[Congressional Record Volume 146, Number 114 (Friday, September 22, 2000)]
[Senate]
[Pages S9119-S9122]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




    THE 213TH ANNIVERSARY OF THE SIGNING OF THE U.S. CONSTITUTION--
                           SEPTEMBER 17, 1787

  Mr. BYRD. Mr. President, in commemoration of the signing of the 
Constitution and in recognition of the importance of active, 
responsible citizenship in preserving the Constitution's blessings for 
our Nation, the Congress, by joint resolution of August 2, 1956 (36 
U.S.C. 159), requested that the President proclaim the week beginning 
September 17 and ending September 23 of each year as ``Constitution 
Week.'' That has happened each year since.
  This week the United States celebrates one of its greatest 
achievements. Two-hundred and thirteen years ago, on September 17, 
1787, the Founding Fathers placed their signatures on the newly created 
Constitution in Philadelphia's Independence Hall. Eleven years earlier, 
6 of the 39 signers of the U.S. Constitution signed the Declaration of 
Independence in the same building in Philadelphia. Within the lifespan 
of a single generation, Americans had effectively declared their 
independence twice.
  In many ways, the liberation claimed from Britain in 1776 was less 
remarkable than the historical achievement that Americans claimed by 
framing the Constitution in 1787. The Constitution represented a 
triumph of political imagination and pragmatism by recognizing that 
ultimate political authority resides not in the government, or in any 
single government official, but rather, in the people.
  The Founding Fathers had used the doctrine of popular sovereignty as 
the rationale for their successful rebellion against English authority 
in 1776 when they framed the Declaration of Independence. They argued 
that the government's legitimacy remains dependent on the governed, who 
retain the inalienable right to alter or to abolish their government. 
The Declaration of Independence set forth their justifications for 
breaking with Britain, but, until September 17, 1787, they had not yet 
been able to work out fully how to implement principles of popular 
sovereignty, while, at the same time, preserving a stable government 
that protects the rights and liberties of all citizens. The 
Constitution is a mechanism for advancing the principles of the 
American Republic stated so eloquently in the Declaration of 
Independence. To paraphrase former Chief Justice Warren Burger, the 
Declaration is the promise, the Constitution is its fulfillment.
  The new republican union created in 1776 was a truly unprecedented 
experiment, whose future was very much in doubt. Not only were the 
former British colonies unsure of whether they would be successful in 
their war for independence, but there was also doubt that the American 
colonials would be able to create a stable republican government, able 
to protect the rights and liberties of its citizens, without 
backsliding into the same authoritarian rule experienced under Britain. 
For this reason, it is appropriate that we take this moment, 213 years 
later, to reflect on a document that completed an uncertain process 
that was begun, from a documentary standpoint, on July 4, 1776.
  I have spoken on several occasions about the taproots and the origins 
of the U.S. Constitution. Of course, the State constitutions, some of 
which had been in existence since early 1776, greatly influenced the 
framers. Many of the ideas in the State constitutions had already been 
tested under colonial experience, and as a matter of fact, under the 
British experience, and were later reborn in our national charter. The 
establishment of a national bicameral legislature finds its roots in at 
least 9 out of 13 State constitutions. Of course, the roots extended 
prior to that but in at least 9 of the 13 State constitutions we find 
the enlargement of the roots, the fleshing out of the roots, the 
nourishing of the roots.

  Lessons derived from recent political experiences were arguably as 
likely to influence the thinking of the founding

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framers as the maxims and axioms of, among others, the English 
philosophers John Locke, Sir William Blackstone--one of the great legal 
authorities of all time--John Milton--that great author of ``Paradise 
Lost'' and ``Paradise Regained'', Algernon Sydney, and other great 
works--Scottish philosopher David Hume, and French philosopher Baron de 
Montesquieu, all of whom were part of the intellectual Enlightenment 
period.
  Likewise, many of the institutional practices embedded in the U.S. 
Constitution hark back to England and its Constitution, which, although 
it is largely unwritten, does contain such written documents as the 
Magna Carta, the Petition of Right, and the English Bill of Rights. 
Many of the amendments incorporated into the U.S. Bill of Rights can be 
found, almost word for word, in those political documents.
  But, to truly understand and appreciate the U.S. Constitution and the 
political movement that led to its creation, one must become familiar 
with the first national charter that was established by the newly 
independent colonies--namely, the Articles of Confederation.
  Many Americans have heard of the Articles of Confederation, fewer 
Americans probably ever read those Articles of Confederation.
  The operation of government under that national charter provided the 
most visible examples of what republicanism meant in practice. Its 
failure not only drove the movement for constitutional reform--when I 
say ``its failure,'' I mean the failure of the Articles of 
Confederation--not only drove the movement for constitutional reform 
that brought the framers to Philadelphia in 1787, but also brought 
experimental evidence--ah, how important was that experimental 
evidence--from which the framers drew in creating a greatly improved 
model of republican government.
  From its inception, the first national charter--the Articles of 
Confederation--had limited goals. The Articles provided for what was 
essentially a continuation of the Second Continental Congress by 
creating a unicameral legislature, where each State was represented 
with one vote. This body had the authority to declare war, to conduct 
diplomacy, to regulate Indian affairs, to coin money, and to issue 
currency, among other things. However, to limit the threat of a 
centralized authority, Congress could not levy taxes or regulate trade. 
The crucial power of the purse rested solely with the States, which 
were to contribute funds at the request of the Congress. The Articles 
further limited centralized power by providing the States with total 
enforcement authority so that the Congress could do no more than to 
recommend policies to the States. When it came to money, it could do no 
more than just request the funds from the States. The States, which 
then could accept or ignore these recommendations, most of the time 
failed to provide the funds. Many times the States would provide some 
of the funds but not all of the funds requested.

  Looking back, the inherent weaknesses of the Articles seem obvious 
now, but all of these limitations on the Congress were designed with 
the specific intention of making the State legislatures the dominant 
force in the Government. This may seem peculiar to us today, but, at 
the time, loyalty to the State Governments rather than to the Nation 
underlaid the mentality of post-war America. We oftentimes forget that 
the Articles were drafted in 1777 in the midst of the Revolutionary 
War. At the time, delegates were more concerned about keeping up with 
the demands of the Continental army, and, perhaps more importantly, 
avoiding capture by the British army which had occupied New York City 
and Philadelphia in 1777 than in drafting a national charter. In fact, 
it was not until 1781--4 years later--that the Articles of 
Confederation had been ratified by the thirteen States. With the new 
Nation in the midst of a military crisis, Congress assumed correctly 
that the States would contribute funds and men to the common defense. 
From the Framers' perspective--the framers of the Articles of 
Confederation--the greatest problem in 1777 was curbing executive 
power. And that is still a problem today. What had driven the colonies 
into rebellion was an abuse of executive power by the king, his 
ministers, and his agents. To ensure that the executive could never 
again threaten the popular liberty, national government was made 
subservient to the States in order to preserve the sovereignty of the 
States.
  What ultimately began to alter the American psyche can only be 
described as Congress' impotence in addressing incidents of unrest in 
the Nation. Efforts had been underway to amend the Articles even before 
they took effect on March 1, 1781. One week earlier, Congress had asked 
the States to approve an amendment authorizing it to collect a five 
percent tariff on imported goods. This amendment was the outgrowth of 
the economic condition of the country at the time. By 1781, American 
merchants found themselves deeply in debt after the British and French 
closed markets in the Caribbean to their trade, and Americans continued 
to import large amounts of luxury goods. At the same time, the Congress 
and States were printing paper money to finance their debts, which were 
backed only by their promise to redeem the bills with future tax 
receipts. By 1781, the currency had become worthless and led Americans 
to coin the expression, ``not worth a continental.'' The printing of 
paper money combined with a wartime shortage of goods led to an 
inflationary spiral of fewer and fewer goods costing more and more 
money. The goal of the amendment introduced in February 1781 was to tax 
imports, which would simultaneously reduce the demand for imports while 
forcing British and French merchants to open their Caribbean trade 
routes. The amendment would ultimately fail when Rhode Island refused 
to approve it.
  Congress was faring no better in foreign diplomacy. In 1784, Spain 
closed New Orleans and the Mississippi river to American trade, 
preventing settlers living to the west of the Appalachian mountains 
from shipping their goods to the Gulf of Mexico, and thence to other 
markets. This action, coupled with the abortive separatist movements in 
Kentucky and Tennessee, threatened to divide the American Nation into 
two or three separate confederacies by forcing southwestern territories 
to accommodate themselves to Spain. In 1785, Congress instructed 
Secretary of Foreign Affairs John Jay to negotiate a treaty with Spain 
that would allow the southwestern States to navigate the Mississippi, 
and thus, ensure southwestern loyalty to the American Nation. The 
Spanish emissary, Don Diego de Gardoqui, however, proved to be the more 
formidable diplomat. He convinced Jay to sign a treaty by which the 
United States would relinquish all rights to the Mississippi for 
twenty-five years in return for Spain acknowledging U.S. territorial 
claims in the southwest. When the treaty became public knowledge, 
however, southwestern territories were outraged, further dividing the 
Nation. Congress attempted several times in the 1780s to give Congress 
greater authority to regulate both foreign and interstate commerce. The 
amendments, however, were never unanimously approved by the States.
  In both of these matters of diplomacy and economics, Congress under 
the Articles of Confederation, found that its proposals would founder 
on the requirement of unanimous State ratification. This requirement 
led the supporters of a stronger national government to believe that 
such a policy could only be pursued through a limited, piecemeal 
approach. The desultory history of all of the amendments that Congress 
had fruitlessly considered since 1781 suggested that more radical 
approaches stood little chance. However, by 1786, it became clear that 
the states stood little chance of ever unanimously agreeing to 
amendments. With Congress losing what little influence it had, it soon 
became clear to a group of Virginians that any reform efforts would 
have to first come from the states.

  The most important effort toward reform therefore took place in 
Virginia in January 1786, when the state legislature approved a 
resolution calling for an interstate conference to consider vesting 
more power in the confederation Congress to regulate commerce. The 
Convention was to take place in Annapolis, Maryland, and, although only 
five states sent delegates to attend the Annapolis convention in 
September 1786, the delegates did agree to a second convention in 
Philadelphia ``. . . to devise such further provisions

[[Page S9121]]

as shall appear to them necessary to render the constitution of the 
federal government adequate to the exigencies of the union.'' The 
potential radical thrust of this proposal suggests that the gradual 
strategy of reform had collapsed, and that many of those present had 
turned to a desperate maneuver after having exhausted all other 
measures. Among those present were Hamilton and Madison.
  Yet, up until the winter of 1786-1787, when the Shays' Rebellion took 
place, the Founding Fathers did not suggest that the Philadelphia 
convention should address anything other than the conspicuous failings 
of the Articles.
  However, events in Massachusetts in the winter of 1786-1787 cast the 
problems of the nation in more comprehensible terms. Shays' Rebellion 
began as a protest by Massachusetts farmers laboring under heavy state 
taxation and private debt. Led by Daniel Shays, a veteran of the 
Revolution, an armed mob of two thousand men marched on the federal 
arsenal in Springfield, Massachusetts, and closed the county courts to 
halt creditors from foreclosing on any more farms. The State Militia 
quelled the uprising, but the news of the event left the rest of the 
country shaken. The Massachusetts state constitution was widely 
considered the most balanced of the revolutionary charters. If the 
Massachusetts state government could not protect the property of its 
citizens, one of the most fundamental aims of Republican government, 
how could the less balanced state and national governments endure if 
such unrest spread?
  As Minister to France in 1787, Thomas Jefferson dismissed Shays' 
Rebellion. ``A little rebellion now and then is a good thing,'' he 
wrote James Madison on January 30, 1787, ``and as necessary in the 
political world as storms in the physical.'' Madison was hardly 
inclined to agree. As he examined the ``vices of the political system 
of the United States'' in the early months of 1787, he became convinced 
that the agenda of the upcoming convention should not be limited to the 
failings of the Articles. The time had come to undo the damages caused 
by the excesses of republicanism.
  But, consider for a moment the odds that were against the delegates 
in crafting a workable government. The record of reform was hardly 
encouraging. The states had taken more than three years to ratify the 
Articles, and in the six years since, not one amendment that Congress 
had proposed to the states had been approved. There was also the 
question of whether the Congress should endorse the Philadelphia 
convention. By 1787, its reputation had fallen so low that it was 
unclear whether its endorsement would aid or kill reform efforts. 
Moreover, the convention had to attract an impressive array of legal 
minds to lend validity to whatever document would be produced. Yet, 
there was little guarantee that the convention would muster such 
persons. Even George Washington, who among all others probably most 
recognized the need for the convention, was hesitant to attend for fear 
that his reputation would suffer if the convention should fail. He 
accepted the invitation reluctantly at the urging of Madison, and even 
then, not until the last minute. But, perhaps more importantly, the 
Articles never provided for such a device of amending the 
Confederation, which caused many in Congress to question the propriety 
of the convention. After all, if the conventional delegates did produce 
a revised document, would it be considered law if the Articles never 
allowed for a constitutional convention in the first place?
  In the face of these obstacles, any proposal put forth by the Framers 
would have to be more complex than that of simply shifting the powers 
of taxation and regulation of commerce from the state governments to a 
national government. Because the state governments were already 
entrenched, it was unlikely that the states would agree to the creation 
of a powerful central government at the expense of their self-governing 
authority. Granting the states specific self-governing powers and 
rights was not only politically expedient, but also served the Framers' 
intent to limit the central government's authority. The sharing of 
power between the states and the national government was one more 
structural check in what was to be an elaborate governmental scheme of 
checks and balances. The Framers further decentralized authority 
through a separation of powers, which distributed the business of 
government among three separate branches.
  This ensured against the creation of too strong a national government 
capable of overpowering the individual state governments.
  In a seemingly paradoxical fashion, governmental powers and 
responsibilities were also intentionally shared among the separate 
branches. Congressional authority to enact laws can be checked by an 
executive veto, which in turn can be overridden by a two-thirds 
majority vote in both houses; the President serves as commander-in-
chief, but only the Congress has the authority to raise and support an 
army, and to declare war; the President has the power to appoint 
ambassadors, other public ministers and consuls, judges of the Supreme 
Court, and all other officers of the United States, but only by and 
with the advice and consent of the Senate; and the Supreme Court has 
final authority to strike down both legislative and presidential acts 
as unconstitutional. This balancing of power is intended to ensure that 
no one branch grows too powerful and dominates the national government.
  What happened in Philadelphia was then truly remarkable. Committed at 
first to limiting executive power by making state legislatures supreme, 
Americans created a constitution that provided for an independent 
executive branch and a balanced government. Committed at first to 
preserving the sovereignty of states, Americans drafted a constitution 
that established a national government with authority that was 
independent of the states.
  So each of the two--the National Government and the State 
governments--was supreme in its own sphere and, yet, separate, in a 
sense, and overlapping.
  Doubtful at first that a strong national republic was possible, 
Americans created a strong national republic that still endures.
  ``The real wonder,'' James Madison wrote in Federalist Number 37, 
``is that so many difficulties should have been surmounted, and 
surmounted with a unanimity almost as unprecedented as it must have 
been unexpected. It is impossible for any man of candor to reflect on 
this circumstance without partaking of the astonishment. It is 
impossible for the man of pious reflection not to perceive in it a 
finger of that Almighty hand which has been so frequently and signally 
extended to our relief in the critical stages of the revolution.''
  There is a story, often told, that upon exiting the Constitutional 
Convention Benjamin Franklin was approached by a group of citizens 
asking what sort of government the delegates had created. ``A republic, 
Madame,'' he answered, ``if you can keep it.'' Characteristic of 
Franklin's statements, we should not allow the brevity of his response 
to undervalue its essential meaning: it is not enough that democratic 
republics are founded on the consent of the people; they are also 
absolutely dependent upon the active and informed involvement of the 
people.
  Yet, opinion polls show that Americans have either never read the 
Constitution or have forgotten most of what they learned about it in 
school. The Constitution and the Declaration of Independence are the 
common bonds that unite the nation because they articulate our 
political, moral, and spiritual values. To a degree Americans recognize 
the ideologies of liberty and freedom that are contained in these 
documents, but we should also recognize that these beliefs were shaped 
by the political climate in large part in which they occurred. Too 
often these ideals are used as catch phrases to describe the founding 
documents which can obscure the complex political processes that 
produced both the Declaration of Independence and the Constitution. The 
post-Revolutionary era provides Americans with perhaps the clearest 
examples of why the Constitution is so vital to the stability of the 
country and the protection of our most basic freedoms. It is critical 
that we reaffirm our knowledge of these events to preserve, in 
Madison's own words, ``. . . that veneration which time bestows on 
everything, and without which perhaps the wisest and freest governments

[[Page S9122]]

would not possess the requisite stability.''
  Those words can be found in the Federalist No. 49, by James Madison.
  In closing, let me refer back to something I said earlier when I said 
that it is not enough that democratic republics are founded on the 
consent of the people; they are absolutely dependent upon the active 
and informed involvement of the people.
  In this regard, the American people will shortly be called upon to be 
involved. There is a national election coming. Elections will occur in 
every State. I think it is very appropriate, if I may, to state those 
words again.
  It is not enough that democratic republics are founded on the consent 
of the people; they are also absolutely dependent upon the active and 
informed involvement of the people.
  It is a disgrace, if we look at the record of the voter turnout in 
this country, the American people, it seems to me, are less and less 
involved when it comes to voting. Fewer and fewer of the people 
exercise this right--this duty. This is a foremost duty of American 
citizenship. Fewer people are involved.
  I close with this reference to history.
  In 1776, in September, George Washington asked for a volunteer to go 
behind the British lines and draw pictures and develop information with 
respect to the placement of the British guns, their breastworks, their 
fortifications, and to bring that information back to the American 
lines. A young man by the name of Nathan Hale responded to the call. He 
was a schoolteacher. He went behind the British lines. This was an 
exceedingly dangerous assignment.
  Nathan Hale achieved his purpose, but on the night before he was to 
return to the American lines, he was discovered by the British to be an 
American spy. The papers, the drawings, were upon his person. The next 
morning, September 22, 1776--224 years ago today--he stood before the 
hastily built gallows. He saw just before him the crude wooden coffin 
in which his body would soon be laid. He asked for a Bible. The request 
was denied. Whether or not the British at that point had a Bible near, 
we don't know. But there he stood with his hands tied behind him.
  The British commander, whose name was Cunningham, asked Hale if he 
had anything to say. His last words, which are remembered by every 
schoolchild in America who has had the opportunity to read American 
history, were these: I only regret that I have but one life to lose for 
my country.
  The British commander said: ``String the rebel up''.
  Nathan Hale gave his one life for his country.
  My final question is this: If Nathan Hale was willing to give his 
only life--all he had--for his country, why is every American, 
Republican or Democrat or Independent, not willing to give his one vote 
for his country?
  I yield the floor.

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