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The Constitution of the United States as Modified by the Civil War
Published online by Cambridge University Press: 04 October 2013
Extract
The Constitution of the United States is one of the greatest monuments of human history. It was not a sudden creation, according to Mr. Gladstone's hasty generalization; for our scholars agree that it was a growth essentially. It is perhaps the greatest achievement recorded of compromise, which is the genius of political development. Cherishing theories of Aristotle and Montesquieu, nourished by the Common law and English political experience, strengthened by the steady progress of the colonies, the statesmen assembled in the convention of 1787 embodied the knowledge of their time. The serene Washington, the practised and facile Franklin, the far-seeing constructive Hamilton, with Madison, Wilson, Morris, Sherman and their fellows filing in; these makers of the constitution brought the largest capacity to the conformation of a written instrument, which embodied the widest experience in the art of government.
The pregnant phrases of the Preamble—forged out by Hamilton and Madison—though they soon became important guides to the meaning of the whole instrument, do not appear to have attracted much attention or excited discussion.
It may be instructive to consider the ideas of J. Randolph Tucker, expressed after the facts of the Civil War had illustrated the genius and force of the original Constitution. Liberty if the “gift of God!” and the body-politic is “man's trustee, not his master.” As the body-politic rests on rightful sovereignty, the de facto institution must be taken to be the sovereign power. His great authority, Bluntschli, says “each man is at the same time member of the sovereign and subject to the sovereign.”
- Type
- Papers and Discussions
- Information
- Proceedings of the American Political Science Association , Volume 3: Third Annual Meeting , December 1907 , pp. 67 - 79
- Copyright
- Copyright © American Political Science Association 1907
References
1 Thorpe, , Constitutional History U. S., v. 3, p. 467Google Scholar.
2 Tucker, , Constitution U. S., vol. 1, p. 14Google Scholar.
3 Ibid., p. 57.
4 Ibid., p. 62.
5 Ibid., p. 67. And on the limitations of governmental power he cites two great authorities. “C. J. Chase adds to Marshall with great force. And if the property of an individual cannot be transferred to the public, how much less to another individual.” Ibid., p. 77.
6 Ibid., p. 339.
7 Tucker, vol. i, p. 318; Thorpe, vol. i, 305.
8 Ibid., p. 376.
9 Details of the Convention are taken broadcast from Thorpe's first volume.
10 History American People, vol. iv, p. 201Google Scholar.
11 Ibid., p. 190, and Burgess, Civil War and Constitution, vol. i, p. 75.
12 American Constitutional System, p. 12.
13 American People, vol. iv, p. 208Google Scholar.
14 Burgess, , Political Science and Constitutional Law, vol. i, p. 108Google Scholar.
15 Burgess, , Civil War and Constitution, 1: 228Google Scholar.
16 I am indebted to W. E. Foster for suggestion in this matter. Providence Public Library has a large collection of original pamphlets, giving opinions of Binney, Curtis, and many others on these disputed points bearing on constitutional development. Horace Binney contended (Privilege of the Writ of Habeas Corpus, Philadelphia, 1862, p. 52Google Scholar): “The Constitution intended, that for the defence of Dhe nation against rebellion and invasion, the power should always be open (i. e., of suspension of writ) in either of these events, to be used by that department, which is the most competent in the same events to say what the public safety requires in this behalf. The President being the properest and safest depository of the power, and being the only power which can exercise it under real and effective responsibilities to the people, it is both constitutional and safe to argue that the Constitution has placed it with him.”
17 Thorpe, 3: 404.
18 Wilson, 5: 58.
19 Tucker, 2: 848.
20 Baldwin, , Two Centuries American Law, p. 36Google Scholar.
21 Willoughby, p. 241.
22 Thorpe, 3: 522.
23 Tucker, 1: 379.
24 Police Power, p. 65.
25 Thorpe, 3: 521.
26 Judson Interstate Commerce, p. 4.
27 Ibid., p. 50.
28 Ibid., p. 143.
29 Baldwin, Simeon E., Yale Review, 15: 255Google Scholar.
30 Judson, , Interstate Commerce, p. 127Google Scholar.
31 Ibid., p. 4.
32 Noyes, , American Railroad Rates, p. 3Google Scholar.
33 Ibid., p. 259.
34 American Review of Reviews, July, 1906, p. 70Google ScholarPubMed.
35 Burgess, , Political Science and Constitutional Law, 1: 185Google Scholar.
36 Two Centuries American Law, p. 27.