Gambar halaman

“The Colonies saw the Stamp Act of 1765 as the final straw, tyranny from he outside. If England could do this without their consent, she could, and vould, do more. The Colonies yelled so loudly that the Stamp Act was reealed. But in the protesting, they yelled about such things as liberty, as one 'atrick Henry did in Virginia when he shouted the bold words “give me liberty ir give me death,” which rang in the hearts and minds of freedom-seeking men he length and breadth of the Colonies.

*This wasn't theory of government. The pioneers had liberty, had tasted it, lad lived it, and they intended to keep it.

"Lord North, English Prime Minister, pompously announced that 'America nust fear you before she can love you.' Let's show the Colonies that we can ax them by putting a tax on tea. It won't be much, but it will be something, ind it will establish the principle that we can tax them.

“So the two principles met head on. The English principle that she'd show he colonies that they could be taxed, even without the representation they houted about. The colonist's principle that if we let them do even this, we an expect more, so let's not pay the tax, even on tea. America had broken iway from England, both politically and spiritually.

"The tea came, with the tax. And a band of men from Boston met it in the iarbor on December 16, 1773, and dumped it overboard. Little did they suspect he historical importance of what they were doing.

"The English felt that they couldn't back down; the colonists knew they wouldn't. The English closed the port of Boston, and once again annulled the i-harter of those independent, rabblerousers from Massachusetts.

*The colonists responded by calling a Continental Congress in Philadelphia the following September 1774. And on the next April 19, 1775, in Lexington, Mass., a small farm town, British regulars from Boston came to confiscate the monitions of farmer Minute Men.

** 'Disperse, you rebels,' shouted the British captain.

“The American captain responded to his men: 'Don't fire unless fired upon, but if they want a war, let it begin here.' Shots rang out. The Revolution began.

“It was a war over what kind of government the Colonies were to have; over what kind of freedom men should have.

"The call went out for the 13 Colonies to form State constitutions in keeping with the move for freedom and independent government. They did. The first svas New Hampshire on January 5, 1776. It provided for two houses in the State legislature—the upper house to consist of 1 person from each of 12 counties, It was a senate based on area apportionment. One house was to be a check on the other.

"Next was the South Carolina constitution on March 26, 1776-two houses in its State legislature. The chief executive was called 'President and Commander in Chief'--the first that this had appeared.

"On June 7, Richard Henry Lee, of Virginia, rose in the Continental Congress and moved that these United Colonies are and of right ought to be free and independent States.'

Meantime, on June 29, 1776, Virgina completed her constitution. Two houses ; one a senate which represented districts larger than counties. (This was the first time the word 'Senate' was actually used to describe the upper housebut 11 years later at the time of the Constitutional Convention all but New Jersey and Delaware called it the senate.) Laws must pass both houses. The Virzinia bill of rights was to make up the opening paragraph of the Declaration of Independence 5 days later. And the Virginia constitution made it clear that lesislative, executive, and judiciary should be separate and no person should prer exercise two of the functions. They had seen the European despotism where one man was legislator, executive, and the judiciary all in one. And they had seen the oppression in the colonies when these three functions of government were not clearly separated, one from another.

"New York was next with a constitution on July 3, 1776—two houses; the lower house to originate all money bills, a principle which was to be copied 11 years later by the National Constitution.

“On July 4th the Declaration of Independence was signed, announcing to the world the birth of a new nation. It set down the principle that governments Gerive their powers from the consent of the governed. Governments are in*tituted among men,' it said, 'deriving their just powers from the consent of the governed * * prudence, indeed, will dictate that governments long established should not be changed for light and transient causes.'

"The Delaware constitution came then on September 21, providing for the first method of amending a State constitution, to be done by the assembly.

"Pennsylvania came next on September 28, providing for amendments to the constitution to be made by a vote of the people. Constitutions, the foundations of free governments, were to be made and changed by the people.

"Pennsylvania provided for only one house in the State legislature, but it had more than enough of the recklessness of one body, unchecked, and set up (4 houses, one to be a check on the other.

"Maryland was next on November 11, 1776. Her constitution carried an advanced bill of rights, copied later, and in many instances word for word, by the Bill of Rights of the National Constitution : Freedom of speech, trial by jars right to pettition, right of search, quartering troops. And senators were to se chosen by counties.

"Then came the constitutions of North Carolina and Georgia ; then New York og April 20, 1777, providing for a Governor's veto over legislative acts, but what could be overruled by two-thirds of the house and senate. The branches of go ernment not only would be divided, one would be a check on the other. This is be copied by the National Constitution 10 years later. They were well awan of the King's vetoes, where he had as many as 5 years to negate legislative arts, and then could do it absolutely.

“Next came the constitutions of Vermont, South Carolina, Massachusetts. Sex Hampshire with a second constitution in 1784, Vermont with a second constituu-a in 1786.

"These constitutions were not copied from a foreign source; they were not the result of theories of government; they were the products of legislative practit. following nearly 200 years of colonial experience.

"In the early colonial governments, the legislature checked on the Governor; but in 1776 the legislative lawmaking power became the foundation of representa tive government.

“And fundamental was an upper house, a senate, representing geographic d.tricts within the States—two houses to provide a check again each other.

“(Anyone can check the development of the senate body. It started in Virginia in 1611, followed through the Massachusetts charter in 1629; the Fundancia: Orders of Connecticut in 1638; in the Connecticut charter of 1662; in the Rhode Island charter of 1663; in the Concessions of East Jersey in 1665; in Lowke's Carolina constitution of 1669; in the 1674 amendments to the Concessions East Jersey ; in the commission for New Hampshire in 1680; in the Pennsylral Frame of 1696 ; in the Pennsylvania charter of 1701 ; in the Georgia charter of 1732; in the New Hampshire constitution of 1776; in the South Carolina wir stitution of 1776 ; Virginia constitution of 1776 ; New Jersey constitution of 1976; Delaware constitution of 1776; Maryland constitution, 1776 ; North Carolina con stitution, 1776; Georgia constitution, 1777; New York constitution, 1777; Mas sachusetts constitution, 1778; South Carolina constitution, 1778; New Hampshire constitution, 1778; Massachusetts constitution of 1780; New Hampshire cute stitution of 1784 ; Randolph's plan for a national constitution in 1787; Pinckness plan of 1787; and the National Constitution, 1787.)

"While the State constitution making was going on, a revolution was raging It was 7 years from the shots at Lexington until Cornwallis surrendered at fork. town, Va., on October 19, 1781.

“The new Nation staggered under debt. Its credit nil; its money not worth a continental.

"There followed 6 years of Confederation of the 13 States: Loose govert ment, bickering, State rivalries, import duties against each other, reprisals åld retaliation, jealousies, riots in Pennsylvania and in New Hampshire. The gos. ernment grew weaker and by 1784 four States were absent from the Continenta. Congress; three withdrew in disgust; and the rest went home.

“Then Noah Webster suggested that the Government act directly on the people instead primarily on the States, and that the Government de modeled after the States.

"The need for action was brought to a head with Shay's Rebellion in western Massachusetts in January, 1787. A call went out for a national Constitutions! Convention to try to regulate commerce between the States and iron out tbe governmental problems of the new Nation. They came thinking that you Webster's idea had much merit, though he was never to get real credit for it.

"Fifty-five came to the Constitutional Convention in the Nation's largest city of 30.000 inhabitants, Philadelphia, on May 25, 1787. They included Washingus Franklin, Madison, Hamilton, Randolph, Mason and Dickinson,

"The average age was 42. They were men tried by war and revolution. More than half, 29, were college graduates; 10 from Princeton. Fifteen owned slaves; 4 were under 30; Franklin, 81, the 10th son of a Boston soapmaker and who had left school at 10, but perhaps the most learned of the group, was so feeble that he asked others to read his notes to the Convention. George Washington had to borrow $500 to make the trip.

"Jefferson was in France on a diplomatic mission; fiery Patriot Patrick Henry smelled a rat' and refused to come.

**For 4 hot months and 1,810 speeches the Convention made its history.

"Through the ('onvention ran the conviction that the executive, legislative, and judiciary should by all means be independent. And there was a strong feeling against giving the Executive too much power.

**Franklin reminded them that in a republic the people are the rulers, the officers are the servants,

*The ('onvention sat continuously from May 25 to July 27 without a recess. The proceedings were secret, lest the people become alarmed about the many propositions they considered. But fortunately, a few of the delegates kept excellent notes, Madison most of all. The official transcript of the secretary were minch less complete and revealing.

**The delegates worked hard; debated; heard and voted down countless proposals ; gave tentative approval to several.

One of the arguments was over representation in the upper House, or Senate. It was Franklin, from one of the largest States, with 400,00 population-10 times that of Delaware-who proposed on the convention floor “that the legislators of the several States shall choose and send an equal number of delegates who are to compose the second branch of the General Legislature."

“On July 27 the ('onvention adjourned for 10 days while a committee of five could work out compromises and clear up wording. While Rutledge, of South (Carolina, Gorham, of Massachusetts, Ellsworth, of Connecticut, Wilson, of Pennxylvania, and Randolph, of Virginia, labored over the 22 resolutions passed up to that time, Washington journeyed out 25 miles to Valley Forge to fish for trout. In his dairy he scarcely mentioned how Valley Forge looked. 10 days after his encampment there, but he wrote at length about talking with some farmers along the way about methods of raising buckwheat.

"In those 10 days the committee of detail made a basic constitution out of the summer's work which was completed and polished by a committee on style, and passed and signed on September 17, 1787. But was it that-only a summer's work by an inspired group of men? Gladstone wrote: "The American Constitution is tbe most wonderful work ever struck off at a given time by the brain and purpose of man.” But it was more. It was the product of an evolutionary process that stretched across nearly 200 years of living experience on American soil. Very few things and those minor--apeared in this Constitution that hadn't already appeared in 1 or more of the 13 State constitutions.

“It wasn't a governmeut of theory. It wasn't exactly what Franklin wanted; nor Hamilton ; nor Randolph ; nor Jefferson; nor Gouverneur Morris, who spoke more often than any other of the 55 men; nor a constitution of George Washington, the Convention chairman, who made only one speech from the Convention floor. But it was the best of these men and their experiences.

"It was a government of practice. We had actually had more experience at the time in constitutionmaking than any other people in the world. We had had as many years experience in making governments on American soil prior to 1787 as we have had since.

“The Constitution arose from the evolving practice in 29 colonial charters and constitutions, 17 revolutionary constitutions, and 23 plans of union--in all, 69 different forms of government in actual or contemplated operation.

"That is why the framers of the Constitution constructed a form of government menalled in its genius, before or since.

-They made a government with a division of powers. The legislative, executive, "pd judiciary wore to be distinctly separate from each other. They were to be a chek on each other to prevent a concentration of power.

"C'ongress would make all the laws. All money bills were to originate in the lower House, whose delegates were to represent equal numbers of people. The Senate would 'advise and consent' with the Executive on a varietr of things; its Members to represent the historical, social, economic, and geographical entitiesthe States, two Senators to each one. Both Houses must pass on all lawsone loping a check upon the other.

44 124


“The Executive would carry out and apply all laws. He must sign all colgressionally approved bills within 10 days or they would become law anyway; but he could veto legislative acts. A check on the legislature. But the Congress could pass laws over his veto by a two-thirds majority vote. A check on the Executive.

“However, the Supreme Court was to serve as a brake on hasty legislation. If the Court declared a law unconstitutional, only the people could do anything about that. The people could, however, start a slow process of constitution! amendment to override Court decisions. The Convention delegates were weil aware that courts needed a check—that King Charles I, of England, has gotten the judiciary to support the divine right of kings, just as Louis XVI did a century and a half later in France.

“Basic then, was that all power was to flow from the people. The people were to make the Constitution, elect the Executive and the Legislature. Laws were to conform to the Constitution. And only the people could change the Constitution

“The power that the people were to give to the Federal Government was to be explicit, spelled out. Anything not spelled out for the Federal Government was to remain with the States. A check of the States on the Federal Government. The Bill of Rights ends with the statement: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respo tively, or to the people.'

"It was a government of checks and balances; a government with an intentional, built-in slowness to change; the people to have all power, spelling met what they would permit the Federal Government to do, reserving the rest of their governmental functions and expressions to their own States and local governments.

"And to prevent unnatural forms of governments from arising through the State to devour the Union, article IV declares that "The United States shall guarantee to every State in this Union a Republican form of Government.'

"It was a government that echoed the years: 'Governments are of divide origin.' "The great end is to secure people from the abuse of power.' 'Govern ments depend on men rather than men on governments.' "The people are the rulers, the officers are the servants.' 'Governments derive their just powers from the consent of the governed.' 'Prudence, indeed, will dictate that gor. ernments long established should not be changed for light and transien causes."

"And it is with this background that we address ourselves to the June 13, 1964, 6-to-3 decision of the Supreme Court on apportionment of State senatrons

"Briefly, the six majority members of the Supreme Court said last June 1.7

"1. That seats in both houses of State legislatures must be a portioned soles on a population basis, and that the population in each district of the user house, as well as in the lower house, must be as nearly equal as possible.

*2. That political equality can mean only one thing: 'One person, one rote.' And that one political district being larger than another political district is 'counter to our fundamental ideas of democratic government.' And 'legislators represent people, not trees or acres * * * people, not land or trees or pastures, vote * * citizens, not history or economic interests, cast votes.'

“3. That the vote of a citizen in a district with larger population is debasei inasmuch as his vote counts for less; that he is, therefore, less of a citizen; and, as such, he is denied equal protection of the law under the 14th amendment. The first section of the 14th amendment declares that no State shall decy to any person within its jurisdiction the equal protection of the laws.'

“4. That the Federal system of apportioning Senators by geographical area (two to a State) is not a sound example for State legislatures to copy becanse the Federal system grew out of unique historical circumstances and was copa ceived out of compromise between 13 large and small, independent, sovereigt: States. They said: “The Founding Fathers clearly had no intention of estallishing a pattern or model for the apportionment of seats in State legislatures when the system of representation in the Federal Congress was adopted." Ther quote Thomas Jefferson as writing in 1816 that 'a government is republican in proportion as every member composing it has equal voice in the direction of ;** concerns * * by representatives chosen by himself.' And in 1819: Equal representation is so fundamental a principle in a true republic that no prejudice can justify its violation because the prejudices themselves cannot be justified'

"The Court, therefore, ruled 6 to 3, that six States (Alabama, Colorado, Delaware, Maryland, New York, and Virginia) whose apportionment cases were before the Court on June 15, must reapportion both houses of their State legislatures on a population basis, and that alone. The following week the Court, in another series of decisions, nullified the legislatures of an additional nine States (Michigan, Washington, Oklahoma, Illinois, Idaho, Connecticut, Florida, Ohio, and Iowa). But the basic decision applies to more than 40 States which apportion districts in one or both houses of their State legislatures partly on population and partly along historical, economic, geographic, or county lines.

"The June 15 decision was an astonishing departure from previous Court opinions dating from the 1800's. These previous Courts held that apportionment of State legislatures is a political question reserved for the States, and that the Supreme Court does not have jurisdiction in such cases.

“Justice Harlan, in a vigorous dissenting opinion on June 15, said: "It is difficult to imagine a more intolerable and inappropriate interference by the judiciary with the independent legislatures of the States.”

“Of course, trees and acres, and economic interests don't vote, Justice Harlan acknowledged, 'But it is surely equally obvious, and, in the context of elections, more meaningful to note that people are not ciphers, and that legislators can represent their electors only by speaking for their interests-economic, social, political-many of which do reflect the place where the electors live."

"The aftermath of the decision of the majority, said Justice Harlan, 'will have been achieved at the cost of a radical alteratio in the relationship between the States and the Federal Government. (The Court) does not serve its high purpose when it exceeds its authority. * * * For when, in the name of constitutional interpretations the Court adds something to the Constitution that was deliberately excluded from it, the Court in reality subsitutes its view of what should be so for the amending process.

* * * it has strayed from the appropriate bounds of its authority *** what is done today deepens my conviction that judicial entry into this realm is profoundly ill-advised and constitutionally impermissible.'

“Justice Stewart joined Harlan in the dissent. "The Court's answer is a blunt one, and, I think, woefully wrong,' said Justice Stewart. The majority bolds that 'the fundamental principle of representative government in this country is one of equal representation for equal numbers of people *** I think this is not correct, simply as a matter of fact.'

"Justice Stewart quoted ex-Justice Frankfurter on an earlier case who said that this (equal representation) 'was not the colonial system, it was not the system chosen for the National Government by the Constitution, it was not the system exclusively or even predominantly practiced by the States at the time of adoption of the 14th amendment, it is not predominantly practiced by the States today.'

* *To put the matter plainly,' said Stewart, 'there is nothing in all the history of this Court's decisions which supports this constitutional rule * (it) finds no support in the words of the Constitution, in any prior decision of this Court, or in the 175-year history of our Federal Union.

“ 'Uncritical, simplistic, and heavyhanded application of sixth-grade arithmetic,' summed up Justice Stewart 'if geographical residence is irrelevant, as the Court suggests, and the goal is solely that of equally "weighted” votes. I do not understand why the Court's constitutional rule does not require the abolition of districts and the holding of all elections at large.'

"To summarize, in our own words, and in less legal terms, we can see that the Supreme Court majority of six is claiming that the Court, not the people, has jurisdiction over how State legislatures will be set up. The Court declared a new Colorado apportionment plan invalid, even though the people in a 1962 statewide referendum had approved it in every county of the State. Colorado had rejected an alternative plan to place both houses on a straight population basis.

"By this action, the majority Court declared that they, six men, can amend the Constitution—not only of the United States, but of the 50 States as well. The framers of the Constitution were careful to give this amending power to the people alone.

“If in the Constitutional Convention of 1787 a plan had been proposed before Madison, Morris, Randolph, Hamilton, and the others that the Supreme Court should have jurisdiction over the makeup of State legislatures, it would have gotten nowhere.

“If in 1787 these present-day majority six had proposed that the Supreme Court be given the power to amend the Constitution, they would have been run out of Franklin's town for proposing a centralization of power in one branch of the

« SebelumnyaLanjutkan »