Taking Another Look At The Constitutional Blueprint

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II. Parts I Like Best

The Preamble

Most significant for me is the preamble, and especially the beginning, which emphasizes “We the people of the United States...” rather than we the states. This was the real innovation, the basic change from the Articles of Confederation that made a national government effective. Making this change effective, Article VI says that “this Constitution, and the Laws of the United States which shall be made in Pursuance thereof...shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” The article goes on to require that all state officials must take an oath to support the U.S. Constitution. This article puts teeth in the Constitution, John A. Calhoun to the contrary notwithstanding. The great overall achievement was to establish a strong central government without destroying the independence of the states.

-John A. Garraty Chairman, Department of History, Columbia University.

Article One

I first seriously encountered the Constitution when I was writing my biography of Benjamin Franklin. Watching and all but participating as Franklin struggled to persuade the Constitutional Convention to resolve the furious differences between large states and small states over representation in Congress was, for me, an unforgettable historical experience. That is why I find intensely moving those prosaic sections in Article I in which it is matter-of-factly stated that “representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers” and “the Senate of the United States shall be composed of two Senators from each State.” When you know the rage, the anguish, the doubts with which this seemingly obvious solution was reached, these word are the great object lesson of the genius of American politics: the art, sometimes gentle but more often painful, of compromise.

-Thomas Fleming Novelist and historian. Author of, most recently, The Spoils of War.

First Amendment

The First Amendment, insofar as it refers to freedom of speech and of the press, has had particular significance for my intellectual and scholarly life. Fifty years ago, under the influence of my Harvard mentor, the government professor Carl J. Friedrich, I had been examining the uses and abuses of freedom of speech and press by such demagogues as Huey Long and Father Coughlin. My first substantial scholarly effort was a study of defamation in cross-cultural perspective. At that time there was little interest in libel law in the United States; what might be called today’s “libel malpractice bar” did not exist. The general American attitude appeared to be—whether victims of abuse were public officials, public personages, or relatively private citizens—that Americans should be able to “take it”; the schoolyard rhyme “Sticks and stones may break my bones, but words can never hurt me” reflected that popular sentiment. I recall today a particularly striking American case in which a court held that it was not defamatory to call an American a Communist, because, even if the charge was false, it was legal to be a member of the Communist party. I asked myself whether, in the American grain, the law of defamation could be successfully used, inter alia, against anti-Semitic speech and writing. The First Amendment aside, I was inclined to conclude that suppression of even incendiary speech and writing would lead to covert expression no less harmful to popular debate, and admired the decision of the United States Supreme Court in Near v. Minnesota, which had rejected on First Amendment grounds an effort by the state to close down an anti-Semitic paper.

In that period of the 1930s, Fascists in Europe regularly went to court to seek damages for defamation against critical statements concerning them; Sir Oswald Mosley in Britain was one of the many examples. Civil and criminal penalties for defamation in European countries could be exploited by those Fascist leaders who wanted to put an end to democratic institutions. In the United States, the doctrines I lumped under the heading of “Fair Game and Fair Comment” and the social psychological attitude that tough guys fended for themselves and (the duel long since abolished) did not resort to the courts appeared to be standard American practice. Libel suits were rarely successful, punitive damages hardly ever awarded. I concluded that in more established and hierarchical societies it appeared legitimate to go to court to seek redress for libel and slander, but that it was almost “unAmerican” to do so here.