CONSTITUTIONS AND CONSTITUTIONALISM

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GOVERNMENT & THE STATEUnited StatesConstitution and Constitutionalism









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Nothing but a constitution can avert arbitrary power.
ACTON, LORD JOHN EMERICH EDWARD DALBERG, Lectures on the French Revolution: The Heralds of the Revolution, MacMillan and Co., Limited, London (1910)
Can any one of you seriously say the Bill of Rights could get through Congress today? It wouldn't even get out of committee.
BAILEY, F. LEE, quoted in Newsweek, April 17, 1967
Those who made and endorsed our Constitution knew man's nature, and it is to their ideas, rather than to the temptations of utopia, that we must ask that our judges adhere.
BORK, ROBERT, The Tempting of America
[T]he object of a Constitution, is to restrain the government, as that of laws is to restrain individuals.
CALHOUN, JOHN C., The Fort Hill Address
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 consequences, 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. Such a doctrine leads directly to anarchy or despotism...."
DAVIS, U.S. SUPREME COURT JUSTICE, Ex Parte Milligan (1866)
According to Aristotle, all varieties of democratic constitutions will tend to place the interests of the poor, that is, the many, ahead of those of other elements of the community...[O]nly when the citizens of a democracy do not find much time for politics will the constitution not tend to destroy itself from its own excesses. Within a polity of rural farmers or pastoral herders, those selected for important posts will tend to be the propertied, who can afford to take time for politics. In this way a rough balance of interests is maintained...The poor rule, but only through people who are not poor. It is crucial in all perverted forms that those enjoying power should act with special regard to the interests of those not enjoying power.
DIZERGA, GUS, Persuasion, Power and Polity, A Theory of Democratic Self-Organization, Chapter One
Three threats existed wherein a genuine republican majority could be subverted. First, parties pursuing private interests outside the government could capture the political apparatus to endow themselves with special privileges...Second, the government could constitute itself as an interest separate from that of society...Finally, the people could make mistakes...The core of republican political structures were the organs by which popular interests were to be represented in their various aspects in such a way as to constitute a genuine general interest and protect it against the power of private interests while minimizing the likelihood of serious mistakes.
DIZERGA, GUS, Persuasion, Power and Polity, A Theory of Democratic Self-Organization, Chapter Two
Jefferson concluded that "no form" of government ahd been devised whose structure could provide for an indefinite adequate representation of the general will. Nevertheless some forms were better than others, and the less a political structure depended on the virtues of those holding office within it, the longer its survival in good order was likely to be.
DIZERGA, GUS, Persuasion, Power and Polity, A Theory of Democratic Self-Organization, Chapter Two
The Constitution is not neutral. It was designed to take the government off the backs of people.
DOUGLAS, U.S. SUPREME COURT JUSTICE WILLIAM O. , quoted in The Court Years 1939-75
By the Federal Constitution...the citizen, in time of peace at least, is guaranteed, among other matters, the protection of the writ of habeas corpus; freedom from bills of attained and ex post facto legislation; freedom of religious belief and worship; freedom of thought and its expression; freedom peacefully to assemble with others and petition for redress of grievances; freedom from unreasonable searches and seizure; the right not to be prosecuted for infamous crimes except first accused by a grand jury; the right in all criminal prosecutions to a speedy and public trial by an impartial jury, to be confronted with the witnesses against him and to have assistance of counsel; that he shall not be deprived of life, liberty, or property without due process of law; that his private property shall not be taken from him even for public use without just compensation; that the obligations accruing to him under lawful contracts shall not be impaired; that he shall not be denied the equal protection of the laws.
EMERY, LUCILIUS A., Concerning Justice, Chapter VI, Bill of Rights
[T]he issue of constitutionalism is just this: how to constrain the misconduct of the sovereign while allowing him the necessary power to keep peace and good order. Our answer to this problem is limited government...Here are three possible limitations on sovereignty: federalism, separation of powers, and entrenched individual rights.
EPSTEIN, RICHARD
[T]he first 10 amendments to the Constitution… should more appropriately have been called the "Bill of Prohibitions" than the Bill of Rights...because a careful examination reveals that they are express restrictions on government powers rather than a grant of rights to the citizenry.
HORNBERGER, JACOB, Do Rights Come From the Constitution
The very purpose of the Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcomes of no elections.
JACKSON, U.S. SUPREME COURT JUSTICE ROBERT H., West Virginia Board of Education vs. Barnette (1943)
[A] genuine jurisprudence of "original intent," with respect to the Constitution would have to recognize the principles of the Declaration of Independence as the principles of the Constitution. The Constitution...is a bundle of compromises. There is no way, from the text of the Constitution alone, that one can distinguish those provisions which are consistent with its principles, and which implement those principles...from those that are compromises with those same principles (e.g. the security given to property in human chattels).
JAFFA, HARRY V., Storm Over the Constitution (1999)
A bill of rights is what the people are entitled to against every government on earth, general or particular, and what no just government should refuse to rest on inference.
JEFFERSON, THOMAS, Letter to James Madison, December 20, 1787
I see...with the deepest affliction, the rapid strides with which the federal branch of our government is advancing towards the usurpation of all the rights reserved to the States, and the consolidation in itself of all powers, foreign and domestic...aided by a little sophistry on the words ‘general welfare,’ a right to do, not only the acts to effect that, which are specifically enumerated and permitted, but whatsoever they shall think, or pretend will be for the general welfare.
JEFFERSON, THOMAS, Letter to W. B. Giles, 1825
It can never be too often repeated, that the time for fixing every essential right on a legal basis is while our rulers are honest, and ourselves united.
JEFFERSON, THOMAS, Notes on Virginia, Query 17
[C]onstitutions are efficient toward the obtaining of their main ends, the liberty of the citizen, only in the same degree as they themselves consist of an aggregate of institutions; as, for instance, that of the United States consists of a distinct number of clearly devised and limited, as well as life-possessing institutions; or as that of England, which consists of the aggregate of institutions considered by him who uses the term British Constitution as of fundamental and vital importance. It will, moreover, have appeared that these constitutions have a real being only if founded upon numerous wide-spread institutions, and feeding, as it were, upon a general institutional spirit. Without this, they will be little more than parchment.
LIEBER, FRANCIS, On Civil Liberty and Self-Government (1853), Chapter XXVIII
No one can read our Constitution without concluding that the people who wrote it wanted their government severely limited; the words "no" and "not" employed in restraint of government power occur 24 times in the first seven articles of the Constitution and 22 more times in the Bill of Rights.
OPITZ, EDMUND A., The American Way in Economics, The Freeman, October 1964
[A] constitution founded on the Rights of Man and the Authority of the People, the only authority on which government has a right to exist in any country.
PAINE, THOMAS, The Rights of Man, Volume I
It Is precisely because they implicate the rights of others, therefore, that acts that endanger or defame are not protected by the First Amendment, even when they are deemed to be "speech," whereas acts that do not implicate the rights of others are protected.
PILON, ROGER, The Right to Do Wrong
Today, when a concerted effort is made to obliterate this point, it cannot be repeated too often that the Constitution is a limitation on the government, not on private individuals- that it does not prescribe the conduct of private individuals, only the conduct of the government- that it is not a charter for government power, but a charter of the citizen's protection against the government.
RAND, AYN, Atlas Shrugged
The government was set to protect man from criminals -- and the Constitution was written to protect man from the government. The Bill of Rights was not directed against private citizens, but against the government -- as an explicit declaration that individual rights supersede any public or social power.
RAND, AYN, The Virtue of Selfishness
It's easy for people to assume that the Bill of Rights will be, as somebody once called the Constitution, a machine that runs itself. I disagree. I think eternal vigilance is the price of keeping it in working order.
TRIBE, JUDGE LAWRENCE
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