The Declaration of 1776 recognized as the first principle of our independence that all men are created equal.

For our Founding Fathers the principles of the Declaration were established by "the Laws of Nature and of Nature's God." That all men are endowed by their Creator with certain unalienable rights; that among these are life, liberty and the pursuit of happiness; that to secure these rights governments are instituted among men, deriving their just powers from the consent of the governed-these "truths" were, in Jefferson's earlier draft, declared to be "sacred and undeniable." Benjamin Franklin amended the draft to read simply, "We hold these truths to be self-evident."

Insofar as was deemed practicable, the Constitution embodied these truths in the first principle of our self-government, that We the People rule. But to achieve the more perfect union of 1787 the framers of the Constitution found it necessary to accept human slavery. For purposes of apportioning representation in Congress a slave was considered three-fifths of a person, and Congress was not to have the power to prohibit the importation of slaves until 1808. This contradiction between the sacred and self-evident truths of 1776 and the compromise of 1787 so shocked Virginia's delegate George Mason that he refused to sign the Constitution and, with Patrick Henry, led the fight in Virginia against its ratification.

The gap between the great American promise of equal opportunity and equal justice under law and its at times startlingly inadequate fulfillment in practice has thus been a major-and probably a creative-factor in American history from the beginning of the Nation. The conflict between those who would extend the republican principle to all men and those who would limit it to some men or who would delay its application has produced a tension in the minds and hearts of Americans and in American laws that is with us still.

The grand design of the Constitution was to provide machinery through which such conflicts could be resolved by reflection and choice, with the consent of the governed. Because Madison, an opponent of slavery, decided that the Constitution provided adequate machin

'As Chief Justice Marshall said for the Court in McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819), after noting that the Constitution "was submitted to the people" for ratification, “The government proceeds directly from the people; is 'ordained and established' in the name of the people *** (and) is, emphatically, and truly, a government of the people." See also Corwin, Constitution of the United States of America, Sen. Doc. No. 170, 82d Congress, 2d Sess. (1952), p. 59.

To the New York advocate of the "rich and the well born" as much as to Virginia's democrats the Constitution meant self-government. In The Federalist No. 1 Alexander Hamilton said that "it seems to have been reserved to the people of this country by their conduct and example to decide the important question whether societies of men are really capable or not of establishing good government from reflection and choice or whether they are forever destined to depend for their political constitutions on accident and force."

ery to do this, he became one of its foremost champions in writing many of The Federalist papers. He urged the people of Virginia and other States to ratify the Constitution and then seek to perfect it through constitutional amendment.

Many Americans, including Jefferson and Mason, were unhappy that no specific bill of rights had been included in the Constitution. But the framers were aware that 8 of the 13 States had already adopted bills of rights and that all of them had a republican form of government.5 Because the Federal Government was itself to be republican in form and limited in its powers and because its constituent parts were assumed to be republican, the majority of framers saw no necessity for an additional Federal bill of rights.

This assumption of the republican nature of State constitutions and of the equal justice provided by the common law was to a large extent justified. As James Bryce reminds us, the framers of the Constitution were fitting a keystone in an almost completed structure. The federating States were not only little republics in themselves, but inside most of them were free cities and townships already operating on democratic lines. These principles were embodied in the covenant on the Mayflower in 1620, in other social contracts of the early colonists, and in the New England town meetings that gave birth on this continent to the idea of universal suffrage. The historical roots of our civil rights go even deeper. The town system of local selfgovernment, like most of our rights and liberties, stems from the evolution of Anglo-Saxon common law and from early English revolutions. With the American Revolution, says De Tocqueville, "the doctrine of the sovereignty of the people came out of the townships and took possession of the state."7

Recognition of the right to equal protection of the laws or equal justice under law is at least as old as the right to vote. In Magna Carta the cities, boroughs, and towns were not only promised their

N. T. Dowling, Cases on Constitutional Law, 1950, pp. 48-49. The Virginia Bill of Rights, adopted 3 weeks before the Declaration of Independence affirmed "as the basis and foundation of government"

"That elections of members to serve as representatives of the people in assembly, ought to be free; and that all men having sufficient evidence of permanent common interest with, and attachment to the community, have the right of suffrage, and cannot be taxed or deprived of their property for public uses, without their own consent, or that of their representatives so elected, nor bound by any law to which they have not, in like manner, assented for the public good."

Hamilton wrote in The Federalist No. 84 that bills of rights, which originated as "stipulations between kings and their subjects", had "no application to the constitutions professedly founded upon the power of the people, and executed by their immediate representatives and servants. Here, in strictness, the people surrender nothing; and as they retain everything, they have no need of particular reservations."

"De Tocqueville, op. cit. supra note 1, at 56, 31, 59. Bryce, The American Commonwealth.

liberties, but King John promised that "to none will we sell, deny, or delay right or justice."

The assumption that State and local governments would secure and protect the civil rights of citizens of the United States, including the right to vote and the right to equal justice, is reflected in a number of provisions of the Constitution. When the Founding Fathers provided that the Federal House of Representatives "shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature," it was understood that each State had such an elected legislature and that, with certain property and other restrictions, the people were in each State the electors."

To make sure that all States would follow the principle of government by the consent of the governed, the Founding Fathers provided that "The United States shall guarantee to every State in this Union a Republican Form of Government ***" And as an additional safeguard they provided that

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations * * *20

This is not to suggest that the right to vote has ever been unqualified or that the Constitution intended to make popular suffrage in free elections the only principle of our government. On the contrary, the President was to be selected indirectly by an electoral college, the Senate was selected by State Legislatures, and the members of the Supreme Court were not to be elected at all but appointed by the President. It was understood then as now that States could establish reasonable restrictions on the right to vote. But the people, so defined

While in reality Magna Carta was a treaty between feudal barons and royal power, at the hands of Sir Edward Coke and other common law lawyers this contract with the King became a symbol of popular sovereignty and of the idea of the natural right to equal justice. The symbol has been more important than the reality. The Constitution of the United States was written, says Plucknett, "by men who had Magna Carta and Coke Upon Littleton before their eyes." Plucknett, A Concise History of the Common Law, 4th Ed., pp. 22-25.

Art. I, sec. 2. The same assumption of a representative State legislature was the basis for the selection of Senators. Art. I, sec. 3. The Seventeenth Amendment provided for the direct election of Senators "by the people" with the same qualifications for electors as those of the House of Representatives.

10 Art. IV, sec. 4; art I, sec. 4. Emphasis added. While the Supreme Court has considered the guarantee to every State of a republican form of government a political question not subject to judicial enforcement, it is clear that if a State should violate the basic elective principle of republican government Congress could remedy this in part by making or altering the regulations for the elections of Senators and Representatives so as to protect the right of the people to vote.

and duly limited, do by the terms of the Constitution have a right to vote."

Similarly, implicit in the concept of republican government and the rule of law is the principle of equal protection of the laws. Since this was embodied in the common law in effect in the States, and since even the King had been held to be subject to the common law, it was assumed to be secured in States that had just won their independence in the name of the principles championed by Lord Coke and John Locke." Thus, the Founding Fathers were further establishing the civil right to equal justice when they provided in article IV, section 2, that: "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States."

Despite these constitutional provisions, the demand for an explicit bill of rights continued. Several States ratified only after General Washington suggested that the desired guarantees be added by amendment.13 Strong southern pressure, led by Jefferson, resulted in the approval of the first 10 civil rights amendments by the First Congress and their prompt ratification in 1791.

Even with the Bill of Rights the gap between the words of the Declaration of Independence and the political realization remained very wide. The Bill of Rights was construed to limit only the actions of the Federal Government-not the governments of the States. Not only were Negroes excluded from the franchise in most States, but the machinery for registering the consent of the governed also excluded approximately half of those governed-all women. So established were these disqualifications by reason of race, color, or sex that an observer as sensitive as De Tocqueville could write in 1835 that "the principle of the sovereignty of the people has acquired in the United States all the practical development that the imagination can conceive."

99 14

De Tocqueville's imagination here fell short of his own logic. After noting the extension of republican principles throughout the American body politic in the first half century of constitutional rule, largely

11 In the Dred Scott decision, Chief Justice Taney declared that: "The words 'people of the United States' and 'citizens' are synonymous terms, and mean the same thing. They both describe the political body who, according to our republican institutions, form the sovereignty, and who hold the power and conduct the Government through their representatives. They are what we familiarly call the 'sovereign people,' and every citizen is one of this people, and a constituent member of this sovereignty." 19 How. 393, 404 (1857)

12 Dr. Bonham's Case, 8 Coke's Rep. 114a (1610); Case of Proclamations, 12 Coke's Rep. 74 (1610); Locke, Of Civil Government, Second Essay (1689). See James Otis, Argument Against Writs of Assistance (1761). The Fundamental Constitutions of Carolina (16691670) were actually drafted in England by Locke. Dowling, Cases on Constitutional Law, p. 36.

13 Corwin, op. cit. supra note 3, at 750, 14. 14 De Tocqueville, op. cit. supra note 1, at 57.

through State action in lowering or ending property qualifications for voting, De Tocqueville had concluded that "the further electoral rights are extended, the greater is the need for extending them; for after each concession the strength of the democracy increases, and its demands increase with its strength *** and no stop can be made short of universal suffrage." 15

However, there were many halts along the way. To the end of his life the author of the Declaration was deeply concerned about the distance between the nation's practice and its solemnly declared goal. Of the nation he loved and the slavery that he hated, Jefferson wrote: "And can the liberties of a nation be thought secure when we have removed their only firm basis, a conviction in the minds of the people that these liberties are of the gift of God? That they are not to be violated but with his wrath? Indeed I tremble for my country when I reflect that God is just; that his justice cannot sleep forever." He was not satisfied with the scope of the Bill of Rights but approved it on the ground that "Half a loaf is better than no bread." 16

The bread of full freedom, human dignity, universal suffrage and equality of opportunity has always been the American dream. It has stirred each generation of Americans to work for its fulfillment. Knowing of this dream, great waves of immigrants sailed to these shores, speaking foreign languages, following different customs, practicing different religions. Under the Constitution they became part of the American electorate, part of the sovereign people. Often in the face of discrimination, they advanced to first-class citizenship with the equal protection of the laws.

In this sense the Constitution and the laws of the land have played a large part in the making of Americans. The Founding Fathers believed that self-government would teach men how to be free. America, the world was told, is producing a new man. And these new men, with their civil rights under the Constitution, have in turn made America.

Only once has the American constitutional process failed, at least for a time. Human slavery proved too severe a test for the peaceful processes of persuasion. The Dred Scott decision, in which a divided Supreme Court said that Negroes were not "people of the United States" and could not claim or be granted the privileges and immunities of citizens of the United States, drew the lines of civil war." On the one hand, slavery was so repugnant to the religious and political principles of many Americans that the abolitionists refused

15 Ibid.

16 Thomas Jefferson on Democracy, S. K. Padover, ed., Pelican Edition, pp. 99, 50. "Dred Scott v. Sandford, 19 How. 393 (1857).