Delivered by John Smietanka
Lake Superior State University
Sault Ste. Marie, Michigan
I believe this observation will be found generally true: That no two people are exactly alike in their situation or circumstances as to admit the exercise of the same Government with equal benefit; that a system must be suited to the habits and genius of the people it is to govern, and must grow out of them.
Charles Pinkney of South Carolina
June 25, 1787
Reported by James Madison
Debates in the Federal Convention of 1787
Tonight, as winter blows around us again, we look for an evening at a document of mythic magnificence, the United States Constitution and its Bill of Rights. We will take it apart piece by piece, phrase by phrase, to see what it means and how it lives today. But before we do that let us take a few minutes to understand where it came from, its historical and philosophical birth.
In the summer of 1787, representatives of 12 of the 13 States, bound together by the geography of continent and ocean, by 200 years of separate lineage growing slowly together and by an eight year war of rebellion from the British Crown, gathered in Philadelphia. Their commission from the Continental Congress and their respective States, was to consider the state of affairs of the Articles of Confederation under which the former British Colonies had operated for six years formally (and for several before that informally), and to propose whatever changes were appropriate to improve it. They did consider it, rejected it in toto, and proceeded to create a new Constitution.
Meetings like that Convention have not in their dynamics radically differed throughout the ages. People gather, charged with organizing and reorganizing themselves as businesses, school boards, faculty committees, environmental groups, and engage in similar tasks today. People quickly find areas of agreement and of disagreement; they develop leaders and followers, and the group gadflies. Members each come from somewhere, with different constituencies and interests to protect: they have declared and hidden agendas. So it was with the "Federal Convention of 1787."
But the key differences here were the intensity of the social storm raging about them and the quality of the delegates.
Though summer in Philadelphia would seem not comparable to Sault Ste. Marie in the winter, in some ways a parallel exists. Tonight, if we were out sailing with the winds of Lake Superior blowing snow over cold, dark waves on a cloudy night, we could feel something of the fear and uncertainty the delegates were affixed by 200 years ago. Their world was adrift, like the ship I described. The union they lived in, born out of compromise and a common enemy, was now falling apart at the seams. States, once relatively united, were now at each other's throats, talking of destruction tariffs for each other's goods, with different views on foreign policy, military force, slavery, religion and virtually every aspect of daily life. The common enemy, Great Britain, still surrounded the young states, with an all-powerful navy at sea, and forts, troops and Indian allies in Canada and the Northwest, but the union was still dissolving. They didn't know where they were and certainly not where they were going.
The form of government that had survived for centuries in their homeland was the monarchy, as modified by a parliament increasing in its own authority over the same period of time. But power was subject to law. The Magna Charta of 1215, recognizing the privileges of the English nobility vis-à-vis the King; the Mayflower Compact of 1620, setting out the concept of "the people" of the Massachusetts Bay Colony creating their own local government; the Bill of Rights of 1688, establishing the ground rules for the reintroduction of the English monarchy after the traumatic days of Parliamentary Wars, Cromwell and the four Kings James and Charles; finally the colonies and later States themselves had adopted constitutions and charters assuring certain personal freedom for their "people."
All of this history and more, the great philosophers of law and government, Gratian, Aquinas, Bracton, Blackstone, Hobbes, Locke, Rousseau and especially Montesquieu, and the experience of struggle with making a country from scratch all walked into Constitution Hall with these men each day. Their speeches, as recorded in summary form by Madison, when we strip away what we find a bit of stiffness in language, is unmatched in the history of political science for matching great ideas with real life in action.
These were men of great perception, historians, military leaders, businessmen, philosophers, and scientists. George Washington, Benjamin Franklin, James Madison, Alexander Hamilton, Gouverneur Morris to name just the greatest lights.
The ultimate document was a product of genius and compromise, perhaps a compromise by geniuses. It provided for both representation by population (the House of Representatives) and by States (the Senate, to be stably maintained by the greatest wisemen each could provide). In all events, throughout it was a labyrinth of checks and balances, which today we praise for its genius, while some fear it has produced government gridlock. This scheme was for the protection of the people and the States from the unrestrained exercise of central control. And, in the long view, we must say it has worked exceedingly well.
However, the fear of power untrammeled persisted in the Convention delegates, in some State Legislatures and in sizeable portions of the populace. Thus, the idea of a Bill of Rights added to or designated into the new Constitution was discussed. The matter did not find form in the finished document, both because, I think, the exhausted delegates shuddered at the thought of both the debate necessary to identify and articulate what rights should be recognized, and rebuilding the document to contain them.
The delegates promised, however, that the first task of the new government should be to create a Bill of Rights as amendments to the Constitution. Even some who opposed it as a useless or a counter-productive task, such as Madison, later conceded it was appropriate and argued for it during the ratification process.
In the first Congress, Madison sponsored a Bill of Rights, based on the Virginia Declaration of Rights and Thomas Jefferson's Virginia Statute for Establishing Religious Freedom. Congress approved it on September 26, 1789, and the states ratified it, Virginia finally doing so on December 15, 1791.
Every day, when I make judgments about whom to charge with what crimes, about how to respond to the constant demands by individual citizens and groups to prosecute certain sorts of behavior, I have to balance the action -- say removing pornography from a Seven Eleven -- against the protections of the First Amendment. Both the Constitution and its Bill of Rights began as practical working documents, though devised by geniuses of a different century, faced with a different world they were living in and responding to. However, this great charter and map of the relations between a people and its government remains alive and kicking today.
In the last few months I have had a challenging and powerful experience: teaching and talking with lawyers, judges, law and political science professors, and activists from all around the world about our Constitution, Bill of Rights and how our government works from day to day. I have tried to explain to people from 40 or more countries on visits to our country, here to find out some answers on how we have survived, this polyethnic, polyglot group of descendants of poor immigrants, for so long. Teaching something always brings one face-to-face with how to compress theories, history and experience into meaningful sentences and paragraphs. Doing so to people who have never visited our country, whose ideas of us come for our movies, books and television shows, and the horde of Beautiful Americans touring, doing business or fighting in their countries, is especially difficult.
When I am asked what is the key to understanding who we are and how we govern ourselves, I suggest the visitors must start with our Constitution and its Bill of Rights, and then travel the streets and fields of our magnificent and contradictory country, reading it and rereading it along the way.
Just as Charles Pinkney said, to be successful a government must grow out of the habits and genius of its people. Tonight we will talk about the symbiotic relationship of our Bill of Rights and our people.