUPERVISOO.Y C O MMITtFZt 3k L.G/&...J {!.;f pO~~ e w j ~J~,t
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