.

(continued)

The first question concerned the placing of the authority for defense as between the states and the to-be-newly-constituted federal government. The federal side of that argument was, of course, vigorously presented in the Federalist Papers, supporting the military sections of the proposed Constitution. In Federalist #25, Hamilton wrote:

"[The] transfer [of] the care of the common defense from the federal head to the individual members [would be] a project oppressive to some states, dangerous to all, and baneful to the Confederacy. ...I expect we shall be told that the [states'] militia of the country is its natural bulwark, and would be at all times equal to the national defense. This doctrine, in substance, had like to have lost us our independence."

That moment of Hamiltonian scorn was not the best that he and Madison could do by way of persuasion. On behalf of the proposed Constitution's denial to the states of the right to raise armies, they spelled out again and again, in several of the Federalist Papers, the debilitating confusion that would arise from the opposite course, and the dire prospects of internecine warfare it could well bring. Indeed, of all the arguments for firm federal union probably the strongest was the argument that it was indispensable to providing for the common defense. In Federalist #25, Hamilton wrote: "The territories of Britain, Spain, and of the Indian nations in our neighborhood do not border on particular states, but encircle the Union from Maine to Georgia. The danger, though in different degrees, is therefore common. And the means of guarding against it ought, in like manner, to be the objects of the common councils and of a common treasury."

However, once granted that "the war power," as it later came to be called, should be predominantly placed in the national government (predominantly, because the state "militias" were constitutionally given a subordinative, counterbalancing role in national defense), the questions arose: How shall it be defined? How shall it be "limited," since, after all, constitutional government is limited government?

The apprehension in such questions was not taken lightly. Indeed, in Federalist #8, though he was there arguing for federal control of the war power, Hamilton spoke generally:

"Safety from external danger is the most powerful director of national conduct. Even the ardent love of liberty will, after a time, give way to its dictates. The violent destruction of life and property incident to war, the continual effort and alarm attendant on a state of continual danger, will compel nations the most attached to liberty to resort for repose and security to institutions which have a tendency to destroy their civil and political rights. To be more safe, they at length become willing to run the risk of being less free."

Immediately following that paragraph, the next paragraph begins: "The institutions chiefly alluded to are standing armies and the correspondent appendages of military establishments. Standing armies, it is said, are not provided against in the new Constitution; and it is therefore inferred that they may exist under it."

In fact, standing armies are not safeguarded against in the new Constitution. It is possible for them to exist under it. From six of the ratifying conventions came, in one form or another, amendments designed to keep faith with the national "prejudice" that standing peacetime armies are "ever a menace to liberty."

In countering that "prejudice" and defending the proposed Constitution, Madison and Hamilton did three things: first, they argued generally and, it would seem, convincingly that no restrictions could be rationally placed on the power to provide for the common defense; second, by tracing the historical origins of the "prejudice" against standing armies, they tried to show why it should not become immoderate; third, they argued prospectively that there was little likelihood that anything but a small standing army, no hazard to liberty, would ever be needed.

Two texts will suffice to delineate the argument against the irrationality of any restrictions on the power to provide for the common defense. In Federalist #23, Hamilton wrote as follows:

"The authorities essential to the common defense are these: to raise armies; to build and equip fleets; to prescribe rules for the government of both; to direct their operations; to provide for their support. These powers ought to exist without limitation, because it is impossible to forsee or define the extent and variety of national exigencies, or the correspondent extent and variety of the means which may be necessary to satisfy them. The circumstances that endanger the safety of nations are infinite, and for this reason no constitutional shackles can wisely be imposed on the power to which the care of it is committed. This power ought to be co-extensive with all the possible combinations of such circumstances. . . .

"This is one of those truths which, to a correct and unprejudiced mind, carries its own evidence along with it. ...It rests upon [an] axiom as simple as [it is] universal; the means ought to be proportioned to the end."

In Federalist #41, Madison, noting that the issue had been confronted in earlier papers, nevertheless reiterated the argument:

"But was it necessary to give an indefinite power of raising troops, as well, as providing fleets; and of maintaining both in peace, as well as in war? . . .The answer indeed seems to be so obvious and conclusive as scarcely to justify such a discussion in any place. With what color of propriety could the force necessary for defense be limited by those who cannot limit the force of offense? If a federal Constitution could chain the ambition or set bounds to the exertions of all other nations, then indeed might it prudently chain the discretion of its own government, and set bounds to the exertions for its own safety.

"How could a readiness for war in time of peace be safely prohibited, unless we could prohibit, in like manner, the preparations and establishments of every hostile nation? The means of security can only be regulated by the means and the danger of attack. They will, in fact, be ever determined by these rules, and by no others. It is in vain to oppose constitutional barriers to the impulse of self-preservation."

Against the nearly axiomatic, "obvious," "conclusive" quality of such arguments for no restrictions, how could the "prejudice" against standing armies so stubbornly persist? Hamilton, in Federalist #26, proposed a genetic explanation. He wrote:

"The idea of restraining the legislative authority, in the means of providing for the national defense, is one of those refinements which owe their origin to a zeal for liberty more ardent than enlightened. ...It may not be amiss in this place concisely to remark the origin and progress of the idea, which aims at the exclusion of military establishments in time of peace. Though in speculative minds it may arise from a contemplation of the nature and tendency of such institutions, fortified by the events that have happened in other ages and countries, yet as a national sentiment, it must be traced to those habits of thinking which we derive from the nation from whom the inhabitants of these states have in general sprung. [After a review of English constitutional history up to the 1689 Bill of Rights], the people of America may be said to have derived an hereditary impression of danger to liberty, from standing armies in time of peace. The circumstances of [the American] Revolution quickened the public sensibility on every point connected with the security of popular rights, and in some instances raised the warmth of our zeal beyond the degree which consisted with the due temperature of the body politic. . . . The principles which had taught us to be jealous of the power of an hereditary monarch were by an injudicious excess extended to the representatives of the people in their popular assemblies."

In the last sentence, Hamilton was adverting to two facts: (1) that the article in the English Bill of Rights had read: "the raising or keeping a standing army within the kingdom in time of peace, unless with the consent of Parliament, was against law"; and (2) that in the proposed Constitution for the United States the power regarding standing armies resided in "the representatives of the people in their popular assemblies."

In the latter half of Federalist #26, and in other papers, Hamilton argued the extreme unlikelihood of "an army so large as seriously to menace the liberties of a great community." "What colorable reason could be assigned, in a country so situated, for such vast augmentations of the military force? It is impossible that the people would be long deceived; and the destruction of the project, and of the projectors, would quickly follow the discovery. ...Upon what pretense could he [the Executive] be put in possession of a force of that magnitude in time of peace? ...It is not easy to conceive a possibility that dangers so formidable can assail the whole Union as to demand a force considerable enough to place our liberties in the least jeopardy." Before leaving this point, it should be noted that in tribute to the "prejudice" that regarded large standing armies as a danger to liberty, the actual practice in the subsequent century involved very small armies.

The direct address to the "prejudice" about standing armies was, however, only a part of the answer that could be given to expressions of dismay about the national government's being endowed with unlimited power in military affairs. The framers, to restrain the domestic effects of the exercise of that power, resorted here, as in other dimensions of the Constitution, to the separation of powers and to the device of checks and balances.

For the purposes here, a concise summary is given in Walter Millis' 1959 Fund for the Republic pamphlet, The Constitution and the Common Defence:

"The President's exercise of his virtually absolute powers in the military and foreign field was controlled in the first instance by making him subject to impeachment and, quadrennially, to retirement by the electorate. His treaties were to be supreme law (and Jay in Federalist #64 recognized, long before Senator Bricker, the possibility of "making law by treaty"), but this executive invasion of the legislative field was checked by requiring a two-thirds vote in the Senate for treaty ratification. There was no restriction upon his powers as Commander-in-Chief; but it was Congress which would raise, maintain, regulate, and provide the funds for the forces available to him to command. It was required that military, like other, appropriations must originate in the popular branch; and by restricting Army appropriations to run no more than two years, each new Congress was not only assured the opportunity but placed under the necessity of reviewing afresh the military establishment. The President's selection of military, as of other, officers was subject to senatorial confirmation. Finally, the power to declare war was vested in the Congress, not the President."

Here, then, the framers thought, was a powerful system of checks upon the exercise, by the President or the national government, of the almost absolute authority given them in the field of foreign and military policy. The Federalist authors argued for the adequacy of such checks as a protection to liberty. They adverted especially to the separation of the purse and the sword; to the two-year restriction on appropriations for the Army; and to the placing in Congress of the power to declare war. (When Pierce Butler, in the Convention, had wished to give that power to the President, Elbridge Gerry replied that he had "never expected to hear in a republic a motion to empower the Executive alone to declare war.")

However, the Constitution could not quite stop with such provisions for the assignment and the restraint of the war power. It had further to meet two of the deepest impulses of the times. Both were present in Section 13 of the Virginia Declaration of Rights, previously quoted. One was the reluctance of the states and state governments to surrender a complete monopoly of military power to the federal union. The other was the widespread conviction that only an armed people could remain a free people; the common defense, in the last analysis, could never be entrusted wholly to national armies but must remain in the hands of the people themselves.

The first concern was met in the ingenious compromises set forth in the clauses in Article I, Section VIII, that deal with the militia. The second concern was met by Madison's inclusion in his proposed Bill of Rights of what is now the Second Amendment.

Through the first seventy years of our history, the military establishment that issued from such provisions, checks, and compromises, in the opinion of Walter Millis, "operated with rather notable success to realize the hopes which had been pinned upon it." Millis goes on to say: "It averted interstate or inter-sectional war by eliminating strategic and economic causes for one. Greatly aided, to be sure, by geography and the international politics of the time, it relieved the young nation of the burdens and political perils of large standing armies. At the same time, it created a Union of sufficient military strength, actual or potential, to repel whatever military threats there were from the outside world." Neither the War of 1812 nor the Mexican War "led to any significant movement to revise the military structure or the military provisions of the Constitution."

It will serve the purpose here to continue to make use of Walter Millis' summary history of the fortunes of the military constitution. His brief paragraph on the Civil War cannot help but produce a shudder about the misfortunes of human history:

"The Civil War, however, represented a cataclysmic failure of the military no less than of the political and economic compromises of the Constitution. In a sense the war was made possible only by that careful but, as it proved, unstable balance of federal, state, and popular military power on which the founders had insisted. It was Lincoln's call upon the militias of the border states to assist in suppressing their rebellious sister which forced the border to choose sides. It was the 'preponderating influence' of the states over the militia, stressed by Hamilton, which had permitted the continued existence of at least partially trained and equipped state forces, owing their allegiance to the governors and legislatures rather than to the President and Congress, and so enabled the Southern states to rise. It was the absence of any large standing army which permitted the rising to reach the heights it did. The military guarantees which the Constitution had afforded the states proved to be real ones. To Southerners, the war vindicated the military no less than the political powers which had been left to the states precisely in order that they might repudiate a national 'tyranny.'"

Millis continues: "But the South lost; and in the result the military balances of 1789 were destroyed or rendered meaningless."

There is no need for any attempt here at even a brief tracing of the steps from a military establishment comprising a small standing national army, state militias, and an armed citizenry, to the present colossal military establishment - huge in size and arsenal, globally stationed, biting deep into the budget, symbiotically related to a substantial part of the nation's industrial power and to scientific and technological research, raising issues of secrecy and using agencies of secret intelligence, and having immense impact not just on foreign policy but on domestic politics. Of course, this present military establishment has more than just the mission of "providing for the common defense," which was the only military mission for all but about the last thirty years of our nation's history; it also is judged necessary to support international commitments deemed to serve vital national interests and, in some interpretations, international interests as well.

It is therefore relevant to ask whether certain ingredients in "the American testament" survive such a radical transformation in military size and missions. The question concerns not so much the constitutional devices as the fundamental judgments that led to their invention and adoption. In the last thirty years, during the era of confrontation and of major international commitments, the framers' device of dual political control over the military has not worked very impressively. Before an increasing autocratic strain in the swollen Presidency and the strong positioning of the General Staff and its huge bureaucracy, Congress, perhaps, has appeared confused and more or less impotent. Until just recently, the purse was passed quickly to the sword. And Congress has acted as if it were embarrassed by its constitutional power "to declare war."

But what of the early national presuppositions that are parts of our testament? Do they hold as principles, however remote, on which to base judgments?

The Virginia Declaration of Rights affirmed that "in all cases the military should be under strict subordination to, and governed by, the civil power." No doubt a record of violations of the spirit, if not the letter, of that principle could be drawn up. A certain wariness on the point has not been absent. Yet, with all sorts of examples before us of military takeovers of governments and societies, it is often taken for granted that "it can't happen here."

Another proposition from the Virginia Declaration read: "Standing armies, in time of peace, are dangerous to liberty." In our time of precarious peace, we have a large standing army and multifarious military installations. Damages to liberty of the sort the founders had in mind, from their memory of the Stuarts and of George III, have not occurred. But there are, perhaps, some indications that liberty is in jeopardy. Conscription and various kinds of job-dependencies in "defense industries" have engendered inroads on individual freedom. Civil liberties have not been firmly secure under recent governments that have been anxious about subversive beliefs, aroused mass protests, and collective actions of civil dissent. In general, political liberty is diminished in degree by the existence of a huge military establishment, because it is difficult for citizens to be constantly alert to its implications and consequences.

The Supreme Court, however, has developed a tradition of concern about threats to liberties from military establishments and aims. The Court's deliverances in this area, as in others, can be judged, in hindsight, as spotty. Certainly, one of the worst blemishes on its whole record was its endorsement of the treatment of West Coast Japanese-American citizens at the outbreak of World War II. Yet, on the level of principle, there has been clarity. Two examples of judicial dicta are worth setting down here.

In a famous and major case involving the jurisdiction of military tribunals (Ex parte Milligan, 1866), Mr. Justice Davis, after declaring that the case "involves the very framework of the government and the fundamental principles of American liberty," and after reviewing the constitutional provisions for liberties, wrote as follows:

"The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine, involving more pernicious consequence: was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government."

In a 1948 case (Woods v. Miller Co.), Mr. Justice Jackson wrote as follows:

"The government asserts no constitutional basis for this legislation other than this vague, undefined, and undefinable, 'war power.' No one will question that this power is the most dangerous one to free government in the whole catalogue of powers. It usually is invoked in haste and excitement when calm legislative consideration of constitutional limitation is difficult. It is executed in time of patriotic fervor that makes moderation unpopular. And, worst of all, it is interpreted by the judges under the influence of the same passion and pressures. Always, as in this case, the government urges hasty decision to forestall some emergency or serve some purpose and pleads that paralysis will result if its claims to power are denied or their confirmation delayed.

"Particularly when the war power is invoked to do things to the liberties of people, or to their property or economy that only indirectly affect conduct of the war and do not relate to the management of the war itself, the constitutional basis should be scrutinized with care."

By way of underlining a persistent continuity of thought on the subject, one can put with those two judicial texts (and there are many more) these words by Madison, "the father of the Constitution," who said in Federalist #41:

"A standing force, therefore, is a dangerous, at the same time that it may be a necessary, provision. On the smallest scale it has its inconveniences. On an extensive scale its consequences may be fatal. On any scale it is an object of laudable circumspection and precaution. A wise nation will combine all these considerations; and, whilst it does not rashly preclude itself from any resource which may become essential to its safety, will exert all its prudence in diminishing both the necessity and the danger of resorting to one which may be inauspicious to its liberties."

The phrase "general welfare" had been present in the third article of the Articles of Confederation, which read: "The said states hereby severally enter into a firm league of friendship with each other, for their common defense, the security of their liberties, and their mutual and general welfare." It is in no way clear what the phrase there meant. If it was interpreted as equivalent to "the common good," "the public good," "the commonweal," or "general happiness," it would then be designating the all-embracing comprehensive end of government. With so broad a meaning, it could not logically be placed in the Preamble to the Constitution as one of six purposes that together constitute an articulation of the complex structure of the common good, with which it was identical.

The phrase gained its specific meaning, not from any early elucidation of the Preamble, but rather from discussion during the period of ratification and from later constitutional developments occasioned by the occurrence of the same phrase in the taxing clause of the Constitution. The first paragraph of Article I, Section 8, reads: "The Congress shall have power to lay and collect taxes, duties, imposts, and excises, to pay the debts and provide for the common defense and general welfare of the United States." There then follows an enumeration of specific things that Congress is empowered to do, first an odd assortment of fiscal and military things, and then an odd assortment of things neither fiscal nor military. Section 8 ends with what came to be called "the sweeping clause": "The Congress shall have power ... to make all laws which shall be necessary and proper for carrying into execution the foregoing powers and all other powers vested by the Constitution in the government of the United States, or in any department or officer thereof."

Power to tax and spend for "the general welfare," with the additional provision of "power to make all laws which shall be necessary and proper for carrying into execution the foregoing powers" - that sounds like very great power, indeed! Madison, in Federalist #41, took note of a fierce attack on the language of the first paragraph of Article I, Section 8, on the ground that it would amount "to an unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare." He undertook to ward off such an attack by saying that the first paragraph did not announce a separate power to tax and spend for the general welfare; that it was just an introductory heading for the powers specified in the following paragraphs of Section 8; that the taxing-and-spending power was limited to those specified powers. With that interpretation, Madison was not merely pleading for ratification. He fervently believed, and continued to believe, along with Jefferson in their later opposition to Hamilton, that the major issue of limited versus unlimited government was at stake in the interpretation placed on the reference to general welfare in the first paragraph of Article I, Section 8.

Madison may have been right about the original intentions behind the phrase "general welfare" in that section. He was, after all, "the father of the Constitution." But the matter was not put to rest by his vehement words on the subject in Federalist #4l.

In December of 1791, Hamilton, the Secretary of the Treasury, presented to Congress his bold and brilliant Report on Manufactures. He worked into that document his own constitutional interpretation:

"A question has been made concerning the constitutional right of the government of the United States to apply this species of encouragement, but there is certainly no good foundation for such a question. The National Legislature has express authority 'to lay and collect taxes. . . and provide for the ... general welfare.' . .. These three qualifications excepted, the power to raise money is plenary and indefinite. . . .The phrase [general welfare] is as comprehensive as any that could have been used, because it was not fit that the constitutional authority of the Union to appropriate its revenues should have been restricted within narrower limits than the 'general welfare,' and because this necessarily embraces a vast variety of particulars, which are susceptible neither of specification nor of definition.

"It is, therefore, of necessity, left to the discretion of the National Legislature to pronounce upon the objects, which concern the general welfare, and for which, under that description, an appropriation of money is requisite and proper."

Jefferson spoke of this privately to Washington, urging that Hamilton's proposition seemed to go "far beyond every one ever yet advanced" toward making the Constitution "a very different thing from what the people thought they had submitted to," and had indeed forced the people to consider "whether we live under a limited or an unlimited government." Madison wrote to the governor of Virginia: "What think you of the [Hamilton's] commentary... on the term 'general welfare'? The federal government has been hitherto limited to the specified powers, by the Greatest Champions for Latitude in expounding those powers - If not only the means, but the objects are unlimited, the parchment had better be thrown into the fire at once." On the floor of the House, Madison repeated his view that the words "general welfare" were simply "a sort of caption or general description of the specific powers" that followed, and had "no further meaning" and gave no "further power" than what could be "found in that specification." "In short, sir," Madison concluded, "I venture to declare it as my opinion that were the power of Congress to be established in the latitude contended for, it would subvert the very foundation and transmute the very nature of the limited government established by the people of America; and what inferences might be drawn, or what consequences ensue from such a step, it is incumbent on us all well to consider."

Madison was persuasive in the House. Hamilton suffered a major defeat. His important Report on Manufactures was pigeonholed.

The argument, however, was far from over. Although one or another sort of welfare legislation did get passed, the constitutional issue was not raised until well into the twentieth century. It was the Great Depression that brought the Supreme Court, in a series of cases during 1936 and 1937, to resolve, in Hamilton's favor, his dispute with Madison about the range of the power of Congress "to promote the general welfare."

In the case of United States v. Butler (1936), in which, for a side reason, the decision went against the Agricultural Adjustment Act (involving subsidies for reduction of the farm surplus), Mr. Justice Roberts' opinion for the court reviewed the doctrinal quarrel and explicitly settled it in Hamilton's favor:

"The argument is that Congress may appropriate and authorize the spending of moneys for the 'general welfare'; that the phrase should be liberally construed to cover anything conducive to national welfare. . . .

"Since the foundation of the nation sharp differences of opinion have persisted as to the true interpretation of the phrase. Madison asserted it amounted to no more than a reference to the other powers enumerated in the subsequent clauses of the same section; that, as the United States is a government of limited and enumerated powers, the grant of the power to tax and spend for the general national welfare must be confined to the enumerated legislative fields committed to the Congress. ...Hamilton, on the other hand, maintained the clause confers a power separate and distinct from those later enumerated, is not restricted in meaning by the grant of them, and Congress consequently has a substantive power to tax and to appropriate, limited only by the requirement that it shall be exercised to provide for the general [not local] welfare of the United States.

"Each contention has had the support of those whose views are entitled to weight. This Court has noticed the question, but has never found it necessary to decide which is the true construction. Mr. Justice Story, in his Commentaries, espouses the Hamiltonian position. We shall not review the writing of public men and commentators or discuss the legislative practice. Study of all these leads us to conclude that the reading advocated by Mr. Justice Story is the correct one. While, therefore, the power to tax is not unlimited, its confines are set in the clause which confers it, and not in those of Section 8 which bestow and define the legislative powers of the Congress. It results that the power of Congress to authorize expenditure of public moneys for public purposes is not limited by the direct grants of legislative power found in the Constitution."

Two immediately ensuing cases in 1937 are also worth noting. They are concerned with the constitutionality of different Titles in the Social Security Act of 1935. In both cases, that act is upheld in the decision. In both cases, the opinion for the Court was delivered by Mr. Justice Cardozo. In both cases, he adverted to the doctrine in United States v. Butler, set forth just above.

The first case, Steward Machine Co. v. Davis (1937), involved Title III of the Social Security Act, which authorized appropriations from the general revenue funds for the purpose of assisting the states in the administration of their unemployment compensation laws. Cardozo wrote:

"During the years 1929 to 1936, when the country was passing through a cyclical depression, the number of the unemployed mounted to unprecedented heights. Often the average was more than ten million; at tunes a peak was attained of sixteen million or more. Disaster to the breadwinner meant disaster to dependents. Accordingly the roll of the unemployed, itself formidable enough, was only a partial roll of the destitute or needy. The fact developed quickly that the states were unable to give the requisite relief. The problem had become national in area and dimensions. There was need of help from the nation if the people were not to starve. It is too late today for the argument to be heard with tolerance that in a crisis so extreme the use of the moneys of the nation to relieve the unemployed and their dependents is a use for any purpose narrower than the promotion of the general welfare. See United States v. Butler; and Helvering v. Davis decided herewith."

In a companion case to Steward, the case of Helvering v. Davis (1937), the Court sustained the old-age-pensions provisions of the Social Security Act (Titles II and VIII), which imposed taxes on employers and employees and authorized appropriations to pay old-age pensions to eligible previous employees in an exclusively federal program. Cardozo wrote:

"The purge of nationwide calamity that began in 1929 has taught us many lessons. Not the least is the solidarity of interests that may once have seemed to be divided. …Spreading from state to state, unemployment is an ill not particular but general, which may be checked, if Congress so determines, by the resources of the nation. If this can have been doubtful until now, our ruling today in the case of the Steward Machine Co., has set the doubt at rest.

"But the ill is all one or at least not greatly different whether men are thrown out of work because there is no longer work to do or because the disabilities of age make them incapable of doing it. Rescue becomes necessary irrespective of the cause. The hope behind this statute is to save men and women from the rigors of the poor house as well as from the haunting fear that such a lot awaits them when journey's end is near."

Within seven years, the idea of "the general welfare" implicit in such cases received an exuberant expansion. President Franklin D. Roosevelt's State of the Union message on January 11, 1944, first dealt with measures needed to continue the prosecution of the war with vigor. He closed with a vision of how the peace should be prosecuted:

"It is our duty now to begin to lay the plans and determine the strategy for the winning of a lasting peace and the establishing of an American standard of living higher than ever before known. We cannot be content, no matter how high that general standard of living may be, if some fraction of our people - whether it be one-third or one-fifth or one-tenth - is ill-fed, ill-clothed, ill-housed, and insecure.

"This Republic had its beginning, and grew to its present strength, under the protection of certain inalienable political rights - among them the right of free speech, free press, free worship, trial by jury, freedom from unreasonable searches and seizures. They were our rights to life and liberty. As our nation has grown in size and stature, however - as our industrial economy expanded - these political rights proved inadequate to assure us equality in the pursuit of happiness.

"We have come to a clear realization of the fact that true individual freedom cannot exist without economic security and independence. 'Necessitous men are not freemen.' People who are hungry and out of a job are the stuff of which dictatorships are made. In our day these economic truths have become accepted as self-evident. We have accepted, so to speak, a second Bill of Rights under which a new basis of security and prosperity can be established for all - regardless of station, race, or creed.

"Among these are:

"The right to a useful and remunerative job in the industries or shops or farms or mines of the nation;

"The right to earn enough to provide adequate food and clothing and recreation;

"The right of every farmer to raise and sell his products at a return which will give him and his family a decent living;

"The right of every businessman, large and small, to trade in an atmosphere of freedom from unfair competition and domination by monopolies at home or abroad;

"The right of every family to a decent home;

"The right to adequate medical care and the opportunity to achieve and enjoy good health;

"The right to adequate protection from the economic fears of old age, sickness, accident, and unemployment;

"The right to a good education.

"All of these rights spell security. And after this war is won, we must be prepared to move forward, in the implementation of these rights, to new goals of human happiness and well-being. America's own rightful place in the world depends in large part upon how fully these and similar rights have been carried into practice for our citizens. For unless there is security here at home there cannot be lasting peace in the world. ...

"I ask the Congress to explore the means for implementing this economic bill of rights - for it is definitely the responsibility of the Congress so to do."

That 1944 State of the Union message was delivered at some considerable temporal distance from the Declaration of Independence, from the Preamble's statement of the promotion of the general welfare as one of the objectives of government, and from the dispute between founding fathers about the power of Congress to promote the general welfare.

However, it is clear that Roosevelt's impassioned proclamation draws its inspiration, its terms of discourse, indeed its very diction, from Jefferson's Declaration of Independence. It is likewise clear that Roosevelt's boldness about what "it is definitely the responsibility of the Congress so to do" derives from the Depression Court's decisions that Hamilton was right about the plenary power that Congress has, under the Constitution, to promote the general welfare.

Roosevelt did not use the term "general welfare." He mentioned "new goals of human happiness and well-being." He clearly subsumed "the welfare power," to call it that by analogy to "the war power," under the Declaration of Independence's assertion that an overriding objective of government was to secure -- that is, make secure - the natural right to the pursuit of happiness.

He called his second Bill of Rights a bill of economic rights. The term "economic" is used broadly. It is worth remembering that Hamilton's interpretation of the Constitution, in his Report on Manufactures, did not occur in a context of an emergency concern for the desperate plight of unfortunate citizens suffering from a depression. Hamilton wanted Congress to promote the general welfare by assistance to the growth of businesses. All governmental actions in aid of "the economy," to fight inflation or recession, would be as much exercises of the welfare power as measures of assistance to the seriously indigent, the debilitated old, the helplessly sick or disabled, and those whom we have the habit of speaking of as "on welfare." Roosevelt's very broad use of the term "economic" includes such things as the right to a decent home, the right to adequate medical care, the right to sufficient schooling, as well as the rights of every farmer and every businessman. Used thus broadly, the term encompasses all the external conditions which can be judged indispensable to lead a decent human life.

Roosevelt explicitly declared that the promotion of the general economic welfare and the implementation of specifically economic rights were necessary if "true individual freedom" is to thrive. More than that, measures are indispensable if the pursuit of happiness by every human being is to be more than an ineffectual right. The participation by every human being in the general economic welfare and the recognition of his basic economic rights provide him with the enabling means or facilitating conditions without which he must inevitably be impeded if not totally frustrated in his effort to pursue happiness - to make a good life for himself.

A government cannot guarantee to all the attainment of happiness; it cannot even provide them all the conditions that they need for a modicum of success in the effort to live humanly well, such as moral virtue and the gifts of good fortune; but the one thing it can do, and do effectively, is to provide human beings with the external conditions they need in order to lead decent human lives - economic goods or benefits of all sorts in addition to civil peace, political liberty, and a just social order.

The whole of Roosevelt's State of the Union dress in 1944 charges Congress with the task of d distributive justice. To assure to all "equality in the pursuit of happiness" is a work of justice. All human beings, equally in possession of the inherent human right to pursue happiness, can rightfully expect from the political society of which they are members and from the government of which they are together constituents, proportionately equitable support in their exercise of that right. Justice requires government to promote the general welfare, understood as an equitable participation by all in the economic or other external goods which are judged indispensable to the pursuit of happiness. All human beings should have an equal opportunity to fare well in that pursuit.

Closing his lectures (Constitutionalism: Ancient and Modern, Cornell University Press), Charles H. McIlwain wrote: "The two fundamental correlative elements of constitutionalism for which all lovers of liberty must yet fight are the legal limits to arbitrary power and a complete political responsibility of government to the governed."

That sentence, written in 1940, could have been uttered in an opening address to the Constitutional Convention in Philadelphia in 1787. Americans had proved themselves "lovers of liberty" in their resistance to arbitrary British power and in their war for independence. They were to consummate their revolution by "ordaining and establishing a Constitution for the United States of America." On the Fourth of July, 1788, James Wilson delivered an oration, at the procession formed at Philadelphia, to celebrate the adoption of the Constitution of the United States. In his proem (this and later quotations are taken from The Works of James Wilson, Harvard University Press), Wilson said:

"A people free and enlightened, establishing and ratifying a system of government, which they have previously considered, examined, and approved! This is the spectacle, which we are assembled to celebrate; and it is the most dignified one that has yet appeared on our globe. . . .What is the object exhibited to our contemplation? A whole people exercising its first and greatest power-performing an act of sovereignty, original and unlimited!"

In an only slightly less exclamatory way, Madison was to write in 1792:

"In Europe, charters of liberty have been granted by power. America has set the example and France has followed it, of charters of power granted by liberty. This revolution in the practice of the world may, with an honest praise, be pronounced the most triumphant epoch of its history and the most consoling presage of its happiness."

A free and enlighted people performing an act of sovereignty, original and unlimited! A charter of power granted by liberty!

These exclamations were after the fact. In the actual work of ordaining a new Constitution, the framers were anything but naive about arbitrary power. Indeed, when they had been British subjects, the Americans were fervently proud of their British liberties. They had by no means forgotten the victories over arbitrary power by which the liberties of Englishmen had been secured. They knew and prized the documents that recorded those victories, documents comprised by what the elder Pitt called "the Bible of the English Constitution" - Magna Charta, the Petition of Right, and the Bill of Rights after the Glorious Revolution of 1688.

Indeed, it was precisely because they remembered those documents, as well as recent royal and parliamentary acts of arbitrary power, that the framers proceeded, as "lovers of liberty," to place legal limits on the charter of power they were about to grant. In so doing, they borrowed heavily, often in direct wording from "the Bible of the English Constitution."

In Federalist #57, Madison stated the framers' concern for the first element of constitutionalism:

"If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions."

In the context of Federalist #51, Madison was pondering the task of laying "a due foundation for that separate and distinct exercise of the different powers of government, which to a certain extent is admitted on all hands to be essential to the preservation of liberty."

However, in addition to the broad ideas about the precautions that might be effected by the separation of powers and by checks and balances, the Constitution of 1787 contains a composite of many mutually reinforcing guarantees of individual rights, and of limitations on federal and state governments. The Constitution in its main body forbids suspension of the writ of habeas corpus except in cases of rebellion or invasion; prohibits state or federal bills of attainder and ex post facto laws; requires that all crimes against the United States be tried by jury in the state where committed; limits the definition, trial, and punishment of treason; prohibits titles of nobility and religious tests for officeholding; guarantees a republican form of government in every state; and assures each citizen of the privileges and immunities of the citizens of the several states.

Popular dissatisfaction with the inadequacy of the guarantees in the main body of the Constitution, which was repeatedly expressed in the state ratifying conventions, led to firm demands and consequent promises, which eventuated in the first ten amendments. These amendments have always been regarded as a Bill of Rights. That term, however, should be extended to include not only the limitations in the main body of the Constitution, but also those in later amendments - those that abolish slavery; declare all persons born or naturalized in the United States and subject to its jurisdiction as citizens thereof; forbid the states to abridge the privileges or immunities of citizens of the United States, to deprive any person of life, liberty, or property without due process of law, or to deny any person the equal protection of the laws; prohibit the denial or abridgment of voting rights because of race, sex, or failure to pay poll taxes.

By such an extended Bill of Rights, taken together with the results of the separation of powers and of checks and balances, Americans placed constitutional limits on arbitrary power. These constitutional limitations intended to provide basic security for one freedom, fundamental throughout the revolutionary era - freedom from arbitrary power. The revolutionary Americans had freed themselves from British arbitrary power. Their posterity should not be exposed to arbitrary power exercised by the government the founding fathers were here ordaining.

The second of McIlwain's "two fundamental correlative elements of constitutionalism" is "a complete political responsibility of government to the governed." Constitutional arrangements to satisfy such an ideal would make the new nation a republic - self-ruling people.

Madison's definition of a "republic" in Federal #10 was succinct enough: "A republic, by which I mean a government in which the scheme of representation takes place." Another, fuller, and famous passage, in Federalist #f39, connects the term "republic" with "self-government": "The first question that offers itself is, whether the general form and aspect of the government be strictly republican. It is evident that no other form would be reconcilable with the genius of the people of America; with the fundamental principles of the Revolution; or with that honorable determination which animates every votary of freedom, to rest all our political experiments on the capacity of mankind for self-government." The people of a republic, with a government in which some systern of representation is operative, is a self-governing people.

Such a high claim puts a heavy burden on what has certainly come to be considered an elusive a complicated idea - the idea of representation. Indeed, the revolutionary period had its beginning in dispute revolving around that idea. Bernard Bailyn writes: "The question of representation was the first serious intellectual problem to come between England and the colonies, and while it was not the most important issue involved in the Anglo-American controversy (the whole matter of taxation and representation was 'a mere incident,' McIlwain has observed, in a much more basic constitutional struggle), it received the earliest and most exhaustive examination and underwent a most revealing transformation." The history of that transformation is complicated, but direction is clear.

Edmund Burke's idea of "virtual representation (by unelected representatives) was ridiculed by Daniel Dulany in a powerful pamphlet, Considerations on the Propriety of Imposing Taxes in the British Colonies, for the Purpose of Raising a Revenue, by Act of Parliament. Representation had stem from electoral power in the citizens, and that would extend to measures for choosing the first elected Chief Executive the world had ever seen.

More important, the leaders in the early revolutionary period rejected Burke's theory of representation, which he had expressed in words now famous: "Parliament is not a congress of ambassadors from different and hostile interests; which interests ea must maintain, as an agent and advocate, against other agents and advocates; but Parliament is a deliberative assembly of one nation, with one interest, that of the whole; where, not local purposes, not local prejudices ought to guide, but the general good, resulting from the general reason of the whole." The contrary doctrine, to which the Americans appealed, was precisely one that declared "representatives" to be "agents and advocates," to whom "instructions" could be given. In 1774, James Wilson, America's leading jurist, wrote, "The interest of the representatives is the same with that of their constituents," and again, "representatives are reminded [by electoral acts] whose creatures they are; and to whom they are accountable for the use of that power, which is delegated unto them." Section 2 of the 1776 Virginia Declaration of Rights read: "That all power is vested in, and consequently derived from, the people; that magistrates are their trustees and servants and at all times amenable [accountable] to them." The records of the Convention of 1787 show James Wilson as having said: "The Legislature ought to be the most exact transcript of the whole Society. Representation is made necessary only because it is impossible for the people to act collectively." On a later occasion, he also said that: "The Doctrine of Representation is this - first, the representative ought to speak the Language of his Constituents, and secondly, that his language or vote should have the same 'influence as though the Constituents gave it." This tendency is summed up in a letter written by Thomas Jefferson in 1816, altering Madison's definition of a republic: "Were I to assign to this term a precise and definite idea, I would say that, purely and simply, [the term 'republic'] means a government by its citizens in mass, acting directly and personally according to rules established by the majority; and that every other government is more or less republican, in proportion as it has in its composition more or less of this ingredient of the direct action of the citizens."

The conviction was so strong about the doctrine of instructions - the doctrine that at any time a clear expression of the will of the majority of constituents is binding on the action of their representative - that some of the new state constitutions, after independence, provided for it. However, in the first Congress, a proposal to include the right to instruct representatives in the Bill of Rights was voted down by a large majority. Questions had begun to arise about what a sound theory of representation might entail.

The last word here, on representation and elections, can come from James Wilson, lecturing on law in the College of Philadelphia after his term as member of the first Supreme Court. His words steer clear of hard questions about the idea of representation and emphasize the need for more experience with elections and with the representative bodies they select:

"Of the science of just and equal government, the progress, as we have formerly seen, has been small and slow. Peculiarly small and slow has it been, in the discovery and improvement of the interesting doctrines of election and representation. If, with regard to other subjects, government may be said, as it has been said, to be still in its infancy; we may, with regard to this subject, consider it as only in its childhood. And yet this is the subject, which must form the basis of every government, that is, at once, efficient, respectable, and free.

"The pyramid of government - and a republican government may well receive that beautiful and solid form - should be raised to a dignified altitude: but its foundations must, of consequence, be broad, and strong, and deep. The authority, the interests, and the affections of the people at large are the only foundation, on which a superstructure, proposed to be at once durable and magnificent, can be rationally erected.

"Representation is the chain of communication between the people and those, to whom they have committed the exercise of the powers of government. If the materials, which form this chain, are sound and strong, it is unnecessary to be solicitous about the very high degree to which they are polished. But in order to impart to them the true republican luster, I know no means more effectual than to invite and admit the freemen to the right of suffrage, and to enhance, as much as possible, the value of that right. Its value cannot, in truth, be enhanced too highly. It is a right of the greatest import, and of the most improving efficacy. It is a right to choose those, who shall be entrusted with the authority and with the confidence of the people: and who may employ that authority and that confidence for the noblest interests of the commonwealth, without the apprehension of disappointment or control.

"This surely must have a powerful tendency to open, to enlighten, to enlarge, and to exalt the mind. I cannot, with sufficient energy, express my own conceptions of the value and the dignity of this right. In real majesty, an independent and unbiased elector stands superior to princes, addressed by the proudest titles, attended by the most magnificent retinues, and decorated with the most splendid regalia. Their sovereignty is only derivative, like the pale light of the moon: his is original, like the beaming splendor of the sun.

"The benign influences, flowing from the possession and exercise of this right, deserve to be clearly and fully pointed out. I wish it was in my power to do complete justice to the important subject. Hitherto those benign influences have been little understood; they have been less valued; they have been still less experienced. This part of the knowledge and practice of government is yet, as has been observed, in its childhood, Let us, however, nurse and nourish it. In due time, it will repay our care and our labor; for, in due time, it will grow to the strength and stature of a full and perfect man."

One further point remains to be made - the point that the "two fundamental elements of constitutionalism" are, indeed, "correlative." A whole range of civil liberties, involving legal limitations on the powers of government, are precisely the liberties by which the people are assured security for their development and exercise of electoral judgment, and for holding their government at all times accountable.

The point is amply clear insofar as it touches the political meaning of all the First Amendment rights. In addition to those rights are the civil liberties indispensable to safeguarding the people's position as the standing principal ruler, such as protection from arbitrary arrest and imprisonment, from bills of attainder often used in the past to silence political opposition, from unreasonable and arbitrary searches and seizures.

There can be no doubt that the main preoccupation during the revolutionary and the Constitution-making periods was with political liberty - in its two dimensions, one involving a freedom from arbitrary power, the other involving freedoms for the task of keeping government accountable for its performance within the powers assigned to it.

The general criterion for judgments of governmental performance infra vires involved another liberty, which can appropriately be designated personal liberty. Indeed, personal liberty was more fundamental than the two aforementioned political liberties, since they, in effect, served to protect it. In significant measure, personal liberty was grounded in law, in the sense of being "secured" by law and government.

How would such personal liberty have been defined by the American founding leaders? In the context of the Declaration of Independence, personal liberty would consist in the capacity to exercise effectively the natural right equally possessed by all men to the pursuit of happiness. Was government necessary for conferring such liberty on citizens and safeguarding it? The answer was firmly in the affirmative. Are not laws antithetical to such liberty, so that the more law, the less liberty? The answer was firmly in the negative.

All the leaders of the founding generation were well acquainted with John Locke's Second Treatise on Civil Government. There is no evidence anywhere that there was any fundamental disagreement with his "resolution" of age-old questions about the relation between law and liberty.

In Chapter IV of his treatise, a chapter interestingly enough entitled "Of Slavery," Locke wrote as follows:

"The natural liberty of man is to be free from any superior power on earth, and not to be under the will or legislative authority of man, but to have only the law of Nature for his rule. The liberty of man in society is to be under no other legislative power but that established by consent in the commonwealth, nor under the dominion of any will, or restraint of any law, but what that legislative shall enact according to the trust put in it. Freedom, then, is not what Sir Robert Filmer tells us: 'A liberty for every one to do what he lists, to live as he pleases, and not to be tied by any laws'; but freedom of men under government is to have a standing rule to live by, common to every one of that society, and made by the legislative power erected in it. A liberty to follow my own will in all things where that rule prescribes not, not to be subject to the inconstant, uncertain, unknown, arbitrary will of another man, as freedom of nature is to be under no other restraint but the law of Nature.

"This freedom from absolute, arbitrary power is so necessary to, and closely joined with, a man's preservation, that he cannot part with it but by what forfeits his preservation and life together."

The same points are somewhat more amply stated in Locke's Chapter VI:

"For law, in its true notion, is not so much the limitation as the direction of a free and intelligent agent to his proper interest, and prescribes no farther than is for the general good of those under that law. Could they be happier without it, the law, as a useless thing, would of itself vanish; and that ill deserves the name of confinement which hedges us in only from bogs and precipices. So that however it may be mistaken, the end of law is not to abolish or restrain, moon: his is original, like the beaming splendor of the sun.

"The benign influences, flowing from the possession and exercise of this right, deserve to be clearly and fully pointed out. I wish it was in my power to do complete justice to the important subject. Hitherto those benign influences have been little understood; they have been less valued; they have been still less experienced. This part of the knowledge and practice of government is yet, as has been observed, in its childhood. Let us, however, nurse and nourish it. In due time, it will repay our care and our labor; for, in due time, it will grow to the strength and stature of a full and perfect man."

One further point remains to be made-the point that the "two fundamental elements of constitutionalism" are, indeed, "correlative." A whole range of civil liberties, involving legal limitations on the powers of government, are precisely the liberties by which the people are assured security for their development and exercise of electoral judgment, and for holding their government at all times accountable.

The point is amply clear insofar as it touches the political meaning of all the First Amendment rights. In addition to those rights are the civil liberties indispensable to safeguarding the people's position as the standing principal ruler, such as protection from arbitrary arrest and imprisonment, from bills of attainder often used in the past to silence political opposition, from unreasonable and arbitrary searches and seizures.

There can be no doubt that the main preoccupation during the revolutionary and the Constitution-making periods was with political liberty - in its two dimensions, one involving a freedom from arbitrary power, the other involving freedoms for the task of keeping government accountable for its performance within the powers assigned to it.

The general criterion for judgments of governmental performance infra vires involved another liberty, which can appropriately be designated personal liberty. Indeed, personal liberty was more fundamental than the two aforementioned political liberties, since they, in effect, served to protect it. In significant measure, personal liberty was grounded in law, in the sense of being "secured" by law and government.

How would such personal liberty have been defined by the American founding leaders? In the context of the Declaration of Independence, personal liberty would consist in the capacity to exercise effectively the natural right equally possessed by all men to the pursuit of happiness. Was government necessary for conferring such liberty on citizens am guarding it? The answer was firmly in the affirmative. Are not laws antithetical to such liberty, so that the more law, the less liberty? The answer was firmly in the negative.

All the leaders of the founding generation well acquainted with John Locke's Second Treatise on Civil Government. There is no evidence any that there was any fundamental disagreement with his "resolution" of age-old questions about the relation between law and liberty.

In Chapter IV of his treatise, a chapter interestingly enough entitled "Of Slavery," Locke wrote as follows:

"The natural liberty of man is to be free fro; superior power on earth, and not to be under the will or legislative authority of man, but to have only the law of Nature for his rule. The liberty of man in society is to be under no other legislative power but that established by consent in the commonwealth, nor under the dominion of any will, or restraint of any law, but what that legislative shall enact according to the trust put in it. Freedom, then, is not what Sir Robert Filmer tells us: 'A liberty for every one to do what he lists, to live as he pleases, and not to be tied by any laws'; but freedom of men under government is to have a standing rule to live by, common to every one of that society, and made by the legislative power erected in it. A liberty to follow my own will in all things where that rule prescribes not, not to be subject to the inconstant, uncertain, unknown, arbitrary will of another man, as freedom of nature is to be under no other restraint but the law of Nature.

"This freedom from absolute, arbitrary power is so necessary to, and closely joined with, a man's preservation, that he cannot part with it but by what forfeits his preservation and life together."

The same points are somewhat more amply stated in Locke's Chapter VI:

"For law, in its true notion, is not so much the limitation as the direction of a free and intelligent agent to his proper interest, and prescribes no farther than is for the general good of those under that law. Could they be happier without it, the law, as a useless thing, would of itself vanish; and that ill deserves the name of confinement which hedges us in from bogs and precipices. So that however it may be mistaken, the end of law is not to abolish or restrain but to preserve and enlarge freedom. For in all the states of created beings, capable of laws, where there is no law there is no freedom. For liberty is to be free from restraint and violence from others, which cannot be where there is no law; and is not, as we are told, 'a liberty for every man to do what he lists.' For who could be free, when every other man's humor might domineer over him? But a liberty to dispose and order freely as he lists his person, actions, possessions, and his whole property within the allowance of those laws under which he is, and therein not to be subject to the arbitrary will of another, but freely follow his own."

It is important, perhaps, to look once more at that part of the first text quoted from Locke where, after speaking of freedom under law, he refers to a sphere of freedom in which every one has "a liberty to follow [his] own will in all things where that rule prescribes not." Whatever may have been Locke's views concerning the desirable scope of that sphere in which laws do not regulate human conduct and individuals are free to do as they please, it is worth recording that there is no body of texts in the founding literature which urges that the sphere of unregulated conduct should be very large, or as large as possible. That literature, in other words, does not espouse the position later to be called "minimalism" - the view that that government governs best which governs least, because it thereby enlarges the sphere of personal liberty. It was left open to future history to determine how much legal regulation is needed to secure, indeed to preserve and enlarge, personal liberty.

For final confirmation of the American consensus on Locke's theory of the relation of law and liberty, a text from James Wilson serves best. It not only confirms Locke's doctrine, but also argues, by implication at least, that that government governs best which governs, not least or most, but most justly; and that human beings have as much personal liberty as they deserve, or can use justly, when their conduct is regulated by just laws. The passage from James Wilson reads as follows:

"In a former part of these lectures, I had occasion to describe what natural liberty is: let us recur to the description, which was then given. 'Nature has implanted in man the desire of his own happiness; she has inspired him with many tender affections towards others, especially in the near relations of life; she has endowed him with intellectual and with active powers; she has furnished him with a natural impulse to exercise his powers for his own happiness, and the happiness of those for whom he entertains such tender affections. If all this be true, the undeniable consequence is, that he has a right to exert those powers for the accomplishment of those purposes, in such manner, and upon such objects, as his inclination a judgment shall direct; provided he does no injury others; and provided some public interests do r demand his labors. This right is natural liberty.'

"If this description of national liberty is a just one, it will teach us, that selfishness and injury are as little countenanced by the law of nature as by the law of man. Positive penalties, indeed, may, by human laws, be annexed to both. But these penalties are a restraint only upon injustice and overweening self-love, not upon the exercise of natural liberty.

"In a state of natural liberty, every one is allowed to act according to his own inclination, provided he transgress not those limits, which are assigned to him by the law of nature: in a state of civil liberty, he is allowed to act according to his inclination, provided he transgress not those limits, which are assigned to him by the municipal law. True it is, that, by the municipal law, some things may be prohibited, which are not prohibited by the law of nature: but equal true it is, that, under a government which is wise and good, every citizen will gain more liberty than he can lose by these prohibitions. He will gain more by the limitation of other men's freedom, than he can lose by the diminution of his own. He will gain more by the enlarged and undisturbed exercise of his natural liberty in innumerable instances, than he can lose by the restriction of it in a few.

"Upon the whole, therefore, man's natural liberty, instead of being abridged, may be increased and secured in a government, which is good and wise. As it is with regard to his natural liberty, so it is with regard to his other natural rights."

The title page of the first published edition of James Wilson's Works contained a motto from Cicero: "Lex fundamentum est libertatis, qua fruimu, Legum omnes servi sumus, ut liberi esse possimus. "Law is the foundation of the liberty we enjoy. We are all servants of the laws in order that we can be free."

NOTES

1. Students of the Western constitutionalist tradition can construe this proposition from the farmers of Sutton, as almost a translation of a maxim of medieval constitutionalism. In his Lectures on Law, delivered at the College of Philadelphia in 1790-1791, James Wilson, America's leading jurist, adverted to this medieval maxim: "Let us next pay the respect, which is due to the celebrated sentiment of the English Justinian, Edward the First. Lex justissima, ut quod omnes tangit, ab omnibus approbfiur. 'It is a most just law, that what affects all should be approved by all.' This golden rule is, with great propriety, inserted in his summons to this parliament." The farmers of Sutton urged an application of this maxim in a context where the people, rather than a king, was sovereign.