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10 May 2004 02:59:51 PM |
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DOI NOT LAW |
PART III
I can add this from another book:
By the era of the American Revolution trial by jury was probably the most
common right in all the colonies. When Parliament imposed the Stamp Act of
1765, authorizing admiralty courts to enforce its provisions, John Adams
voiced the American reaction: "But the most grievous innovation of all, is
the alarming extension of the power of courts of admiralty. In these
courts, one judge presides alone! No juries have any concern there! The law
and the fact are both to be decided by the same single judge." Thus, the
Stamp Act Congress protested the denial of one of "the most essential
rights and liberties of the colonists," and the Boston town meeting of
1772, which framed "A List of Infringements and Violations of Rights,"
included trial by jury, which it hailed as "the grand bulwark and security
of English property." Colonists vehemently denounced admiralty courts
because they worked without juries. Selectively quoting from Blackstone's
Commentaries, the colonists praised his remarks to the effect that trial by
jury was the "sacred palladium" of English liberties that might be
undermined by new or different methods of trial.
Americans formally claimed trial by a jury of the vicinage as a right of
Englishmen whenever they apprehended that Britain threatened that right, as
when a provision of the Coercive Acts of 1774 authorized the trial in
England of certain persons who violated the acts. The first Continental
Congress in 1774 approved of an intercolonial "Declaration of Rights" based
on natural law, the, English Constitution, and the provincial charters. The
Declaration of Rights included "the great and inestimable privilege of
being tried by their peers of the vicinage" according to the common law.
And when Congress sought to enlist Canadian support for its cause, its
letter to the inhabitants of Quebec, in 1774, specified trial by jury as
the preserver of life, liberty, and property against arbitrary and
capricious men. In the 1775 Declaration of the Causes and Necessity of
Taking Up Arms, Congress censured Britain for having passed statutes
"extending the jurisdiction of courts of admiralty and vice-admiralty
beyond their ancient limits; for depriving us of the accustomed and
inestimable privilege of trial by jury, in cases affecting both life and
property" In the Declaration of Independence, Congress criticized George
III for "depriving us, in many cases, of the benefit of trial by jury."
SOURCE: Orgins of the Bill of Rights, Leonard W. Levy, Yale University
Press (1999) pp. 226-27
******************************
The House did not take the time or trouble to review his recommended
amendments with the attention they deserved. In committee or as a result of
debate, the House added only one important right to Madison's list, freedom
of speech, which Pennsylvania had constitutionally protected. Some major
principles, which appropriately prefaced a bill of rights, were deleted,
despite their commonplaceness. Madison, for example, had urged a statement
that power derives from and rests with the people, that government should
be exercised for their benefit, and that they have a right to change that
government when inadequate to its purposes. He had lifted his statement of
those purposes from his own state's 1776 constitution and from its 1788
recommendations for inclusion in a national bill of rights. Those purposes
expressed the idea that governments are instituted to secure the people,
said Madison, "in the enjoyment of life and liberty, with the right of
acquiring and using property, and generally of pursuing and obtaining
happiness and safety." The Declaration of Independence had made the points
more concisely and felicitously, but not with such generosity. The Virginia
version proposed by Madison (and adopted in numerous state constitutions)
spoke not only about the pursuit of happiness but of obtaining it.
Conceivably, the committee that eliminated Madison's prefatory principles
believed them to be implicit in its streamlined version of what became the
Ninth Amendment: "The enumeration in this Constitution of certain rights
shall not be construed to deny or disparage others retained by the people."
Both houses approved.
SOURCE: Orgins of the Bill of Rights, Leonard W. Levy, Yale University
Press (1999)
pp. 248-49
******************************
What rights did the Ninth Amendment protect? They had to be either "natural
rights" or "positive rights," to use the terms Madison employed in the
notes for the great speech of June 8 advocating amendments. In that speech
he distinguished "the preexistent rights of nature" from those "resulting
from a social compact." In his notes, he mentioned freedom of "speach" as a
natural right, yet he failed to provide for it in his recommended
amendments. That is an example of Madison having acknowledged the existence
of important rights that he had not enumerated or believed to be included
within the unenumerated category. Freedom of speech was a right that
preexisted government; it was inherent in human nature and did not depend
for its existence on organized society. In 1775 Alexander Hamilton wrote
that "the sacred rights of mankind are not to be rummaged for among old
parchments or musty records. They are written, as with a sunbeam, in the
whole a volume of human nature, by the hand of the divinity itself, and can
never be erased or obscured by mortal power." Another toughminded American
materialist had led the way to such thinking. a John Dickinson, speaking of
"the rights essential to happiness," rhapsodized: "We claim them from a
higher source-from the King of kings, and Lord of all the earth. They are
not annexed to us by parchments and seals. They are created in us by the
decrees of Providence, which establish the laws of our nature. They are
born with us; exist with us; and cannot be taken from us by any human power
without taking our lives. In short, they are founded on the immutable
maxims of reason and justice." Such opinions were commonplace.
So, too, the directly related views expressed by Jefferson in the
preamble of the Declaration of Independence reflected commonly held
principles. In 1822 John Adams, who had been a member of the committee of
Congress that Jefferson had chaired in 1776, observed that there was "not
an idea in it [the Declaration] but what had been hackneyed." Jefferson
asserted that "all American whigs thought alike" on those matters. The
purpose of the Declaration, he wrote, was not "to find out new principles,
or new arguments . . . but to place before mankind the common sense of the
subject." These views are central to the meaning of the Ninth Amendment.
Contrary to cynical legal scholars of today, the ideas of the preamble to
the Declaration did not go out of fashion in a decade and a half; and those
ideas were as appropriate for writing a frame of government as for writing
a "brief."
The proof derives from both text and context. The text of the Ninth
Amendment does protect the unenumerated rights of the people, and no reason
exists to believe that it does not mean what it says. The context consists
of Madison's remarks about natural rights during the legislative history of
the amendment and also the references to natural rights in the opinions of
the time, or what Madison called "contemporaneous interpretations." The
last of the state constitutions that came out of the Revolution, that of
New Hampshire, began with a bill of rights of 1783 whose language Madison
might have used in his first proposed amendment, the one that included the
pursuit and obtaining of happiness. Virginia's 1788 recommendations for
amendments to the Constitution began similarly, as had New York's and North
Carolina's. At the Pennsylvania ratifying convention, James Wilson, who had
been second only to Madison as an architect of the Constitution, quoted the
preamble of the Declaration of Independence, and he added: "This is the
broad basis on which our independence was ., placed; on the same certain
and solid foundation this system [the Constitution] is erected."
SOURCE: Orgins of the Bill of Rights, Leonard W. Levy, Yale University
Press (1999)
pp. 250-51
******************************
The Declaration is not only part of our history; we are part of its
history. We have cited it, over the years, for many purposes, including the
purpose of deceiving ourselves; and it has become a misshapen thing in our
minds. Jefferson never intended it for a spiritual Covenant; but it has
traveled in an Ark that got itself more revered the more it was battered.
The best way to honor the spirit of Jefferson is to use his
doubting intelligence again on his own text. Only skepticism can save him
from his devotees, return us to the drier air of his scientific maxims, all
drawn with the same precision that went into his architectural sketches.
The pollster on the street wants us to "endorse" Jefferson's Declaration.
But Jefferson would be the first to ask what such an exercise could mean.
Despite his hostility to Plato, he liked Socrates and thought the
unexamined life not worth living. Even more, the unexamined document is not
worth signing. The Declaration has been turned into something of a blank
check for idealists of all sorts to fill in as they like. We had better
stop signing it (over and over) and begin reading it. I do not mean seeing
it. I mean reading it.
That is a more difficult task than one might at first suppose. The
Declaration is constantly invoked but rarely studied. There have, in fact,
been only three important books on the document written in this
century-John Hazelton's in 1906, settling the outstanding historical
problems of the paper's passage and signing; Carl Becker's in 1922,
enshrining the Lockean interpretation of its content; and Julian Boyd's
first volume of the Jefferson Papers in 1950, establishing the text with
magisterial thoroughness. Other books have done little but recast,
popularize, or misquote these seminal works in three different fields
connected with the Declaration.
Why such exiguous scholarship around a paper so loved, so often put
to questionable political use, so omnipresent at the merely verbal level? A
preliminary hint or two may be given here, to be explored more fully later.
For one thing, the Declaration is not a legal instrument, like the
Constitution. Each phrase of the latter document has been tested in courts
and in legal classrooms, under strict rules of interpretation, with
consequences of the most serious kind riding on the results of such
inquiry. Men go free or go to jail, depending on the reading of a phrase.
The Declaration, having no such force of law, has not undergone this
discipline of "construction," strict or loose.
Besides, for the Constitution we have the long drafting process
recorded in Madison's notes, the arguments of the framers voiced in
protracted debate, the records of ratifying conventions in each state,
along with the authoritative exposition of federal doctrine by "Publius."
There are no notes from the drafting or acceptance of the Declaration,
which was by comparison the work of a few days. Nor did the Declaration
call forth early attack or exposition of a fruitful sort. It had, indeed,
astonishingly little immediate effect in the world of ideas, and quickly
sank into an obscurity not fully dispelled for almost half a century. When
serious scrutiny did begin, it was occasioned by distorting acrimony. As
the document grew in importance, so did the myths and partisan uses. The
time of obscurity yielded to almost a century of blinding glare and
misrepresentation, until Hazelton began the scholarly reclamation of the
paper.
SOURCE: Inventing America, Jefferson's Declaration of Independence, by
Garry Wills, Vintage Books (June 1979) Prologue, pp. xiii-xxiv
********************************************
A "Christian Country and Christian People"`
The first source of the Christian nation concept during the
nineteenth century came from the notion that the American nation and its
democratic system were based on Christian principles. This notion was
derived from popular belief that the first settlers had been guided to the
new land by the providential hand of God which had in turn protected and
nurtured the colonies in their development into a nation. These
providential influences guided the Founding Fathers in creating the new
government and found their way into the nation's organic documents. Thus,
central to this argument was the belief that Christian principles provided
the foundation for the Declaration of Independence, the Constitution and
for American democracy itself. Because of these origins, the state had a
special obligation to promote Christian principles as a way of preserving
both democratic and religious institutions.
This view of America's Christian nationhood was widely shared in
varying degrees throughout the nineteenth century, especially during the
antebellum period, and is even espoused today. What is so remarkable about
this perspective is that it was not generally shared by the founders and
their contemporaries, but instead developed through a melding of America's
religious heritage with evangelical aspirations for America's millennial
role.
SOURCE: THE RHETORIC AND REALITY OF THE "CHRISTIAN NATION" MAXIM IN
AMERICAN LAW, 1810-1920 by Steven Keith Green A unpublished dissertation
submitted to the Faculty of the University of North Carolina at Chapel Hill
in partial fulfillment of the requirements for the degree of Doctor of
Philosophy in the Department of History. Chapel Hill, (1997) p 22)
*********************************
EVIDENCE FOR AND AGAINST THE "ORGANIC LAW" CLAIMS
*********************************
By Authority of Congress
The
Public Statues at Large
of the
United States of America,
from the
Organization of the Government in 1789, to March 3, 1845.
Arranged in chronological order.
With
References to the Matter of Each Act and to the Subsequent Acts
on the Same Subject,
and
Copious Notes of the Decisions
of the
Courts of the United States
Construing those acts, and upon the subjects of the Laws.
with an
Index to the Contents of Each volume,
and a
Full General Index to the whole work, in the Concluding Volume.
Together with
The Declaration of Independence, the Articles of Confederation, and
the Constitution of the United States;
and also,
Tables, in the last volume, containing lists of the acts relating to the
judiciary,
imposts and tonnage, the public lands, etc.
Edited by
Richard Peters, Esq.,
Counsellor at Law.
The rights and interest of the United States in the stereotype
plates from which this work is printed, are hereby recognized,
acknowledged, and declared by the publishers, according to the provisions
of the joint resolution of Congress, passed March 3, 1845.
Vol. I.
Boston:
Charles C. Little and James Brown.
1845
***************************************************
In the above book on page 1, one finds the DOI. On page 4 one finds the
Articles of Confederation, page 10 gives us the Constitution, page 21
Amendments to the Constitution, but nowhere does one find any mention of
"Organic Laws." Therefore, in 1845 no Organic Law designation was given to
the DOI On page 23 one finds
THE
LAWS OF THE UNITED STATES
________________
ACTS OF THE FIRST CONGRESS
OF THE
UNITED STATES
The very first one
**An Act to regulate the Time and Manner of adminstrating certain Oaths**
is dated June 1, 1789. Thus, the very first law of the United States was
dated June 1,
1789, not 1797, not 1783, not 1781, not 1776 or 1774 even.
*********************************************************
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