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Basic Principles of Texas Government Michael S. Iachetta

All Rights Reserved, 2019 “Tolerance … is learned in discussion, and, as history shows, is only so learned. In all customary societies bigotry is the ruling principle. In rude places to this day anyone who says anything new is looked on with suspicion, and is persecuted by opinion if not injured by penalty. One of the greatest pains to human nature is the pain of a new idea…. It makes you think that, after all, your favourite notions may be wrong, your firmest beliefs ill-founded…. Naturally, therefore, common men hate a new idea, and are disposed more or less to ill-treat the original man who brings it” (Walter Bagehot, Physics and Politics, 1869). “No man who has the truth to tell and the power to tell it can long remain hiding it from fear or even from despair without ignominy. To release the truth against whatever odds, even if so doing can no longer help the Commonwealth, is a necessity for the soul” (Hilaire Belloc, The Free Press, 1918).

Introduction: The Basic Rights of Human Beings

Activity 1: The Basic Rights of Human Beings “Every Anglo-Texan was born with the notion he possessed unalienable rights” (T.R. Fehrenbach, Lone Star, 189).

A. Based on this statement, what is the goal of human life? What basic rights do people have? What is the connection between these basic rights and the goal of human life? “All men are born free and equal, and have certain natural, essential, and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing, and protecting property; in fine, that of seeking and obtaining their safety and happiness” (Massachusetts Declaration of Rights, March 2, 1780).

B. Based on this statement, how many basic rights do people have? Why these particular rights? Why this number? “Among the natural rights of the Colonists are these: First, a right to life; Secondly, to liberty; Thirdly, to property; together with the right to support and defend them in the best manner they can. These are evident branches of … the duty of self-preservation, commonly called the first law of nature” (Samuel Adams, The Rights of the Colonists, November 20, 1772).

C. Based on this statement, who or what decides which basic rights human beings have? What are “the immutable laws of nature”? “That the inhabitants of the English Colonies in North America, by the immutable laws of nature, the principles of the English Constitution, and the several charters or compacts … are entitled to life, liberty, and property, & they have never ceded to any sovereign power whatever, a right to dispose of either without their consent” (Declaration and Resolves of the First Continental Congress, October 14, 1774). D. Based on this statement, how many basic rights do people have? What does the word “liberty” mean, in the context of our three basic rights? “[The absolute rights of individuals] may be reduced to three principal or primary articles... I. The right of personal security [consisting] in a person’s legal and uninterrupted enjoyment (that is, use and possession) of his life, his limbs... II. ... The personal liberty of individuals ... [consisting] in the power of locomotion, of changing situations or moving one’s person to whatsoever place one’s own inclination may direct, without imprisonment, or restraint, unless by due course of law.... III. The third absolute right, inherent in every Englishman ... of property: which consists in the free use, enjoyment and disposal of all his acquisitions, without any control or diminution, save only by the laws of the land” (Sir William Blackstone, Commentaries on the Laws of England, 1765, Book I, Chapter 1).

For the rights of women, see: “FELONIOUS HOMICIDE is … the killing of a human creature, of any age or sex, without justification or excuse” (William Blackstone, Commentaries on the Laws of England, Book 4, Chapter 14, 1765-1769).

For the rights of Africans, see: Upon these principles the law of England abhors, and will not endure the existence of, slavery within this nation … And now it is laid down, that a slave or negro, the instant he lands in England, becomes a freeman; that is, the law will protect him in the enjoyment of his person, his liberty, and his property” (William Blackstone, Commentaries on the Laws of England, Volume I, 411-413, 1766).

For the authority of William Blackstone, see:

1. “We must turn to Blackstone’s Commentaries on the Laws of England, a work which as Madison said was ‘in every man’s hand’ and the one the Framers turned to when determining just what legal phrases meant. (Next to the Bible and Montesquieu, Blackstone was the most frequently quoted source in American political writing from 1760 to 1800.)” (Forrest McDonald, Testimony before the House Judiciary Committee Subcommittee on the Constitution Hearing on the Background and History of Impeachment, November 9, 1998)

2. “Sir William Blackstone[’s] Commentaries on the Laws of England not only provided a definitive summary of the common law but was also a primary legal authority for 18th and 19th century American lawyers” (U.S. Supreme Court in Washington v. Glucksberg, 1997)

For a definition of civil rights, see: “What are civil rights? I understand civil rights to be simply the absolute rights of individuals, such as the right of personal security, the right of personal liberty, and the right to acquire and enjoy property’ (Kent’s Commentaries).” (James Wilson, Chairman of the House Judiciary Committee and House Manager of the Civil Rights Act of 1866, March 1, 1866, Congressional Globe, 1117)

Features of the Texas/American System of Government that

Protects Against the Evil Side of People

Protective Barrier Number 1A/1B:

Evil Side of People/The Law of Nature

Activity 2: The Evil Side of People; the Law of Nature Establishes a Clear Definition of Right and Wrong “It is always to the advantage of the wealthy to deny general conceptions of right and wrong” (Hilaire Belloc, Europe and the Faith, 1920). A. Based on these statements, what are people like? Why does this make it difficult for people to obtain the goal of human life?

• “What is government itself but the greatest of all reflections on human nature? If men were angels, no government would be necessary” (James Madison, Federalist 51, February 6, 1788).

• “Why has government been instituted at all? Because the passions of men will not

conform to the dictates of reason and justice without constraint” (Alexander Hamilton, Federalist 15, December 1, 1787).

B. Based on this statement, what is the law of nature? How does it make it possible for people to achieve the goal of human life? “The supreme being gave existence to man, together with the means of preserving and beatifying that existence. He endowed him with rational faculties, by the help of which, to discern and pursue such things, as were consistent with his duty and interest, and invested him with an

inviolable right to personal liberty, and personal safety. Hence, in a state of nature, no man had any moral power to deprive another of his life, limbs, property or liberty” (Alexander Hamilton, “The Farmer Refuted,” February 23, 1775). C. Based on this statement, what is the law of nature? How does it protect people from the evil side of people? “There is a supreme intelligence, who rules the world, and has established laws to regulate the actions of his creatures.... The deity, from the relations, we stand in, to himself and to each other, has constituted an eternal and immutable law, which is, indispensably, obligatory upon all mankind, prior to any human institution whatever. This is what is called the law of nature…. Upon this law, depend the natural rights of mankind.” (Alexander Hamilton, “The Farmer Refuted,” February 23, 1775). D. Based on this statement, what is the law of nature? How does it make it possible for people to achieve the goal of human life? “This law of nature, being coeval with mankind, and dictated by God himself, is, of course, superior in obligation to any other. It is binding over all the globe, in all countries, and at all times. No human laws are of any validity, if contrary to this; and such of them as are valid, derive all their authority, mediately, or immediately, from this original…. The principal aim of society is to protect individuals in the enjoyment of those absolute rights, which were vested in them by the immutable laws of nature” (William Blackstone, Commentaries on the Law of England, Vol. 1, Introduction, Sec. 2 and Vol. 1, Ch. 2, quoted by Alexander Hamilton in “The Farmer Refuted,” February 23, 1775).

Protective Barrier Number 2:

Government

Activity 3: The Purpose of Government is to Protect the Person and Property of Citizens from the Evil Side of People “We hold these truths to be self-evident, that all men are created equal, that they 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…” (Declaration of Independence, 1776). A. Based on these statements, what would life be like if there were no governments? How would the lack of government affect the ability of people to achieve the goal of human life?

• “During the time men live without a common Power to keep them all in awe, they are in that condition which is called Warre…. In such condition, there is no place for Industry; because the fruit thereof is uncertain; and consequently no Culture of the Earth; no Navigation … no commodious Building… no Arts; no Letters … and which is worst of all, continuall feare and danger of violent death; and the life of man, solitary, poor, nasty, brutish, and short” (Thomas Hobbes, Leviathan, 1651, Part I, Chapter 13).

• “If man in the state of nature be so free … why will he part with his freedom? Why will

he … subject himself to the dominion and control of any other power? To which it is obvious to answer, that … the enjoyment of the property he has in this state is very unsafe, very unsecure” (John Locke, Second Treatise on Government, Ch. 9, 1689-1690).

B. Based on these statements, what is the purpose of government? What is the connection between government and the possibility of people achieving the goal of human life? “What was the primary and the principal object in the institution of government? Was it—I speak of the primary and principal object—was it to acquire new rights by a human establishment? Or was it, by a human establishment, to acquire a new security for the possession or the recovery of those rights, to the enjoyment or acquisition of which we were previously entitled by the immediate gift, or by the unerring law, of our all-wise and all-beneficent Creator?” (James Wilson, Lectures on Law, “Of the Natural Rights of Individuals,” 1790-91). C. Based on these statements, what is the purpose of government? What is the connection between government and the possibility of people achieving the goal of human life?

• “The principal aim of society is to protect individuals in the enjoyment of those absolute rights [the right of personal security, the right of personal liberty; and the right of private property], which were vested in them by the immutable laws of nature…” (Sir William Blackstone, Commentaries on the Laws of England, 1765, Book I, Chapter 1).

• “[The insecurity of rights without government] makes [man] willing … to join in

society with others … for the mutual preservation of their lives, liberties, and estates…. The great and chief end, therefore, of men’s uniting into commonwealths, and putting themselves under government, is the preservation of their [lives, liberties, and estates]” (John Locke, Second Treatise on Government, Ch. 9, 1689-1690).

D. Based on this statement, what is “liberty”? What is the connection between “liberty” and the goal of human life? “In all the states of created beings capable of laws, where there is no law, there is no freedom: for liberty is to be free from restraint and violence from others; which cannot be, where there is no law…” (John Locke, Second Treatise on Government, 1689-1690, Chapter 6).

Protective Barrier Number 3: Fathers as Disciplinarians and Protectors; Self-Defense

Reader Discretion Advised: The belief that this is a necessary barrier that protects us from the evil side of people is no longer the dominant view, and it is for you to decide whether or not this belief still remains valid today.

Activity 4: The Political Purpose of the Family is to Protect the Person and Property of Citizens from the Evil Side of People “--He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people” (Declaration of Independence, 1776) “[We declare] that no free government, or the blessings of liberty, can be preserved to any people, but by a firm adherence to justice, moderation, temperance, frugality, and virtue, and by frequent recurrence to fundamental principles” (Virginia Declaration of Rights and Constitution, 12 and 29 June 1776). “The simultaneous rise of out-of-wedlock births and other forms of social/economic distress such as crime, drug abuse, and poverty … [is] well documented by Anderson [1990], Wilson [1987], and others…). Rising out-of-wedlock birthrates are of social policy concern because children reared in single-parent households are more likely to be impoverished and to experience difficulties in later life. (A substantial literature documents that single parenthood results in a variety of adverse consequences for children—see, for example, Manski, Sandefur, McLanahan, and Powers [1992]).” Source: Akerlof, Yellen, and Katz, “An Analysis of Out-Of-Wedlock Childbearing in the United States,” The Quarterly Journal of Economics, May, 1996. A. Based on this statement, how does the traditional family make person and property more secure? What is the connection between the family and obtaining the goal of human life?

A further consideration is, that in the human species the young need not only bodily nutrition, as animals do, but also the training of the soul. Other animals have their natural instincts (suas prudentias) to provide for themselves: but man lives by reason, which [read quam] takes the experience of a long time to arrive at discretion. Hence children need instruction by the confirmed experience of their parents: nor are they capable of such instruction as soon as they are born, but after a long time, the time in fact taken to arrive at the years of discretion. For this instruction again a long time is needed; and then moreover, because of the assaults of passion, whereby the judgement of prudence is thwarted, there is need not of instruction only, but also of

repression (Thomas Aquinas, Summa Contra Gentiles, Book 3, Ch. 122, tr. Joseph Rickaby, S.J.). .

B. Based on this statement, how does the traditional family make person and property more secure? What is the role of men? What is the connection between the family and obtaining the goal of human life?

For [the] purpose [of repression] the woman by herself is not competent, but at this point especially there is requisite the concurrence of the man, in whom there is at once reason more perfect to instruct, and force more potent to chastise. Therefore in the human race the advancement of the young in good must last, not for a short time, as in birds, but for a long period of life. Hence, whereas it is necessary in all animals for the male to stand by the female for such time as the father's concurrence is requisite for bringing up of the progeny, it is natural for man to be tied to the society of one fixed woman for a long period, not a short one. This social tie we call marriage. Marriage then is natural to man, and an irregular connexion outside of marriage is contrary to the good of man; and therefore fornication must be sinful” (Thomas Aquinas, Summa Contra Gentiles, Book 3, Ch. 122, tr. Joseph Rickaby, S.J.).

C. Based on these statements, how does the traditional family make person and property more secure? What is the role of men? What is the connection between the family and obtaining the goal of human life?

• “THE duty of parents to provide for the maintenance of their children is a principle of natural law … for they would be in the highest manner injurious to their issue, if they only gave the children life, that they might afterwards see them perish…. And the president Montesquieu has a very just observation upon this head: that the establishment of marriage in all civilized states is built on this natural obligation of the father to provide for his children…. The main end and design of marriage therefore [is] to ascertain and fix upon some certain person, to whom the protection … of the children should belong” (William Blackstone, Commentaries on the Laws of England, Book I, Chapter 16, 1765- 1769).

• “Marriage … secures the peace of society, by cutting off a great source of contention, by

assigning to one man the exclusive right to one woman” (Joseph Story, “Natural Law, American Encyclopedia, 1832).

D. Based on this statement, how does the traditional family make person and property more secure? What is the role of men? What is the connection between the family and obtaining the goal of human life? “THE defence of one’s self, or the mutual and reciprocal defence of such as stand in the relations of husband and wife, parent and child, master and servant. In these cases, if the party himself, or any of these his relations, be forcibly attacked in his person or property, it is lawful for him to repel force by force; and the breach of the peace, which happens, is chargeable upon him only who began the affray…. Self-defence therefore as it is justly called the primary law of nature, so

it is not, neither can it be in fact, taken away by the law of society” (Sir William Blackstone, Commentaries on the Laws of England, 1765, Book III, Chapter 1). Note: “The right of the citizens to keep and bear arms has justly been considered as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them.” (Joseph Story, Supreme Court Justice, Commentaries on the Constitution of the United States, 1833) For more on discipline, see: “The formidable power of a Roman father is unknown to the common law. But it vests in the parent such authority as is conducive to the advantage of the child. When it is necessary—and a real necessity exists much more rarely than is often imagined—a moderate chastening may be administered; but every milder means should be previously used. Part of his authority he may delegate to the person intrusted with his child’s education; that person acts then in the place, and he ought to act with the disposition, of a parent. The legal power of a father ceases, when the child attains the age of twenty one years (James Wilson, Lectures on Law, Part 2, Chapter XII). For more on the family, see: “The … disorganization of the modern family is … simply an erosion of its natural authority, the consequence … of the absorption of its functions by other bodies, chiefly the state” (Robert A. Nisbet, Quest for Community, xiv). “Marriage is an institution, which may properly be deemed to arise from the law of nature. It promotes the private comfort of both parties, and especially of the female sex. It tends to the procreation of the greatest number of healthy citizens, and to their proper maintenance and education. It secures the peace of society, by cutting off a great source of contention, by assigning to one man the exclusive right to one woman. It promotes the cause of sound morals, by cultivating domestic affections and virtues. It distributes the whole of society into families, and creates a permanent union of interests, and a mutual guardianship of the same. It binds children by indissoluble ties, and adds new securities to the good order of society, by connecting the happiness of the whole family with the good behavior of all. It furnishes additional motives for honest industry and economy in private life, and for a deeper love of the country of our birth” (Joseph Story, “Natural Law, American Encyclopedia, 1832).

Texas History from the Perspective of Liberty, Part 1

Activity 5: Based on T.R. Fehrenbach, Lone Star (See PowerPoint slides for this activity on eCampus)

A. Identify examples of injustice (violating person or property) or justice (securing or defending person or property) in this passage. Explain why these actions are unjust or just. B. Identify examples of people acquiring land justly (without violating anyone else’s rights) or unjustly (by violating the rights of others). Explain why these are examples of justly or unjustly acquiring land. C. Identify examples of people obtaining or failing to obtain happiness in this passage (for example, providing themselves with adequate food, shelter, and clothing). Explain why these are examples of obtaining or not obtaining happiness. D. Identify examples of just or unjust social organizations (systems that exist for the benefit of all, in which no person or group benefits from the violation of the person and property or possibility of happiness of any other person or group, as opposed to systems that exist for the benefit of a few at the expense of the person and property or possibility of happiness of everyone else; or vice-versa).

Activity 6: T.R. Fehrenbach, Lone Star Based on T.R. Fehrenbach, Lone Star (See PowerPoint slides for this activity on eCampus) A. Identify examples of injustice (violating person or property) or justice (securing or defending person or property) in this passage. Explain why these actions are unjust or just. B. Identify examples of people acquiring land justly (without violating anyone else’s rights) or unjustly (by violating the rights of others). Explain why these are examples of justly or unjustly acquiring land. C. Identify examples of people obtaining or failing to obtain happiness in this passage (for example, providing themselves with adequate food, shelter, and clothing). Explain why these are examples of obtaining or not obtaining happiness. D. Identify examples of just or unjust social organizations (systems that exist for the benefit of all, in which no person or group benefits from the violation of the person and property or possibility of happiness of any other person or group, as opposed to systems that exist for the benefit of a few at the expense of the person and property or possibility of happiness of everyone else; or vice-versa).

Protective Barrier Number 4: Religion

Activity 7: The Political Purpose of Religion is to Protect the Person and Property of Citizens from the Evil Side of People “A frequent recurrence to the fundamental principles of the Constitution, and a constant adherence to those of piety, justice, moderation, temperance, industry, and frugality are absolutely necessary, to preserve the advantages of liberty, and to maintain free government” (Massachusetts Constitution of 1780). “The belief in a God All Powerful wise & good, is so essential to the moral order of the World & to the happiness of man, that arguments which enforce it cannot be drawn from too many sources nor adapted with too much solicitude to the different characters & capacities to be impressed with it” (James Madison to Frederick Beasley, November 20, 1825). “Next to the Bible and Montesquieu, Blackstone was the most frequently quoted source in American political writing from 1760 to 1800.” (Forrest McDonald, Testimony before the House Judiciary Committee Subcommittee on the Constitution Hearing on the Background and History of Impeachment, November 9, 1998). “Our liberties do not come from charters; for these are only the declaration of pre-existing rights. They do not depend on parchments or seals; but come from the King of Kings and the Lord of all the earth” (John Dickinson, Chairman of the Committee for the Declaration of Independence, 1776 in C. Herman Pritchett, The American Constitution, McGraw-Hill, 1977, p. 2). A. Based on the following statement, how does religion make person and property more secure? What is the connection between religion and people achieving the goal of human life? “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: that considering numbers, nature, and natural means only, a revolution of the wheel of fortune, an exchange of situation, is among possible events: that it may become probable by supernatural interference! The Almighty has no attribute which can take side with us in such a contest” (Thomas Jefferson, Query XVIII, Notes on the State of Virginia). B. Based on the following statement, how does religion make person and property more secure? What is the connection between religion and people achieving the goal of human life?

“Of all the dispositions and habits which lead to political prosperity, Religion and morality are indispensable supports. In vain would that man claim the tribute of Patriotism, who should labour to subvert these great Pillars of human happiness, these firmest props of the duties of Men and citizens. The mere Politician, equally with the pious man ought to respect and to cherish them. A volume could not trace all their connections with private and public felicity. Let it simply be asked where is the security for property, for reputation, for life, if the sense of religious obligation desert the oaths, which are the instruments of investigation in Courts of Justice?” (George Washington, Farewell Address, September 19, 1796. Alexander Hamilton wrote a first draft of this address). C. Based on the following statement, how does religion make person and property more secure? What is the connection between religion and people achieving the goal of human life? “Indeed, the right of a society or government to interfere in matters of religion will hardly be contested by any persons who believe that piety, religion, and morality are intimately connected with the well-being of the state and indispensable to the administrations of civil justice. The promulgation of the great doctrines of religion—the being, and attributes, and providence of one Almighty God; the responsibility to Him for all our actions, founded upon moral accountability; a future state of rewards and punishments; the cultivation of all the personal, social, and benevolent virtues—these never can be a matter of indifference in any well-ordered community. It is, indeed, difficult to conceive how any civilized society can well exist without them” (Joseph Story, A Familiar Exposition of the Constitution of the United States, §442, 1840). D. Based on the following statements, how does religion make person and property more secure? What is the connection between religion and people achieving the goal of human life?

• “I am certain that [all Americans] believe [their religion] is necessary to the maintenance of republican institutions. This opinion does not belong to a class of citizens or to a party, but to the entire nation; one finds it in all ranks” (De Tocqueville, Democracy in America, I.2.9, tr. Michael Iachetta).

• “Religion, morality, and knowledge, being necessary to good government and the

happiness of mankind, schools and the means of education shall forever be encouraged” (Article III of Northwest Ordinance, signed by Washington, Aug. 7, 1789).

• “If we continue to be a happy people, that happiness must be assured by the enacting and

executing of reasonable and wise laws, expressed in the plainest language, and by establishing such modes of education as tend to inculcate in the minds of youth, the feelings and habits of ‘piety, religion and morality,’ and to lead them to the knowledge and love of those truly Republican principles upon which our civil institutions are founded” (Samuel Adams, Address to the Legislature of Massachusetts, 1795)

For more on the role of religion in a free society, see:

1. “And let us with caution indulge the supposition, that morality can be maintained without religion. Whatever may be conceded to the influence of refined education on minds of peculiar structure, reason and experience both forbid us to expect that National morality can prevail in exclusion of religious principle.” [“Does it not require the aid of a generally received and divinely authoritative Religion’ – Hamilton’s draft] (George Washington, Farewell Address, September 19, 1796. Alexander Hamilton wrote a first draft of this address). 2. “The general Principles, on which the Fathers Atchieved Independence were … the general Principles of Christianity … and the general Principles of English and American Liberty…. Those general Principles of Christianity, are as eternal and immutable, as the Existence and Attributes of God; and … those Principles of Liberty, are as unalterable as human Nature and our terrestrial, mundane System” (John Adams to Thomas Jefferson, June 28, 1813). 3. “Cultural Marxism describes the overt erosion of traditional values--the family, community, religious faith, property rights and limited central government--in favor of ... an expansive, all- powerful central state that replaces community, faith and property rights with statist control mechanisms that enforce dependence on the state...” (Charles Hugh Smith, “The Collapse of the Left, January 23, 2017).

Activity 8: Liberty Analysis (Religion) Key question: Which side promotes religion? A. Which side in Engel v. Vitale promotes religion? Why would this side promote this essential feature of liberty? “The respondent Board of Education of Union Free School District No. 9, New Hyde Park, New York, acting in its official capacity under state law, directed the School District's principal to cause the following prayer to be said aloud by each class in the presence of a teacher at the beginning of each school day: Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our Country. This daily procedure was adopted on the recommendation of the State Board of Regents, a governmental agency created by the State Constitution to which the New York Legislature has granted broad supervisory, executive, and legislative powers over the State's public school system” (U.S. Supreme Court, Engel v. Vitale, 1962). Note: Engel is trying to get rid of prayer in public schools. B. Which side in Abbington v. Schempp promotes religion? Why would this side promote this essential feature of liberty? “The Commonwealth of Pennsylvania by law … requires that “At least ten verses from the Holy Bible shall be read, without comment, at the opening of each public school on each school day. Any child shall be excused from such Bible reading, or attending such Bible reading, upon the

written request of his parent or guardian.” The Schempp family, husband and wife and two of their three children, brought suit to enjoin enforcement of the statute, contending that their rights under the Fourteenth Amendment to the Constitution of the United States are, have been, and will continue to be violated unless this statute be declared unconstitutional as violative of these provisions of the First Amendment. They sought to enjoin the appellant school district, wherein the Schempp children attend school, and its officers and the Superintendent of Public Instruction of the Commonwealth from continuing to conduct such readings and recitation of the Lord’s Prayer in the public schools of the district pursuant to the statute” (U.S. Supreme Court, School District of Abington Township, Pennsylvania, et al. v. Schempp et al., 1963). C. Which side in Van Orden v. Perry promotes religion? Why would this side promote this essential feature of liberty? “Among the 21 historical markers and 17 monuments surrounding the Texas State Capitol is a 6- foot-high monolith inscribed with the Ten Commandments. The legislative record illustrates that, after accepting the monument from the Fraternal Order of Eagles--a national social, civic, and patriotic organization--the State selected a site for it based on the recommendation of the state organization that maintains the capitol grounds. Petitioner, an Austin resident who encounters the monument during his frequent visits to those grounds, brought this 42 U. S. C. §1983 suit seeking a declaration that the monument’s placement violates the First Amendment’s Establishment Clause and an injunction requiring its removal. Holding that the monument did not contravene the Clause, the District Court found that the State had a valid secular purpose in recognizing and commending the Eagles for their efforts to reduce juvenile delinquency, and that a reasonable observer, mindful of history, purpose, and context, would not conclude that this passive monument conveyed the message that the State endorsed religion. The Fifth Circuit affirmed. Held: The judgment is affirmed” (U.S. Supreme Court, Van Orden v. Perry, in his official capacity as Governor of Texas and Chairman, State Preservation Board, et al., 2005). D. Which side in Santa Fe Independent School District v. Doe promotes religion? Why would this side promote this essential feature of liberty? “Prior to 1995, a student elected as Santa Fe High School’s student council chaplain delivered a prayer over the public address system before each home varsity football game. Respondents, Mormon and Catholic students or alumni and their mothers, filed a suit challenging this practice and others under the Establishment Clause of the First Amendment. While the suit was pending, petitioner school district (District) adopted a different policy, which authorizes two student elections, the first to determine whether ‘invocations’ should be delivered at games, and the second to select the spokesperson to deliver them. After the students held elections authorizing such prayers and selecting a spokesperson, the District Court entered an order modifying the policy to permit only nonsectarian, nonproselytizing prayer. The Fifth Circuit held that, even as modified by the District Court, the football prayer policy was invalid. Held: The District’s policy permitting student-led, student-initiated prayer at football games violates the Establishment Clause” (U.S. Supreme Court, Santa Fe Independent School District v. Doe, individually and as next friend for her minor children, et al., 2000).

Protective Barrier Number 5: Equality: Government Must Protect the Life, Liberty, and

Property of All Citizens, No Exceptions

Activity 9: Equality and the Security of Person and Property A. Based on these statements, to whom do the rights of person and property belong? Are there any exceptions listed?

• “All men are born free and equal, and have certain natural, essential, and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing, and protecting property; in fine, that of seeking and obtaining their safety and happiness” (Massachusetts Declaration of Rights, March 2, 1780).

• “We hold these truths to be self-evident, that all men are created equal, that they 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….

B. Based on these statements, to whom do the rights of person and property belong? Are there any exceptions listed? Did Texas accept the principle of equality in 1861?

• “Whatever be [Africans’] degree of talent it is no measure of their rights. Because Sir Isaac Newton was superior to others in understanding, he was not therefore lord of the person or property of others” (Thomas Jefferson to Henri Gregoire Washington, February 25, 1809).

• Upon these principles the law of England abhors, and will not endure the existence of,

slavery within this nation … And now it is laid down, that a slave or negro, the instant he lands in England, becomes a freeman; that is, the law will protect him in the enjoyment of his person, his liberty, and his property” (William Blackstone, Commentaries on the Laws of England, Volume I, 411-413, 1766).

• “We hold as undeniable truths that the governments of the various States, and of the confederacy itself, were established exclusively by the white race, for themselves and their posterity; that the African race had no agency in their establishment; that they were rightfully held and regarded as an inferior and dependent race, and in that condition only could their existence in this country be rendered beneficial or tolerable” (Texas Ordinance of Secession, February 2, 1861).

C. Based on this statement, to whom do the right of personal security belong? Are there any exceptions listed?

• “The right of personal security consists in a person’s legal and uninterrupted enjoyment

of his life, his limbs, his body, his health, and his reputation…. Life is the immediate gift of God, a right inherent by nature in every individual; and it begins in contemplation of law as soon as an infant is able to stir in the mother’s womb. For if a woman is quick with child, and by a potion, or otherwise killeth it in her womb; or if any one beat her, whereby the child dieth in her body, and she is delivered of a dead child; this, though not murder, was by the antient law homicide or manslaughter. But at present it is not looked upon in quite so atrocious a light, though it remains a very heinous misdemeanor” (William Blackstone, Commentaries on the Laws of England, Book 1, Chapter 1, 1765- 1769).

Note: “The general punishment of all felonies is the same, namely, by hanging…. [Homicide, mayhem, forcible marriage, rape, and the crime against nature] are all the felonious offenses, more immediately against the personal security of the subject” (William Blackstone, Commentaries on the Laws of England, Book 4, Chapter 15, 1765-1769). Under the common law, a misdemeanor was a crime that carried a punishment less than death.

D. Based on this statement, to whom do the right of personal security belong? Are there any exceptions listed? “FELONIOUS HOMICIDE is … the killing of a human creature, of any age or sex, without justification or excuse. This may be done, either by killing one’s self, or another man…. The law [of England] has ranked [suicide] among the highest crimes, making it a peculiar species of felony, a felony committed on oneself….What punishment can human laws inflict on one who has withdrawn himself from their reach? They can only act upon what he has left behind him, his reputation and fortune: on the former, by an ignominious burial in the highway, with a stake driven through his body; on the latter, by a forfeiture of all his goods and chattels to the king: hoping that his care for either his own reputation, or the welfare of his family, would be some motive to restrain him from so desperate and wicked an act” (William Blackstone, Commentaries on the Laws of England, Book 4, Chapter 14, 1765-1769).

For the text of the Texas abortion statute, see: “If any person shall [perform] an abortion, he shall be confined in the penitentiary not less than two nor more than five years if it be done without her consent, the punishment shall be doubled…. If the death of the mother is occasioned by an abortion so produced or by an attempt to effect the same it is murder…. Nothing in this chapter applies to an abortion procured or attempted by medical advice for the purpose of saving the life of the mother.”

For the question of whether or not government can show preference to one group of citizens over others, see:

Whenever a Government assumes the power of discriminating between the different classes of the community, it becomes, in effect, the arbiter of their prosperity, and exercises a power not contemplated by any intelligent people in delegating their sovereignty to their rulers. It then becomes the great regulator of the profits of every species of industry, and reduces men from a dependence on their own exertions, to a dependence on the caprices of their Government. Governments possess no delegated right to tamper with individual industry a single hair’s- breadth beyond what is essential to protect the rights of person and property.

In the exercise of this power of intermeddling with the private pursuits and individual occupations of the citizen, a Government may at pleasure elevate one class and depress another; it may one day legislate exclusively for the farmer, the next for the mechanic, and the third for the manufacturer, who all thus become the mere puppets of legislative cobbling and tinkering, instead of independent citizens, relying on their own resources for their prosperity. It assumes the functions which belong alone to an overruling Providence, and affects to become the universal dispenser of good and evil (William Leggett, New York Evening Post, Nov. 21, 1834).

Activity 10: Liberty Analysis (Government Protection of Person and Property of All Citizens, No Exceptions) A. Which side in Roe v. Wade would most promote liberty in the sense of living under a government that protects person or property? Why would this side promote this essential goal of liberty? (If this meaning of liberty does not apply to this case, say that it does not apply and explain why it does not apply.) “A pregnant single woman (Roe) brought a class action challenging the constitutionality of the Texas criminal abortion laws, which proscribe procuring or attempting an abortion except on medical advice for the purpose of saving the mother’s life... A three-judge District Court… declared the abortion statutes void as vague and overbroadly infringing those plaintiffs’ Ninth and Fourteenth Amendment rights” (U.S. Supreme Court, Roe et al. v. Wade, District Attorney, 1973). B. Which side in Gonzales v. Oregon would most promote liberty in the sense of living under a government that protects person or property? Why would this side promote this essential goal of liberty? (If this meaning of liberty does not apply to this case, say that it does not apply and explain why it does not apply.) “The Oregon Death With Dignity Act (ODWDA) exempts from civil or criminal liability state- licensed physicians who … dispense or prescribe a lethal dose of drugs upon the request of a terminally ill patient. In 2001, the Attorney General [of the United States] issued an Interpretive Rule … declaring that using controlled substances to assist suicide is not a legitimate medical practice and that dispensing or prescribing them for this purpose is unlawful under the CSA (Federal Controlled Substances Act).” (Gonzales v. Oregon, January 17, 2006)

C. Which side winning in Brown v. Board of Education would most promote liberty in the sense of living under a government that protects person or property? Why would this side winning promote liberty in this sense? (If this meaning of liberty does not apply to this case, say that it does not apply and explain why it does not apply.) “In each of the cases, minors of the Negro race, through their legal representatives, seek the aid of the courts in obtaining admission to the public schools of their community on a nonsegregated basis. In each instance, they had been denied admission to schools attended by white children under laws requiring or permitting segregation according to race. This segregation was alleged to deprive the plaintiffs of the equal protection of the laws under the Fourteenth Amendment” (U.S. Supreme Court, BROWN ET AL. v. BOARD OF EDUCATION OF TOPEKA ET AL., 1954). D. Which side winning in Rasul v. Bush would most promote liberty in the sense of living under a government that protects person or property? Why would this side winning promote liberty in this sense? (If this meaning of liberty does not apply to this case, say that it does not apply and explain why it does not apply.) “Pursuant to Congress' joint resolution authorizing the use of necessary and appropriate force against nations, organizations, or persons that planned, authorized, committed, or aided in the September 11, 2001, al Qaeda terrorist attacks, the President sent Armed Forces into Afghanistan to wage a military campaign against al Qaeda and the Taliban regime that had supported it. Petitioners, 2 Australians and 12 Kuwaitis captured abroad during the hostilities, are being held in military custody at the Guantanamo Bay, Cuba, Naval Base, which the United States occupies under a lease and treaty recognizing Cuba's ultimate sovereignty, but giving this country complete jurisdiction and control for so long as it does not abandon the leased areas. Petitioners filed suits under federal law challenging the legality of their detention, alleging that they had never been combatants against the United States or engaged in terrorist acts, and that they have never been charged with wrongdoing, permitted to consult counsel, or provided access to courts or other tribunals” (U.S. Supreme Court, Rasul v. Bush, 2004).

Texas History from the Perspective of Liberty, Part 2

Activity 11: Based on T.R. Fehrenbach, Lone Star (See PowerPoint slides for this activity on eCampus) A. Identify examples of injustice (violating person or property) or justice (securing or defending person or property) in this passage. Explain why these actions are unjust or just.

B. Identify examples of people acquiring land justly (without violating anyone else’s rights) or unjustly (by violating the rights of others). Explain why these are examples of justly or unjustly acquiring land. C. Identify examples of people obtaining or failing to obtain happiness in this passage (for example, providing themselves with adequate food, shelter, and clothing). Explain why these are examples of obtaining or not obtaining happiness. D. Identify examples of just or unjust social organizations (systems that exist for the benefit of all, in which no person or group benefits from the violation of the person and property or possibility of happiness of any other person or group, as opposed to systems that exist for the benefit of a few at the expense of the person and property or possibility of happiness of everyone else; or vice-versa).

Activity 12: Based on T.R. Fehrenbach, Lone Star (See PowerPoint slides for this activity on eCampus) A. Identify examples of injustice (violating person or property) or justice (securing or defending person or property) in this passage. Explain why these actions are unjust or just. B. Identify examples of people acquiring land justly (without violating anyone else’s rights) or unjustly (by violating the rights of others). Explain why these are examples of justly or unjustly acquiring land. C. Identify examples of people obtaining or failing to obtain happiness in this passage (for example, providing themselves with adequate food, shelter, and clothing). Explain why these are examples of obtaining or not obtaining happiness. D. Identify examples of just or unjust social organizations (systems that exist for the benefit of all, in which no person or group benefits from the violation of the person and property or possibility of happiness of any other person or group, as opposed to systems that exist for the benefit of a few at the expense of the person and property or possibility of happiness of everyone else; or vice-versa).

Not Being Harmed By the Evil Side of Government: Living under a government that does not harm its citizens—

that is, does not deprive its citizens of life, liberty, or property without due process of law

Activity 13: Liberty as living under a government that does not harm us (in our person and property) “Government is not reason, it is not eloquence; it is force. Like fire, it is a dangerous servant and a fearsome master” (Attributed to George Washington, January 7, 1790, allegedly reported in the Boston Independent Chronicle of January 14, 1790). “The more power a government has, the more it can act arbitrarily according to the whims and desires of the elite, the more it will … murder its … subjects. The more constrained the power of governments, the more it is diffused, checked and balanced, the less it will aggress on others and commit democide” (R.J. Rummell, Death by Government, Chapter 1). http://www.hawaii.edu/powerkills/DBG.CHAP1.HTM A. How does Madison describe the power of government in this passage? According to Madison, what is the danger involved in establishing a government? “It may be a reflection on human nature that [devices such as checks and balances] should be necessary to control the abuses of government. But what is government itself but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself” (James Madison, Federalist 51, February 6, 1788). B. According to Penn, what is an “Englishman’s Liberty”? “This original happy Frame of Government is truly and properly called an Englishman's Liberty, a Privilege not exempt from the law, but to be freed in person and estate from arbitrary violence and oppression” (William Penn, The Excellent Priviledge of Liberty and Property Being the Birth-Right of the Free-born Subjects of England, 1687). C. What is Paul Johnson’s point about the power of government? How do the statistics provided by R.J. Runnell support Johnson’s point?

• “The state ... proved itself the greatest killer of all time. By the 1990s, state action has been responsible for the violent or unnatural deaths of some 125 million people during the century, more perhaps than it had succeeded in destroying during the whole of human history up to 1900” (Paul Johnson, Modern Times, 1992, p. 783).

• According to R.J. Runnell, the following governments murdered a large number of their

own citizens. These totals include “genocide, politicide, and mass murder; excludes war- dead”:

U.S.S.R (1917-1987): 54,769,000

http://www.hawaii.edu/powerkills/DBG.CHAP1.HTM

China (1949-1987): 35,236,000 Cambodia (1975-1979): 2,000,000 Mexico (1900-1920): 1,417,000 North Korea (1948-1987): 1,293,000 http://www.hawaii.edu/powerkills/DBG.TAB1.2.GIF D. According to Forrest McDonald, what does history teach us about the power of government? How does the example of Cambodia illustrate McDonald’s point?

• “Common sense taught that man needed the protection that the sovereign provided against one’s fellow man; history taught that man needed protection from the sovereign as well” (Forrest McDonald, Novus Ordo Seclorum, 37).

• “On April 17th, 1975 the Khmer Rouge, a communist guerrilla group led by Pol Pot, took

power in Phnom Penh, the capital of Cambodia. They forced all city dwellers into the countryside and to labor camps. During their rule, it is estimated that 2 million Cambodians died by starvation, torture or execution. 2 million Cambodians represented approximately 30% of the Cambodian population during that time” (dithpran.org, accessed 2009).

Activity 14: Liberty Analysis (Living under a Government that does not Harm the Person and Property of its Citizens) Key Question: Which side winning would prevent government from harming the person and property of citizens? A. Which side in Helvering v. Davis would most promote liberty in the sense of living under a government that does not harm person and property? Why would this side promote this essential goal of liberty? (If this meaning of liberty does not apply to this case, say that it does not apply and explain why it does not apply.) “Title II has the caption "Federal Old-Age Benefits." The benefits are of two types, first, monthly pensions, and second, lump sum payments…. The scheme of benefits created by the provisions of Title II is not in contravention of the limitations of the Tenth Amendment…. Congress may spend money in aid of the ‘general welfare.’ Constitution, Art. I, section 8; United States v. Butler, 297 U.S. 1, 65; Steward Machine Co. v. Davis, supra. There have been great statesmen in our history who have stood for other views. We will not resurrect the contest. It is now settled by decision. United States v. Butler, supra. The conception of the spending power advocated by Hamilton and strongly reinforced by Story has prevailed over that of Madison, which has not been lacking in adherents…. Nor is the concept of the general welfare static. Needs that were narrow or parochial a century ago may be interwoven in our day with the wellbeing of the

http://www.hawaii.edu/powerkills/DBG.TAB1.2.GIF

Nation. What is critical or urgent changes with the times” (U.S. Supreme Court, Helvering v. Davis, 1937). Note: Helvering is the IRS commissioner. B. Which side in Wickard v. Filburn would most promote liberty in the sense of living under a government that does not harm person and property? Why would this side promote this essential goal of liberty? (If this meaning of liberty does not apply to this case, say that it does not apply and explain why it does not apply.) “[Even] if [home-grown wheat] is never marketed, it supplies a need of the man who grew it which would otherwise be reflected by purchases in the open market. Home-grown wheat in this sense competes with wheat in commerce. The stimulation of commerce is a use of the regulatory function quite as definitely as prohibitions or restrictions thereon…. Congress … considered that wheat consumed on the farm where grown … would have a substantial effect in defeating and obstructing its purpose to stimulate trade therein at increased prices. It is said … that this Act, forcing some farmers into the market to buy what they could provide for themselves, is an unfair promotion of the markets and prices of specializing wheat growers. It is of the essence of regulation that it lays a restraining hand on the self-interest of the regulated, and that advantages from the regulation commonly fall to others…. Appellee's claim is ... that the Fifth Amendment requires that he be free from penalty for planting wheat and disposing of his crop as he sees fit. We do not agree” (U.S. Supreme Court, Wickard v. Filburn, 1942).

Note: Wickard is trying to stop Filburn (the farmer) from growing wheat for his own use.

C. Which side in Kelo v. City of New London would most promote liberty in the sense of living under a government that does not harm person and property? Why would this side promote this essential goal of liberty? (If this meaning of liberty does not apply to this case, say that it does not apply and explain why it does not apply.) “After approving an integrated development plan designed to revitalize its ailing economy, respondent city, through its development agent, purchased most of the property earmarked for the project from willing sellers, but initiated condemnation proceedings when petitioners, the owners of the rest of the property, refused to sell. Petitioners brought this state-court action claiming, inter alia, that the taking of their properties would violate the “public use” restriction in the Fifth Amendment’s Takings Clause.” (U.S. Supreme Court, Kelo et al. v. City of New London et al., 2005) D. Which side in Gonzales v. Raich would most promote liberty in the sense of living under a government that does not harm person and property? Why would this side promote this essential goal of liberty? (If this meaning of liberty does not apply to this case, say that it does not apply and explain why it does not apply.) “California’s Compassionate Use Act authorizes limited marijuana use for medicinal purposes. Respondents Raich and Monson are California residents who both use doctor-recommended

marijuana for serious medical conditions. After federal Drug Enforcement Administration (DEA) agents seized and destroyed all six of Monson’s cannabis plants, respondents brought this action seeking injunctive and declaratory relief prohibiting the enforcement of the federal Controlled Substances Act (CSA) to the extent it prevents them from possessing, obtaining, or manufacturing cannabis for their personal medical use. Respondents claim that enforcing the CSA against them would violate the Commerce Clause and other constitutional provisions.” (U.S. Supreme Court, Gonzales, Attorney General, et al. v. Raich et al., 2005)

Features of the Texas/American System of Government that

Protects Against the Evil Side of Government (Political Requirements for Living under a Government that

Does Not Harm Its Citizens)

Protective Barrier Number 1A/1B: The Evil Side of Government/ The Law of Nature

(A belief that there is an evil side of government, plus a clear

definition of right and wrong, with wrong consisting in harming innocent people, protects us from the evil side of

government in the same way that it protects us from the evil side of people.)

Reader Discretion Advised: The belief that this is a necessary barrier that protects us from government is no longer the dominant view, and it is for you to decide whether or not this belief still remains valid today.

Protective Barrier Number 2: Religion

(Fear of God’s Wrath Restrains Rulers from Harming Citizens, as well as restraining citizens from harming one

another)

Protective Barrier Number 3:

Personal liberty—that is, not being imprisoned without trial

Activity 15: Personal Liberty (freedom from physical restraint) Reminder: In a free society, the three basic rights are “personal security,” “personal liberty,” and “property” (in the words of Blackstone) or, in the words of the US Constitution, “life,” “liberty,” and “property.” A. How does Blackstone define “liberty” in the context of the three basic rights? “Next to personal security, the law of England regards, asserts, and preserves the personal liberty of individuals. This personal liberty consists in the power of locomotion [that is, of moving from place to place], of changing one’s situation [that is, location], or moving one’s person to whatsoever place one’s own inclination may direct, without imprisonment, or restraint, unless by due course of law” (Sir William Blackstone, Commentaries on the Laws of England, 1765, Book I, Chapter 1). B. Why does Blackstone consider wrongful (or “arbitrary”) imprisonment so dangerous to liberty as a whole? “The subjecting of men to punishment for things which, when they were done, were breaches of no law, and the practice of arbitrary imprisonments have been, in all ages, the favorite and most formidable instruments of tyranny. The observation of the judicious Blackstone, in reference to the latter, are well worthy of recital: ‘To bereave a man of life or by violence to confiscate his estate, without accusation or trial, would be so gross and notorious an act of despotism as must at once convey the alarm of tyranny throughout the whole nation; but confinement of the person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten, is a less public, a less striking, and therefore a more dangerous engine of arbitrary government.’ And as a remedy for this fatal evil he is everywhere peculiarly emphatical in his encomiums on the habeas corpus act, which in one place he calls ‘the BULWARK of the British Constitution’” (Alexander Hamilton, Federalist 84, May 28, 1788).

C. How does Magna Carta protect people from wrongful imprisonment? According to the Habeas Corpus Act, who has a right to a writ of habeas corpus? “Clause 39 of Magna Carta, for instance, had declared that ‘no freeman shall be…arrested, or detained in prison ... unless by the judgment of his peers [and] by the law of the land.” The appropriate legal remedy in cases of arbitrary violations of this clause was a writ of habeas corpus ad subjiciendum whereby the prisoner was ordered to be brought before a judge, who could cause the prisoner to be released if he was being unlawfully held.” (Forrest McDonald, Novus Ordo Seclorum, 37) “Whereas great delays have been used by sheriffs, gaolers and other officers, to whose custody any of the King's subjects have been committed for criminal or supposed criminal matters, in making returns of writs of habeas corpus to them directed…contrary to their duty and the known laws of the land, whereby many of the King's subjects have been and hereafter may be long detained in prison, in such cases where by law they are bailable, to their great charges and vexation … be it enacted by the King’s most excellent majesty...” (Habeas Corpus Act, England, 1679). D. How do the 5th and 14th Amendments of the US Constitution protect people from wrongful imprisonment? “No person shall…be deprived of life, liberty, or property without due process of law” (5th Amendment, U.S. Constitution). “Nor shall any State deprive any person of life, liberty, or property without due process of law” (14th Amendment, U.S. Constitution). Note: Congress can suspend the writ of habeas corpus under certain circumstances: “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” (Article I.9, U.S. Constitution)

Texas History from the Perspective of Liberty, Part 3

Activity 16: Based on T.R. Fehrenbach, Lone Star (See PowerPoint slides for this activity on eCampus) A. Identify examples of injustice (violating person or property) or justice (securing or defending person or property) in this passage. Explain why these actions are unjust or just.

Activity 17: Based on T.R. Fehrenbach, Lone Star (See PowerPoint slides for this activity on eCampus) A. Identify examples of injustice (violating person or property) or justice (securing or defending person or property) in this passage. Explain why these actions are unjust or just. B. Identify examples of people acquiring land justly (without violating anyone else’s rights) or unjustly (by violating the rights of others). Explain why these are examples of justly or unjustly acquiring land. C. Identify examples of people obtaining or failing to obtain happiness in this passage (for example, providing themselves with adequate food, shelter, and clothing). Explain why these are examples of obtaining or not obtaining happiness. D. Identify examples of just or unjust social organizations (systems that exist for the benefit of all, in which no person or group benefits from the violation of the person and property or possibility of happiness of any other person or group, as opposed to systems that exist for the benefit of a few at the expense of the person and property or possibility of happiness of everyone else; or vice-versa).

Activity 18: Examples of Governments that Violate the Right of Personal Liberty A. How did the former Soviet Union violate the right of personal liberty?

• “As a result, between 1929, when prison camps first became a mass phenomenon, and 1953, the year, of Stalin’s death, some 18 million people passed through them. In addition, a further 6 or 7, million people were deported, not to camps but to exile villages. In total, that means the number of people with some experience of imprisonment in

Stalin’s Soviet Union could have run as high as 25 million, about 15 percent of the population” (Anne Applebaum, “Gulag: Understanding the Magnitude of What Happened,” November 7, 2004, )

http://www.heritage.org/research/lecture/gulag-understanding-the-magnitude-of-what- happened

• From 1922 to 1960: 1) The average life expectancy of a camp prisoner was one winter.

2) At least twenty million people perished in the labor camps during Stalin’s rule (Charles G. Palm, “Two Eras,” Hoover Institution, 1999). http://www.hoover.org/publications/hoover-digest/article/6210

B. How did China violate the right of personal liberty? In communist China, “tens of millions of ‘counterrevolutionaries’ passed long periods of their lives inside the prison system, with perhaps 20 million dying there” (Black Book of Communism, 1999, 463-464) C. How does Cuba violate the right of personal liberty?

• “In March 2003, the government of Cuba arrested dozens of journalists, librarians, and human rights activists and charged them with sedition. After summary trials in which fundamental rights of due process were denied, the accused were sentenced to prison terms ranging from 15 to 28 years. In all, 78 journalists, librarians, and dissidents were sentenced to a collective total of more than 1,400 years in Cuba’s gulag.” (Cubafacts.com, accessed 2003)

D. How does North Korea violate the right of personal liberty? “[Haenyong] is home to Camp 22-North Korea’s largest concentration camp, where thousands of men, women and children accused of political crimes are held…. The number of prisoners held in the North Korean gulag is not known: one estimate is 200,000 held in 12 or more centres…” (www.guardian.co.uk , February 1, 2004). http://www.theguardian.com/world/2004/feb/01/northkorea

Activity 19: Liberty Analysis (Personal Liberty) Key Question: Which side winning would prevent government from imprisoning citizens without trial? A. Which side in Texas v. Johnson would most promote liberty in the sense of personal liberty? Why would this side promote this essential part of liberty? (If this meaning of

http://www.heritage.org/research/lecture/gulag-understanding-the-magnitude-of-what-happened

http://www.hoover.org/publications/hoover-digest/article/6210

http://www.theguardian.com/world/2004/feb/01/northkorea

liberty does not apply to this case, say that it does not apply and explain why it does not apply.) “During the 1984 Republican National Convention in Dallas, Texas, respondent Johnson participated in a political demonstration to protest the policies of the Reagan administration and some Dallas-based corporations. After a march through the city streets, Johnson burned an American flag while protesters chanted. No one was physically injured or threatened with injury, although several witnesses were seriously offended by the flag burning. Johnson was convicted of desecration of a venerated object in violation of a Texas statute, and a State Court of Appeals affirmed. However, the Texas Court of Criminal Appeals reversed, holding that the State, consistent with the First Amendment, could not punish Johnson for burning the flag in these circumstances” (U.S. Supreme Court, Texas v. Johnson, 1989). B. Which side in Wise v. Lipscomb would most promote liberty in the sense of personal liberty? Why would this side promote this essential part of liberty? (If this meaning of liberty does not apply to this case, say that it does not apply and explain why it does not apply.) “Respondents, Negro and Mexican-American residents of Dallas, Tex., brought this action … against petitioners, the Mayor and members of the Dallas City Council, alleging that the City Charter's at-large system of electing council members unconstitutionally diluted the vote of racial minorities…. The District Court orally declared that system unconstitutional and then ‘afforded the city an opportunity as a legislative body for the City of Dallas to prepare a plan which would be constitutional.’ The City Council then passed a resolution expressing its intention to enact an ordinance that would provide for eight council members to be elected from single-member districts and for the three remaining members, including the Mayor, to be elected at large…. The District Court approved the plan, which the City Council thereafter formally enacted as an ordinance…. The Court of Appeals reversed, holding that the District Court had erred…. Held. The judgment is reversed and the case is remanded” (U.S. Supreme Court, Wise v. Lipscomb, 1979). C. Which side in Santa Fe Independent School District v. Doe would most promote liberty in the sense of personal liberty? Why would this side promote this essential part of liberty? (If this meaning of liberty does not apply to this case, say that it does not apply and explain why it does not apply.) “Prior to 1995, a student elected as Santa Fe High School’s student council chaplain delivered a prayer over the public address system before each home varsity football game. Respondents, Mormon and Catholic students or alumni and their mothers, filed a suit challenging this practice and others under the Establishment Clause of the First Amendment. While the suit was pending, petitioner school district (District) adopted a different policy, which authorizes two student elections, the first to determine whether ‘invocations’ should be delivered at games, and the second to select the spokesperson to deliver them. After the students held elections authorizing such prayers and selecting a spokesperson, the District Court entered an order modifying the policy to permit only nonsectarian, nonproselytizing prayer. The Fifth Circuit held that, even as modified by the District Court, the football prayer policy was invalid. Held: The District’s

policy permitting student-led, student-initiated prayer at football games violates the Establishment Clause.” (U.S. Supreme Court, Santa Fe Independent School District v. Doe, individually and as next friend for her minor children, et al., 2000) D. Which side in Boumediene v. Bush would most promote liberty in the sense of personal liberty? Why would this side promote this essential part of liberty? (If this meaning of liberty does not apply to this case, say that it does not apply and explain why it does not apply.) “Petitioners are aliens detained at Guantanamo after being captured in Afghanistan or elsewhere abroad and designated enemy combatants by [Combatant Status Review Tribunals]. Denying membership in the al Qaeda terrorist network that carried out the September 11 attacks and the Taliban regime that supported al Qaeda, each petitioner sought a write of habeas corpus in the District Court, which ordered the cases dismissed for lack of jurisdiction because Guantanamo is outside sovereign territory. The D.C. Circuit affirmed, but this Court reversed, holding that 28 U.S.C s. 2241 extended statutory habeas jurisdiction to Guanatanamo. See Rasul v. Bush…. While appeals were pending, Congress passed the Detainee Treatment Act of 2005, sec. 10005(e) of which amended 28 U.S.C. sec.2241 to provide that ‘no court, justice, or judge shall have jurisdiction to … consider … an application for…habeas corpus filed by or on behalf of an alien detained…at Guantanamo’…. The D.C Circuit concluded that … petitioners are not entitled to…the protections of the Suspension Clause [of the US Constitution] … and that it was therefore unnecessary to consider whether the DTA provided an adequate and effective substitute for habeas” (U.S. Supreme Court, Boumediene v. Bush, 2008).

Protective Barrier Number 4: Self-government—that is, being ruled by laws made by our

representatives in our legislature

Activity 20: The Meaning, Importance, and Primary Purpose of Self-Government “The Legislative power of this State shall be vested in a Senate and House of Representatives, which together shall be styled ‘The Legislature of the State of Texas’ ” (Article 3, Section 1 of the Texas Constitution). “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives” (Article I, Section 1 of the U.S. Constitution). A. Based on these statements, what is self-government?

• “The first grand right, is that of the people having a share in their own government by their representatives chosen by themselves, and in consequence, of being ruled by laws which they themselves approve, not by edicts of men over whom they have no control” (Letter to the Inhabitants of Quebec, First Continental Congress, 1774).

• “Civil liberty … consists in being protected and governed by laws made, or assented to, by the representatives of the people, and conducive to the general welfare” (James Kent, Commentaries on American Law, Lecture XXIV, 1826).

B. What are the first six complaints the Americans make against the King of Great Britain in the Declaration? What exactly is the King doing? How do these actions prove the King is seeking to establish despotism?

1. “--He has refused his Assent to Laws, the most wholesome and necessary for the public good.”

2. “--He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them” (Declaration of Independence, 1776).

3. “--He has refused to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only.”

4. “--He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their public Records, for the sole purpose of fatiguing them into compliance with his measures” (Declaration of Independence, 1776). 5. “--He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people.”

6. “--He has refused for a long time, after such dissolutions, to cause others to be elected…” (Declaration of Independence, 1776).

C. According to James Kent, what is the primary purpose of civil liberty (that is, self- government)? “The absolute rights of individuals may be resolved into the right of personal security, the right of personal liberty, and the right to acquire and enjoy property. These rights have been justly considered, and frequently declared, by the people of this country, to be natural, inherent, and unalienable. The effectual security and enjoyment of them depend upon the existence of civil liberty; and that consists in being protected and governed by laws made, or assented to, by the representatives of the people, and conducive to the general welfare” (James Kent, Commentaries on American Law, Lecture XXIV).

D. According to Alexander Hamilton, what is the primary purpose of self-government? “[The members of Parliament] divest us of that moral security, for our lives and properties, which we are intitled to, and which it is the primary end of society to bestow. For such security can never exist, while we have no part in making the laws that are to bind us” (Alexander Hamilton, The Farmer Refuted, February 23, 1775).

For the primary purpose of self-government, see also: 1. “The right to vote is the right of self-protection, through the possession of a share in the Government. Without this a man’s rights lie at the mercy of other men who have every selfish incentive to rob and oppress him. This is the great central idea of a republican Government. The absence of this is the source of all despotism” (Representative Donnelly, February 1, 1866, Congressional Globe, 589). 2. “Common sense taught that man needed the protection that the sovereign provided against one’s fellow man; history taught that man needed protection from the sovereign as well. Liberties, in this sense, consisted in limitations upon the powers of the sovereign and in a sharing, enjoyed by freemen, in the exercise of those powers” (Forrest McDonald, Novus Ordo Seclorum, 37).

Activity 21: Another Purpose of Self-Government; Two Potential Problems with Self- Government A. Based on this statement, what is a benefit of having many different state governments within the United States? What is a second purpose of self-government? “I am fully persuaded that the People of the United States being in different Climates--of different Education and Manners, and possest of different Habits & Feelings under one consolidated Governmt. can not long remain free, or indeed under any Kind of Governmt. but Despotism” (Samuel Adams to Elbridge Gerry, August 22, 1789, Beinecke Library, Yale University). B. Based on this statement, what is a second purpose of self-government? “No power over the freedom of religion, freedom of speech, or freedom of the press being delegated to the United States by the Constitution, nor prohibited by it to the States, all lawful powers respecting the same did of right remain, and were reserved to the people…. Thus was manifested their determination to reserve to themselves the right of judging how far the licentiousness of speech and of the press may be abridged without lessening their useful freedom…” (Thomas Jefferson, Kentucky Resolutions, October 1798). C. What problem with self-government does Mill identify in this statement? What are the “first principles” to which he refers?

“I regard it as required by first principles that the receipt of parish relief (i.e. welfare payments) should be a preemptory disqualification for the franchise (i.e. voting). He who cannot by his labor suffice for his own support has no claim to the privilege of helping himself to the money of others. By becoming dependent on the remaining members of the community for actual subsistence, he abdicates his claim to equal rights with them in other respects...It is also important that the assembly which votes the taxes, whether general or local, should be elected exclusively by those who pay something towards the taxes imposed. Those who pay no taxes, disposing by their votes of other people’s money, have every motive to be lavish and none to economize.... It amounts to allowing them to put their hands into other people’s pockets for any purpose which they think fit to call a public one” (John Stuart Mill, Representative Government, 1861, Chapter 8). D. What problem with self-government does R. McNair Wilson identify in this statement? What are the “first principles” to which he refers? “The greed system of international finance … has ever masqueraded under the name of democracy—a name to which it has no title. It has been maintained by popularly elected chambers of politicians who, whatever their qualities, have seldom, anywhere, so much as questioned the right of a private monopoly to control price-levels, create promise-money and take possession of their neighbours’ goods, by the mere process of writing figures in ledgers. Politicians who permit and support a system whereby the power of life and death over every citizen is given to a private monopoly cannot reasonably be described as upholders of popular rights, of liberty or of democracy. They are more truthfully described as the ignorant functionaries, even the lackeys, of a wholly irresponsible and entirely unrepresentative dictatorship, the aims and objects of which are everywhere opposed to those of the citizens who elect the politicians. Financial democracy is a system of pillage disguised under a cloak of philosophical liberalism which, unhappily, has deceived many honest men, including creative artists, lovers of peace and lovers of freedom” (R. McNair Wilson, Monarchy or Money Power, 1933.

Mini Lecture: We enjoy the greatest degree of self-government when the laws under which we live are made by our state legislature. We have the greatest opportunity to live under laws of our own choosing when we live under laws made by our State government as opposed to those made by our Federal government. There are two reasons for this. First, our opinion counts for more in our state than it does in the United States as a whole. In Texas, we are one person out of about 24 million. In the United States as a whole, we are one person out of about 300 million. (This reason holds true even more in smaller states such as Wyoming, which has a population of only around 500,000)

Second, the people of a State are more likely to see things in a similar way to one another than with people who live in a different state. For example, in general, the values of people in Texas are different than those of people who live in California or New York. When laws are made by State governments, Texans can live under the kinds of laws that we want and Californians or New Yorkers can live under the kinds of laws that they want. Of course, we have the greatest opportunity to live under laws of our own choosing when we make laws through the city councils of our city governments. In this case, we are part of an even smaller community of people who are even more likely to share the same values with one another. If there ever were a world government, that would provide us with the least opportunity for self- government of all. We would be just one out of billions of people who are least likely to share the same values. In general, the government that is closest to us provides us with the greatest degree of self- government.

Texas History from the Perspective of Liberty, Part 4

Activity 22: Based on T.R. Fehrenbach, Lone Star (See PowerPoint slides for this activity on eCampus) A. Identify examples of injustice (violating person or property) or justice (securing or defending person or property) in this passage. Explain why these actions are unjust or just. B. Identify examples of people acquiring land justly (without violating anyone else’s rights) or unjustly (by violating the rights of others). Explain why these are examples of justly or unjustly acquiring land. C. Identify examples of people obtaining or failing to obtain happiness in this passage (for example, providing themselves with adequate food, shelter, and clothing). Explain why these are examples of obtaining or not obtaining happiness. D. Identify examples of just or unjust social organizations (systems that exist for the benefit of all, in which no person or group benefits from the violation of the person and property or possibility of happiness of any other person or group, as opposed to systems that exist for the benefit of a few at the expense of the person and property or possibility of happiness of everyone else; or vice-versa).

Activity 23: Based on T.R. Fehrenbach, Lone Star (See PowerPoint slides for this activity on eCampus) A. Identify examples of injustice (violating person or property) or justice (securing or defending person or property) in this passage. Explain why these actions are unjust or just. B. Identify examples of people acquiring land justly (without violating anyone else’s rights) or unjustly (by violating the rights of others). Explain why these are examples of justly or unjustly acquiring land. C. Identify examples of people obtaining or failing to obtain happiness in this passage (for example, providing themselves with adequate food, shelter, and clothing). Explain why these are examples of obtaining or not obtaining happiness. D. Identify examples of just or unjust social organizations (systems that exist for the benefit of all, in which no person or group benefits from the violation of the person and property or possibility of happiness of any other person or group, as opposed to systems that exist for the benefit of a few at the expense of the person and property or possibility of happiness of everyone else; or vice-versa).

Activity 24: Liberty Analysis (Having input into laws through our representatives in a legislature) Key Question: Which side winning would make it possible for people to live under the law made by their representatives in their legislature? A. Which side in Lawrence v. Texas would most promote liberty in the sense of self- government? Why would this side winning promote this essential feature of liberty? (If this meaning of liberty does not apply to this case, say that it does not apply and explain why it does not apply.) “Responding to a reported weapons disturbance in a private residence, Houston police entered petitioner Lawrence’s apartment and saw him and another adult man, petitioner Garner, engaging in a private, consensual sexual act. Petitioners were arrested and convicted of deviate sexual intercourse in violation of a Texas statute forbidding two persons of the same sex to engage in certain intimate sexual conduct. In affirming, the State Court of Appeals held, inter alia, that the statute was not unconstitutional under the Due Process Clause of the Fourteenth Amendment” (U.S. Supreme Court, Lawrence et al. v. Texas, 2003). B. Which side in Kelo v. City of New London would most promote liberty in the sense of self-government? Why would this side winning promote this essential feature of liberty? (If this meaning of liberty does not apply to this case, say that it does not apply and explain why it does not apply.)

“After approving an integrated development plan designed to revitalize its ailing economy, respondent city, through its development agent, purchased most of the property earmarked for the project from willing sellers, but initiated condemnation proceedings when petitioners, the owners of the rest of the property, refused to sell. Petitioners brought this state-court action claiming, inter alia, that the taking of their properties would violate the “public use” restriction in the Fifth Amendment’s Takings Clause.” (U.S. Supreme Court, Kelo et al. v. City of New London et al., 2005) C. Which side in Gonzales v. Raich would most promote liberty in the sense of self- government? Why would this side winning promote this essential feature of liberty? (If this meaning of liberty does not apply to this case, say that it does not apply and explain why it does not apply.) “California’s Compassionate Use Act authorizes limited marijuana use for medicinal purposes. Respondents Raich and Monson are California residents who both use doctor-recommended marijuana for serious medical conditions. After federal Drug Enforcement Administration (DEA) agents seized and destroyed all six of Monson’s cannabis plants, respondents brought this action seeking injunctive and declaratory relief prohibiting the enforcement of the federal Controlled Substances Act (CSA) to the extent it prevents them from possessing, obtaining, or manufacturing cannabis for their personal medical use. Respondents claim that enforcing the CSA against them would violate the Commerce Clause and other constitutional provisions.” (U.S. Supreme Court, Gonzales, Attorney General, et al. v. Raich et al., 2005) D. Which side in Van Orden v. Perry would most promote liberty in the sense of self- government? Why would this side winning promote this essential feature of liberty? (If this meaning of liberty does not apply to this case, say that it does not apply and explain why it does not apply.) “Among the 21 historical markers and 17 monuments surrounding the Texas State Capitol is a 6- foot-high monolith inscribed with the Ten Commandments. The legislative record illustrates that, after accepting the monument from the Fraternal Order of Eagles--a national social, civic, and patriotic organization--the State selected a site for it based on the recommendation of the state organization that maintains the capitol grounds. Petitioner, an Austin resident who encounters the monument during his frequent visits to those grounds, brought this 42 U. S. C. §1983 suit seeking a declaration that the monument’s placement violates the First Amendment’s Establishment Clause and an injunction requiring its removal. Holding that the monument did not contravene the Clause, the District Court found that the State had a valid secular purpose in recognizing and commending the Eagles for their efforts to reduce juvenile delinquency, and that a reasonable observer, mindful of history, purpose, and context, would not conclude that this passive monument conveyed the message that the State endorsed religion. The Fifth Circuit affirmed. Held: The judgment is affirmed” (U.S. Supreme Court, Van Orden v. Perry, in his official capacity as Governor of Texas and Chairman, State Preservation Board, et al., 2005).

Activity 25: Texas Legislature

“No man’s life, liberty or property are safe while the Legislature is in session” (Gideon J. Tucker, 1866). A. How often does the Texas legislature meet? Why do you think the legislature meets so infrequently? The Texas legislature meets for 140 days every other year, during the years that end with an odd number (2001, 2003, etc.). This is called a biennial legislative session. The governor can call the legislature into session at other times for a maximum of 30 days. But the legislature cannot call itself into session. “In the early 1960s, only 19 state legislatures met annually…. Today, 46 state legislatures meet annually. The remaining four states—Montana, Nevada, North Dakota and Texas—hold session every other year.” Source: National Conference of State Legislatures http://www.ncsl.org/research/about-state-legislatures/annual-versus-biennial-legislative- sessions.aspx B. Who is the leader of the Texas House? Who is leader of Texas Senate? In Texas, the lieutenant governor is the leader of the Senate, and the speaker of the House is the leader of the House of Representatives. The lieutenant governor is in charge of the Senate, but is not a Senator. He or she is elected every four years in the same election as the governor. The Speaker of the House is a member of the House of Representatives, chosen by other members of the House at the beginning of each session. C. What is a major difference between the Texas legislature and the US Congress? One major difference between the Texas legislature and Congress is that power is much more centralized in the Texas legislature. The lieutenant governor and Speaker of the House have powers that their counterparts in Congress simply do not have. These powers include assigning bills to committees, influencing which bills end up being discussed, and recognizing members during floor debates. In addition, these leaders also choose committee chairs and most committee and subcommittee members. D. How does the power structure in the Texas legislature impact the role of the legislature within the Texas government as a whole? The extraordinary power of the lieutenant governor and the Speaker is not given to them by the Texas Constitution. Members of each chamber have voted to give their leaders these powers— and so can take them away if they so choose. One of the consequences of this decision is that the Texas legislature has remained the chief policymaking body in the state government. In the federal government, on the other hand, the executive branch has arguably become the chief

policymaking body. This development in the federal government is due in part to the fact that power is relatively decentralized in Congress. Note: There are 100 members in the Texas House of Representatives and 30 members in the Texas Senate.

Political Requirements for Living under a Government that Protects and Does Not Harm Its Citizens (Continued)

Protective Barrier Number 5: Constitutionally limited government—that is, living under a government that has limits on what it can do—by means of a

constitution

Activity 26: Living under a government that has limits through a constitution “Common sense taught that man needed the protection that the sovereign provided against one’s fellow man; history taught that man needed protection from the sovereign as well. Liberties, in this sense, consisted in limitations upon the powers of the sovereign and in a sharing, enjoyed by freemen, in the exercise of those powers” (Forrest McDonald, Novus Ordo Seclorum, 37) A. According to the Pittsfield Petitions, what is the purpose of putting limits on government? “That knowing the strong Byass of human Nature to Tyranny and Despotism we have Nothing else in View but to provide for Posterity against the wanton Exercise of power which cannot otherwise be done than by the formation of a fundamental Constitution” (Pittsfield Petitions, May 29, 1776). B. According to the ancient political philosopher, how do we place limits on government? What is a constitution? “The object of a constitution is to restrain the government, as that of laws is to restrain individuals” (Anonymous ancient political philosopher, as quoted by John C. Calhoun, Fort Hill Address, July 26, 1831). C. According to the Representatives of Berkshire County, what is the purpose of a constitution? Why do they call the barrier that it provides sacred?

“In all free governments duly organized there is an essential distinction to be observed between the fundamental Constitution and legislation. The fundamental Constitution is the basis and groundwork of legislation ... circumscribing and defining the powers of the rulers, and so affoarding a sacred barrier against tyranny and despotism” (Statement of the Berkshire County, Massachusetts, Representatives, November 17, 1778). D. Why do we need constitutions, according to Thomas Jefferson? “It would be a dangerous delusion were a confidence in the men of our choice to silence our fears for the safety of our rights… Confidence is everywhere the parent of despotism--free government is founded on jealousy, and not in confidence; it is jealousy and not confidence which prescribes limited constitutions, to bind down those whom we are obliged to trust with power…. Our Constitution has accordingly fixed the limits to which, and no further, our confidence may go… In questions of power, then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution” (Jefferson, Kentucky Resolutions, October 1798)

Activity 27: More on living under a government that has limits through a constitution “All legislative Powers herein granted shall be vested in a Congress of the United States” (U.S. Constitution, Article I.1). “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people” (10th Amendment of the U.S. Constitution). “[The 9th and 10th Amendments] disclosed the widespread fear that the National Government might, under the pressure of the supposed general welfare, attempt to exercise powers which had not been granted” (U.S. Supreme Court, Kansas v. Colorado, 1907). A. What is Article I.8 of the U.S. Constitution a list of? “The Congress shall have Power [1] To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United States …;

[2] To borrow Money on the credit of the United States; [3] To regulate Commerce with foreign Nations, and among the several States, and with the

Indian Tribes; [4] To establish an uniform Rule of Naturalization, and uniform Laws on the subject of

Bankruptcies throughout the United States; [5] To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of

Weights and Measures; [6] To provide for the Punishment of counterfeiting the Securities and current Coin of the

United States; [7] To establish Post Offices and post Roads;

[8] To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

[9] To constitute Tribunals inferior to the supreme Court; [10] To define and punish Piracies and Felonies committed on the high Seas, and Offences

against the Law of Nations; [11] To declare War, grant Letters of Marque and Reprisal, and make Rules concerning

Captures on Land and Water; [12] To raise and support Armies, but no Appropriation of Money to that Use shall be for a

longer Term than two Years; [13] To provide and maintain a Navy; [14 ] To make Rules for the Government and Regulation of the land and naval Forces; [15] To provide for calling forth the Militia to execute the Laws of the Union, suppress

Insurrections and repel Invasions; [16] To provide for organizing, arming, and disciplining, the Militia, and for governing such

Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

[17] To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;--And

[18] To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” (Emphasis added)

B. What is Article I.9 of the U.S. Constitution a list of? “The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person. The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it. No Bill of Attainder or ex post facto Law shall be passed. No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or enumeration herein before directed to be taken. No Tax or Duty shall be laid on Articles exported from any State. No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another; nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another.

No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time. No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.” C. What is Article I, section 10 of the U.S. Constitution a list of? What is the 14th amendment of the U.S. Constitution a list of? “No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility. No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it's inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Controul of the Congress. No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.” (Article I.10, Emphasis added) “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws” (Fourteenth Amendment of the U.S. Constitution, ratified 1870). D. What are the first ten amendments of the U.S. Constitution a list of? “1. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. 2. A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. 3. No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

4. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. 5. No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. 6. In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence. 7. In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law. 8. Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. 9. The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. 10. The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” (Emphasis added)

For the lack of ambiguity in the U.S. Constitution, see: 1. “It was the intention and honest desire of the Convention to use those expressions that were most easy to be understood and least equivocal in their meaning; and we flatter ourselves they have not been entirely disappointed. We believe that the powers [in Article I.8 of the Constitution] are closely defined, the expressions as free from ambiguity as the Convention could form them, and we never could have assented to the Report, had we supposed the Danger Mr. G. predicts (i.e. that ‘some powers of the Legis. are ambiguous and others indefinite and dangerous’)” (Mr. Rufus King, Massachusetts Ratifying Convention, January 24, 1788, in Farrand’s Recors, Vol. 3, CLXXXIII).

2. “The words ‘due process’ have a precise technical import, and are only applicable to the process and proceedings of the courts of justice; they can never be referred to an act of the legislature” (Alexander Hamilton, New York Assembly, 6 February, 1787)

For the general welfare clause and constitutionally limited government, see: 1. “It would reduce the whole instrument to a single phrase, that of instituting a Congress with power to do whatever would be for the good of the United States; and as they would be the sole judges of the good or evil, it would be also a power to do whatever evil they please. Certainly no such universal power was meant to be given them. It [the Constitution] was intended to lace them up straightly within the enumerated powers and those without which, as means, these powers could not be carried into effect” (Thomas Jefferson, Opinion on a National Bank, 1791). 2. “If Congress can do whatever in their discretion can be done by money, and will promote the General Welfare, the Government is no longer a limited one, possessing enumerated powers, but an indefinite one, subject to particular exceptions” (James Madison, letter to Edmund Pendleton, 21 January 1792). 3. “The rhetoric of the gentlemen has highly colored the dangers of giving the general government an indefinite power of providing for the general welfare. I contend that no such power is given…. Is this an independent, separate, substantive power, to provide for the general welfare of the United States? No, sir” (Edmund Randolph, Virginia Ratifying Convention, June 17, 1788). 4. “The national government was intended to ‘promote the general welfare.’ For this reason, congress have power to regulate commerce with the Indians and with foreign nations, and to promote the progress of science and of useful arts, by securing, for a time, to authors and inventors, an exclusive right to their compositions and discoveries” (James Wilson, Lectures on Law, Part 2, Ch. 1, 1791). 5. “The plain import of the [necessary and proper] clause is, that congress shall have all the incidental and instrumental powers, necessary and proper to carry into execution all the express powers. It neither enlarges any power specifically granted; nor is it a grant of any new power to congress. But it is merely a declaration for the removal of all uncertainty, that the means of carrying into execution those, otherwise granted, are included in the grant” (Joseph Story, Commentaries on the Constitution, 1833).

6. “It has been urged and echoed, that the power “to lay and collect taxes … to pay the debts, and provide for the common defense and general welfare of the United States,” amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare. No stronger proof could be given of the distress under which these writers labor for objections, than their stooping to such a misconstruction…. But what color can the objection have, when a specification of the objects alluded to by these general terms immediately follows, and is not even separated by a longer pause than a semicolon? … For what purpose could the enumeration of particular powers be inserted, if these and all others were

meant to be included in the preceding general power? …. The idea of an enumeration of particulars which neither explain nor qualify the general meaning … is an absurdity” (James Madison, Federalist 41, January 19, 1788).

7. “This, sir, in my mind, raises the important and fundamental question, whether the general terms which have been cited are to be considered as a sort of caption, or general description of the specified powers; and as having no further meaning, and giving no further powers, than what is found in that specification, or as an abstract and indefinite delegation of power extending to all cases whatever -- to all such, at least, as will admit the application of money -- which is giving as much latitude as any government could well desire. I, sir, have always conceived -- I believe those who proposed the Constitution conceived -- it is still more fully known, and more material to observe, that those who ratified the Constitution conceived -- that this is not an indefinite government, deriving its powers from the general terms prefixed to the specified powers -- but a limited government, tied down to the specified powers, which explain and define the general terms” (James Madison, On the Cod Fisheries, February 7, 1792). 8. “To refer the power in question to the clause ‘to provide for common defense and general welfare’ would be contrary to the established and consistent rules of interpretation, as rendering the special and careful enumeration of powers which follow the clause nugatory and improper. Such a view of the Constitution would have the effect of giving to Congress a general power of legislation instead of the defined and limited one hitherto understood to belong to them, the terms ‘common defense and general welfare’ embracing every object and act within the purview of a legislative trust…. Believing … that the permanent success of the Constitution depends on a definite partition of powers between the General and the State Governments, and that no adequate landmarks would be left by the constructive extension of the powers of Congress as proposed in the bill, I have no option but to withhold my signature from it…” (James Madison, Veto of Federal Works Bill, March 3, 1817). 9. “These terms [‘common defence and general welfare’], copied from the Articles of Confederation, were regarded in the new as in the old instrument, merely as general terms, explained and limited by the subjoined specifications, and therefore requiring no critical attention or studied precaution…. It exceeds the possibility of belief, that the known advocates in the Convention for a jealous grant and cautious definition of Federal powers should have silently permitted the introduction of words or phrases in a sense rendering fruitless the restrictions and definitions elaborated by them” (James Madison to Andrew Stevenson, November 27, 1830). 10. “Here are a majority of the States proposing amendments, … all of them intended to circumscribe the powers granted to the General Government … without including a single proposition from a single State referring to the terms common defence and general welfare; … that the terms should have passed altogether unnoticed … must be regarded as a demonstration that it was taken for granted that the terms were harmless, because explained and limited, as in the ‘Articles of Confederation,’ by the enumerated powers which followed them” (James Madison to Andrew Stevenson, November 27, 1830).

For Alexander Hamilton’s understanding of the “General Welfare” clause and views on the Constitution, see: 1. “The power to raise money is plenary and indefinite; and the objects to which it may be appropriated are no less comprehensive, than the payment of the public debts and the providing for the common defence and “general Welfare.” … It is … of necessity left to the discretion of the National Legisalture, to pronounce, upon the objects, which concern the general Welfare, and for which under that description, an appropriation of money is requisite and proper…. The only qualification of the generality of the Phrase in question, which seems to be admissible, is this-- That the object to which an appropriation of money is to be made be General and not local; its operation extending in fact, or by possibility, throughout the Union, and not being confined to a particular spot” (Alexander Hamilton, Report on Manufactures, December 5, 1791). 2. “Having made these observations he would read to the Committee a sketch of a plan which he shd. prefer to either of those under consideration. He was aware it went beyond the ideas of m most members…. The Supreme Legislative power of the United States of America to be vested in two different bodies of men; the one to be called the Assembly, the other the Senate who together shall form the Legislature of the United States with power to pass all laws whatsoever subject to the Negative hereafter mentioned…. I would give them unlimited power to pass all laws without exception” (Alexander Hamilton, Constitutional Convention, June 18, 1787). 3. “No man’s ideas were more remote from the plan than his own were known to be” (Alexander Hamilton, Constitutional Convention, September 17, 1787).

Texas History from the Perspective of Liberty, Part 5

Activity 28: Based on T.R. Fehrenbach, Lone Star (See PowerPoint slides for this activity on eCampus) A. Identify examples of injustice (violating person or property) or justice (securing or defending person or property) in this passage. Explain why these actions are unjust or just. B. Identify examples of people acquiring land justly (without violating anyone else’s rights) or unjustly (by violating the rights of others). Explain why these are examples of justly or unjustly acquiring land. C. Identify examples of people obtaining or failing to obtain happiness in this passage (for example, providing themselves with adequate food, shelter, and clothing). Explain why these are examples of obtaining or not obtaining happiness. D. Identify examples of just or unjust social organizations (systems that exist for the benefit of all, in which no person or group benefits from the violation of the person and

property or possibility of happiness of any other person or group, as opposed to systems that exist for the benefit of a few at the expense of the person and property or possibility of happiness of everyone else; or vice-versa).

Activity 29: Based on T.R. Fehrenbach, Lone Star (See PowerPoint slides for this activity on eCampus) A. Identify examples of injustice (violating person or property) or justice (securing or defending person or property) in this passage. Explain why these actions are unjust or just. B. Identify examples of people acquiring land justly (without violating anyone else’s rights) or unjustly (by violating the rights of others). Explain why these are examples of justly or unjustly acquiring land. C. Identify examples of people obtaining or failing to obtain happiness in this passage (for example, providing themselves with adequate food, shelter, and clothing). Explain why these are examples of obtaining or not obtaining happiness. D. Identify examples of just or unjust social organizations (systems that exist for the benefit of all, in which no person or group benefits from the violation of the person and property or possibility of happiness of any other person or group, as opposed to systems that exist for the benefit of a few at the expense of the person and property or possibility of happiness of everyone else; or vice-versa).

Activity 30: The “Inviolable Sovereignty” of the States A. How does Alexander Hamilton define the powers of the federal and state governments? “The laws of Congress are restricted to a certain sphere, and when they depart from this sphere, they are no longer supreme or binding. In the same manner the states have certain independent powers, in which they are supreme” (Alexander Hamilton, New York Ratifying Convention, June 28, 1788). “The powers of sovereignty are in this country divided between the National and State Governments…. Each of the portions of powers delegated to the one or the other is … sovereign with regard to its proper objects…. Each has sovereign power as to certain things, and not as to other things” (Alexander Hamilton, Opinion on the Constitutionality of an Act to Establish a National Bank, February 23, 1791). B. How does Madison describe the powers of the federal government? How does the arrangement that Madison describes affect self-government?

“[The States] form distinct and independent portions of the supremacy, no more subject, within their respective spheres, to [the National Government] than [the National Government] is subject to them, within its own sphere . . . [The] jurisdiction [of the National Government] extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects” (James Madison, Federalist 39, January 16, 1788). C. How does Madison describe the powers of the federal government? How does the arrangement that Madison describes affect self-government? “Do [the] principles [of the confederation]...require that the powers of the [Federal] government should be limited, and that beyond this limit, the States should be left in possession of their sovereignty and independence? We have seen that in the new government as in the old, the powers [of the Federal government] are limited, and that the States in all unenumerated cases, are left in the enjoyment of their sovereign and independent jurisdiction” (James Madison, Federalist 40). D. How does Madison describe the powers of the federal government? How does the arrangement that Madison describes affect self-government? “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State” (James Madison, Federalist 45, January 26, 1788).

Activity 31: The Increase of the Power of the Federal Government in the 20th Century “In the 19th century, and for the first three decades of the 20th, the national government of the United States impinged less on its citizens than any in the Western world, except the Swiss. The national government … collected almost no taxes, nor did it try to interfere or try to influence the citizens’ daily life. It left almost all decisions affecting society to local option” (T.R. Fehrenbach, Lone Star, Updated Edition, 437). “In [the 1840s] the federal government collected no taxes and left virtually all internal regulation to the states” (T.R. Fehrenbach, Lone Star, Updated Edition, 266). A. According to James Ceaser, what happened to the power of the federal government in the 20th century? What happened to self-government as a result of this development? What happened to limited government? “In the early 1930s the Supreme Court declared some of the New Deal programs unconstitutional on the grounds that they did not rest on any enumerated power of the national government. By the end of the decade, however, after much turmoil and controversy, the Court altered its course

and began to interpret federal authority more broadly. The combination of determination by the President and Congress to act, and (after 1937) the willingness by the Supreme Court not to interfere, led to the virtual collapse of the notion of a limited national government of enumerated powers…. In many respects, regarding both federalism and governmental power in general, the national government in 1940 was not what it had been in 1930, even though no Constitutional amendment respecting the general powers of government had been adopted.” (James Ceaser, American Government, Seventh Edition, 103) B. According to David Kennedy, what happened to the power of the federal government in the 20th century? What happened to self-government as a result of this development? What happened to limited government? “The tumult of crisis and reform in the ten depression years massively enlarged and forever transformed the scanty Jeffersonian government over which Herbert Hoover had been elected to preside in 1928” (David Kennedy, Freedom From Fear, Oxford History of the United States, 10). C. According to Henry Hazlitt, what happened to the power of the federal government in the 20th century? What happened to self-government as a result of this development? What happened to limited government? “As [the power of government] has increased, it has also become concentrated in fewer and fewer hands. In America the towns and villages have steadily lost power to the States, the States to the Federal Government, and Congress to the President” (Henry Hazlitt, Man vs. the Welfare State, 2). D. According to Thomas Jefferson, what is a likely consequence of centralization of power? “What has destroyed liberty and the rights of man in every government which has ever existed under the sun? The generalizing and concentrating all cares and powers into one body …. The elementary republics of the wards, the county republics, the State republics, and the republic of the Union would form a gradation of authorities … holding every one its delegated share of powers, and constituting truly a system of fundamental balances and checks for the government. Where every man is a sharer in the direction of his ward-republic, or of some of the higher ones … he will let the heart be torn out of his body sooner than his power be wrested from him by a Caesar or a Bonaparte” (Jefferson to Joseph C. Cabell, February 2, 1816). For more on the consequences of centralization of power, see also: 1. “Since the 1930s and especially since the 1960s, many contend that there is almost no limit to the exercise of national power, so long as a national majority wants some policy and so long as it is not expressly prohibited by the Constitution” (James Ceaser, American Government, Seventh Edition, 47). 2. “The Britons had the will to fight; what they lacked was experienced leadership, both in politics and in war. This was inevitable; it was everywhere the result of late imperial

government, where all executive power had been transferred to the officials of the centralized and bureaucratic state, to the suppression of local initiative and civic spirit….The Romano- Britons…were a ready prey for any upstart of coarser fibre and more brutal energy who should learn the easy trick of turning their docility to the service of his ends” (R.G. Collingwood, Roman Britain and the English Settlements, 1936, 307).

Activity 32: Political Philosophies and Political Parties “Divide et impera [is] the … axiom of tyranny” (James Madison to Thomas Jefferson, October 24, 1787). A. Based on James Ceaser’s definitions, was Ronald Reagan a liberal or a conservative? Why?

• “Modern-day liberals, who are mostly found within the Democratic party, have generally supported an expansion of the role of government, especially the role of the federal government…. Conservatives, who are most often associated with the Republican party, have generally opposed the growth of government, especially on the national level…” (James Ceaser, American Government, Seventh Edition, 19).

• [The Founding Fathers] knew well that if too much power and authority were vested in

the central government, even if intended for a noble purpose, not only would liberty be threatened but it just wouldn’t work.... I think during the last decade and before, we’ve gotten a taste of just what [they were] warning us about. So much power had centralized in Washington that frustration and stagnation ruled the day.” (Ronald Reagan, “Toasts at a White House Dinner Honoring the Nations’s Governors,” February 26, 1984)

B. Based on James Ceaser’s definitions, was Franklin Roosevelt a liberal or a conservative? Is the expansion of federal power in the 20th century and beyond an example of liberal or conservative policy? Why?

• “[Franklin] Roosevelt called not only for a centralization of government, but also for a nationalization of politics....He exhorted voters and citizens to turn to Washington as the center of power on which to exert their pressures and project their expectations....A principle and reiterated theme...of his administration was to assure the people that the federal government could solve their problems.” (Samuel Beer, “In Search of a New Public Philosophy,” In Anthony King (ed.), The New American Political System, Washington, D.C.: American Enterprise Institute, 1978, p. 8).

• “The federal government was originally conceived as a government of broad but

enumerated powers.... In the twentieth century, the federal government has assumed more tasks and responsibilities in numerous areas, ranging from regulating aspects of the economy, to providing social security and medical care, to playing an important role in housing grants and education. The list of activities now performed by the national government, in fact, can go on and on. The federal government operates today under few

of the restrictions that once made it a government of enumerated powers in its relationship to the states….Government in the twentieth century expanded for a number of reasons.... People accepted the basic idea of the welfare state and came to expect government to provide security for medical treatment and retirement and to supply more services, from job training to subsidies for artists and opera companies ” (James Ceaser, American Government, Seventh Edition, 17, 19).

C. Based on this statement, what is the best way to describe the two political parties? Is there any alternative to the two parties as they exist today? “TWENTY YEARS AGO [1948] I was an extreme right-wing Republican, a young and lone ‘Neanderthal’ (as the liberals used to call us)…. Today, I am most likely to be called an extreme leftist, since I favor immediate withdrawal from Vietnam, denounce U.S. imperialism, advocate Black Power and have just joined the new Peace and Freedom Party. And yet my basic political views have not changed by a single iota in these two decades! It is obvious that something is very wrong with the old labels, with the categories of ‘left’ and ‘right,’ and with the ways in which we customarily apply these categories to American political life. My personal odyssey is unimportant; the important point is that if I can move from ‘extreme right"’ to "extreme left" merely by standing in one place, drastic though unrecognized changes must have taken place throughout the American political spectrum over the last generation” (Murray Rothbard, “Right- Wing Liberal,” 1968). D. Based on these statements, what is the best way to describe the two political parties? Is there any alternative to the two parties as they exist today?

• “An avowed socialist, [William Appleman] Williams emphasized [that] radicals must break completely with the conservative-and-liberal program of centralized corporate welfare capitalism and plump … for decentralization: “The core radical ideals and values of community, equality, democracy, and humaneness simply cannot … be realized … through more centralization and consolidation. These radical values can most nearly be realized through decentralization and through the creation of many truly human communities…. Such decentralization is essential if democracy is to be maintained and extended …. Our humanity is being pounded out of us by the consolidated power of a nationalist corporate welfare capitalism’” (William Appleman Williams as quoted in Murray Rothbard, “Old Right/New Left,” 1966).

• “It is no coincidence that the transformation of America from a limited republic to a

monolithic welfare-warfare state coincided with the discrediting of secession as an appropriate response to excessive government” (Ron Paul, “Scottish Referendum Gives Reason to Be Hopeful,” September 28, 2014).

For the entire William Appleman Williams quotation: “The core radical ideals and values of community, equality, democracy, and humaneness simply cannot in the future be realized and sustained--nor should they be sought--through more centralization and consolidation. These radical values can most nearly be realized through

decentralization and through the creation of many truly human communities. If one feels the need to go ancestor-diving in the American past and spear a tradition that is relevant to our contemporary predicament, then the prize trophy is the Articles of Confederation. .. Such decentralization is technologically and economically possible. Such decentralization is essential if democracy is to be maintained and extended. And such decentralization is psychologically and morally mandatory. Our humanity is being pounded and squeezed out of us by the consolidated power of a nationalist corporate welfare capitalism” (“Williams on policy for U.S. radicals,” National Guardian, November 27, 1965, p. 6).

Activity 33: Liberty Analysis (Living under a government that has limits on what it can do through a constitution, Part 1) Key Question: Which side winning would keep the Federal and State governments within the limits of the U.S. Constitution? (That side winning would promote liberty in the sense of constitutionally limited government.) A. Which side in Helvering v. Davis would most promote liberty in the sense of constitutionally limited government? Why would this side promote this essential goal of liberty? (If this meaning of liberty does not apply to this case, say that it does not apply and explain why it does not apply.) “Title II has the caption "Federal Old-Age Benefits." The benefits are of two types, first, monthly pensions, and second, lump sum payments…. The scheme of benefits created by the provisions of Title II is not in contravention of the limitations of the Tenth Amendment…. Congress may spend money in aid of the ‘general welfare.’ Constitution, Art. I, section 8; United States v. Butler, 297 U.S. 1, 65; Steward Machine Co. v. Davis, supra. There have been great statesmen in our history who have stood for other views. We will not resurrect the contest. It is now settled by decision. United States v. Butler, supra. The conception of the spending power advocated by Hamilton and strongly reinforced by Story has prevailed over that of Madison, which has not been lacking in adherents…. Nor is the concept of the general welfare static. Needs that were narrow or parochial a century ago may be interwoven in our day with the wellbeing of the Nation. What is critical or urgent changes with the times” (U.S. Supreme Court, Helvering v. Davis, 1937). Note: Helvering is the IRS commissioner. B. Which side in Wickard v. Filburn would most promote liberty in the sense of constitutionally limited government? Why would this side promote this essential goal of liberty? (If this meaning of liberty does not apply to this case, say that it does not apply and explain why it does not apply.) “It is urged that, under the Commerce Clause of the Constitution, Article I, § 8, clause 3, Congress does not possess the power it has in this instance sought to exercise…. This Act extends federal regulation to production not intended in any part for commerce, but wholly for

consumption on the farm…. The present Chief Justice has said in summary of the present state of the law: The commerce power is not confined in its exercise to the regulation of commerce among the states. It extends to those activities intrastate which so affect interstate commerce … as to make regulation of them appropriate means to the attainment of a legitimate end, the effective execution of the granted power to regulate interstate commerce. . .” (U.S. Supreme Court, Wickard v. Filburn, 1942). Note: Wickard is trying to stop Filburn (the farmer) from growing wheat for his own use.

C. Which side in Gonzales v. Raich would most promote liberty in the sense of constitutionally limited government? Why would this side winning promote this essential feature of liberty? (If this meaning of liberty does not apply to this case, say that it does not apply and explain why it does not apply.) “California’s Compassionate Use Act authorizes limited marijuana use for medicinal purposes. Respondents Raich and Monson are California residents who both use doctor-recommended marijuana for serious medical conditions. After federal Drug Enforcement Administration (DEA) agents seized and destroyed all six of Monson’s cannabis plants, respondents brought this action seeking injunctive and declaratory relief prohibiting the enforcement of the federal Controlled Substances Act (CSA) to the extent it prevents them from possessing, obtaining, or manufacturing cannabis for their personal medical use. Respondents claim that enforcing the CSA against them would violate the Commerce Clause and other constitutional provisions.” (U.S. Supreme Court, Gonzales, Attorney General, et al. v. Raich et al., 2005) D. Which side in Gonzales v. Oregon would most promote liberty in the sense of living under a constitutionally limited government? Why would this side promote this essential feature of liberty? (If this meaning of liberty does not apply to this case, say that it does not apply and explain why it does not apply.) “The Oregon Death With Dignity Act (ODWDA) exempts from civil or criminal liability state- licensed physicians who … dispense or prescribe a lethal dose of drugs upon the request of a terminally ill patient. In 2001, the Attorney General [of the United States] issued an Interpretive Rule … declaring that using controlled substances to assist suicide is not a legitimate medical practice and that dispensing or prescribing them for this purpose is unlawful under the CSA (Federal Controlled Substances Act).” (Gonzales v. Oregon, January 17, 2006)

Activity 34: Texas Constitution Mini-Lecture: We, the people of Texas, have established a Texas government of relatively limited power. This can be seen, in the first place, from the way in which we set up the three branches of the Texas government in our Constitution (ratified in 1876). A. How does the Texas Constitution limit the power of the Texas Governor?

The executive branch of Texas is set up differently than the executive branch of the federal government. The executive power of the federal government is vested in one person—the president. But Texas has a plural executive. This means that there are a number of elected executive officials other than the governor. In the case of Texas, there are six executive officers in the plural executive. These include a Governor, a Lieutenant Governor and a Attorney General, among others: “The Executive Department of the State shall consist of a Governor, who shall be the Chief Executive Officer of the State, a Lieutenant Governor, Secretary of State, Comptroller of Public Accounts, Commissioner of the General Land Office, and Attorney General” (Texas Constitution, IV.1). Since these executive officials are elected separately from the governor, they may not agree with the governor and are not bound to follow the governor’s orders. B. How does the Texas Constitution limit the power of the Texas Legislature? In the case of the legislative branch, the legislature only meets once every two years for a little more than the length of a college semester (on odd-numbered years). The Texas Constitution further limits the legislature by requiring that the Texas government always have a balanced budget. (Any time the legislature wants to borrow money, they have to propose a constitutional amendment, to which the people of Texas must give their consent). The Texas Constitution also defines policy in many important areas, so the legislature must propose an amendment if they wish to do things differently in these areas. C. How does the Texas Constitution limit the power of the Texas Judicial Branch? The Texas Constitution divides the judicial branch into two parts. One part hears only criminal cases, the other hears only civil cases. As in the case of the Executive Branch, the most effective way to limit political power is to divide it into parts. Also, judges in Texas are elected and not appointed. This makes it possible for the people of Texas to get rid of judges whom they do not think are doing a good job. Finally, since the Constitution goes into so much detail, judges need to base their rulings on the words of the Constitution rather than to change the meanings of the words as they see fit. D. What does the Texas Government have to do before it goes into debt? What is a “general obligation bond”? How does this place a limit on the power of the Texas government? The Federal government can go into debt whenever it wants, whereas the Texas government must ask the permission of the people before it goes into debt (by proposing a constitutional amendment). Perhaps this is why the Texas government is much more financially responsible than the Federal government. (Note: whenever the Texas government proposes to borrow money, it is described as a “general obligation bond” on the ballot. So whenever you vote for a general obligation bond, you are giving the Texas government permission to borrow money).

Activity 35: Executive Branch of the Texas Government “It may be a reflection on human nature that [devices such as checks and balances] should be necessary to control the abuses of government. But what is government itself but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary” (James Madison, Federalist 51, February 6, 1788). A. What is a plural executive? How does the executive branch of the Texas government differ from the executive branch of the US government? The executive branch of Texas is set up differently than the executive branch of the federal government. The executive power of the federal government is vested in one person—the president. But Texas has a plural executive. This means that there are a number of elected executive officials other than the governor. In the case of Texas, there are six executive officers in the plural executive. These include the Lieutenant Governor and the Attorney General, among others: “The Executive Department of the State shall consist of a Governor, who shall be the Chief Executive Officer of the State, a Lieutenant Governor, Secretary of State, Comptroller of Public Accounts, Commissioner of the General Land Office, and Attorney General” (Texas Constitution, IV.1). Since these executive officials are elected separately from the governor, they may not agree with the governor and are not bound to follow the governor’s orders. “The executive Power shall be vested in a President of the United States of America.” (US Constitution, Article II.1, par. 1) B. Why does Texas have a plural executive? The purpose of having a plural executive is to limit the power of the governor. This reflects the general goal of the framers of the Texas constitution, which was to limit each of the three branches of the state government. Under this arrangement, the governor possesses only a part of the executive power. The rest is held by other officials who are completely independent of the governor. This creates a system of checks and balances within the executive branch of itself.

C. How does the relationship between the Texas Governor and the Texas Attorney General differ from the relationship between the US President and the US Attorney General (who is head of the Justice Department)? “The Executive Department of the State shall consist of a Governor, who shall be the Chief Executive Officer of the State, a Lieutenant Governor, Secretary of State, Comptroller of Public Accounts, Commissioner of the General Land Office, and Attorney General” (Texas Constitution, IV.1). “All the above officers of the Executive Department (except Secretary of State) shall be elected by the qualified voters of the State at the time and places of election for members of the Legislature” (Texas Constitution, IV.2).

“[The President]…shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law.” (Article II, Section II of the US Constitution) D. In what area is the Texas governor weakest? The area in which the governor is weakest is in the area of administration. That is, there are very few ways in which the governor can get executive officials to do what he or she wants them to do. Remember that a number of the top executive officials are elected independently of the governor and so do not have to answer to the governor. Also, since the governor has very little power to remove unelected executive officials, these officials do not have to act in a way that is pleasing to the governor. This, however, may not be such a big deal. The president of the United States is a lot more powerful than the governor of Texas in this area, but rarely puts a lot of time and energy into trying to oversee the way in which various policies are carried out.

Texas History from the Perspective of Liberty, Part 6

Activity 36: Based on T.R. Fehrenbach, Lone Star (See PowerPoint slides for this activity on eCampus) A. Identify examples of injustice (violating person or property) or justice (securing or defending person or property) in this passage. Explain why these actions are unjust or just. B. Identify examples of people acquiring land justly (without violating anyone else’s rights) or unjustly (by violating the rights of others). Explain why these are examples of justly or unjustly acquiring land. C. Identify examples of people obtaining or failing to obtain happiness in this passage (for example, providing themselves with adequate food, shelter, and clothing). Explain why these are examples of obtaining or not obtaining happiness. D. Identify examples of just or unjust social organizations (systems that exist for the benefit of all, in which no person or group benefits from the violation of the person and property or possibility of happiness of any other person or group, as opposed to systems that exist for the benefit of a few at the expense of the person and property or possibility of happiness of everyone else; or vice-versa).

Activity 37: Based on T.R. Fehrenbach, Lone Star (See PowerPoint slides for this activity on eCampus) A. Identify examples of injustice (violating person or property) or justice (securing or defending person or property) in this passage. Explain why these actions are unjust or just. B. Identify examples of people acquiring land justly (without violating anyone else’s rights) or unjustly (by violating the rights of others). Explain why these are examples of justly or unjustly acquiring land. C. Identify examples of people obtaining or failing to obtain happiness in this passage (for example, providing themselves with adequate food, shelter, and clothing). Explain why these are examples of obtaining or not obtaining happiness. D. Identify examples of just or unjust social organizations (systems that exist for the benefit of all, in which no person or group benefits from the violation of the person and property or possibility of happiness of any other person or group, as opposed to systems that exist for the benefit of a few at the expense of the person and property or possibility of happiness of everyone else; or vice-versa).

Activity 38: Texas Courts; Federal Courts and Judicial Review A. Based on the following description, what makes the Texas court system different from that of other states? “Three characteristics of the judicial system in Texas distinguish it from the national norm: it has two appellate courts of last resort, its trial courts do not have uniform jurisdiction of subject matter, and its judges are chosen in partisan elections…. The Texas judicial system has been called one of the most complex in the United States, if not the world. The state has three levels of trial courts-district, county, and inferior-and there is no uniformity of jurisdiction among the courts at each level…” (“Judiciary,” Texas Historical Association Online, accessed January 2013). http://www.tshaonline.org/handbook/online/articles/jzj01 B. Based on the following passages from the Texas Constitution, what is at least one way the Texas highest courts are similar to the U.S. Supreme Court? What is at least one way it is different?

http://www.tshaonline.org/handbook/online/articles/jzj01

“The Supreme Court shall consist of the Chief Justice and eight Justices, any five of whom shall constitute a quorum, and the concurrence of five shall be necessary to a decision of a case…. Said Justices shall be elected (three of them each two years) by the qualified voters of the state at a general election; shall hold their offices six years…” (Article 5, Sec. 2, Texas Constitution). “The Supreme Court shall exercise the judicial power of the state except as otherwise provided in this Constitution. Its jurisdiction shall be co-extensive with the limits of the State and its determinations shall be final except in criminal law matters. Its appellate jurisdiction shall be final and shall extend to all cases except in criminal law matters and as otherwise provided in this Constitution or by law…” (Article 5, Sec. 3, Texas Constitution). “The Court of Criminal Appeals shall consist of eight Judges and one Presiding Judge…. The Presiding Judge and the Judges shall be elected by the qualified voters of the state at a general election and shall hold their offices for a term of six years…” (Article 5, Sec. 4, Texas Constitution). “The Court of Criminal Appeals shall have final appellate jurisdiction coextensive with the limits of the state, and its determinations shall be final, in all criminal cases of whatever grade, with such exceptions and under such regulations as may be provided in this Constitution or as prescribed by law. The appeal of all cases in which the death penalty has been assessed shall be to the Court of Criminal Appeals. The appeal of all other criminal cases shall be to the Courts of Appeal as prescribed by law…” (Article 5, Sec. 5, Texas Constitution). C. According to Oliver Ellsworth, what is the job of the federal courts? “This Constitution defines the extent of the powers of the [Federal] government. If [Congress] should at any time overleap their limits, the judicial department is a constitutional check. If the United States go beyond their powers, if they make a law which the Constitution does not authorize, it is void; and the judicial power ... will declare it to be void” (Oliver Ellsworth, Connecticut Ratifying Convention, January 7, 1788) D. According to Alexander Hamilton, what is the job of the federal courts? “No legislative act ... contrary to the Constitution can be valid …. The courts were designed...to keep [Congress] within the limits assigned to their authority” (Alexander Hamilton, Federalist 78, May 28, 1788). For more on the Supreme Court’s authority to keep government within the limits of the US Constitution, see: 1. “If [Congress] exceed these [enumerated] powers, the judiciary will declare it void, or else the people will have a right to declare it void” (George Nicholas, Virginia Ratifying Convention, June 16, 1788). 2. “If any law made by the federal government shall be extended beyond the power granted by the proposed Constitution...it will be an error, and adjudged by the courts of law to be void”

(Samuel Adams, Massachusetts Ratifying Convention, January 30, 1788) 3. “Under this Constitution, the legislature may be restrained, and kept within its prescribed bounds, by the interposition of the judicial department.. It is possible that the legislature...may transgress the bounds assigned to it...but when...the judges...find it to be incompatible with the superior power of the Constitution,--it is their duty to pronounce it void.” (James Wilson, at Pennsylvania Ratifying Convention, December 1, 1787) 4. “If a law should be made inconsistent with those powers vested by this instrument in Congress, the judges, as a consequence of their independence, and the particular powers of government being defined, will declare such law to be null and void; for the power of the Constitution predominates. Any thing, therefore, that shall be enacted by Congress contrary thereto, will not have the force of law.” (James Wilson, Pennsylvania Ratifying Convention, December 7, 1787) 5. “Can [the Federal government] go beyond the delegated powers? If they were to make a law not warranted by any of the powers enumerated, it would be considered by judges as an infringement of the Constitution which they are to guard. They would not consider such a law as coming under their jurisdiction. They would declare it void” (Marshall, at the Virginia Ratifying Convention, June 20, 1788) 6. “To the courts of the general government are also confined all cases in law and equity, arising under the proposed constitution….Whether therefore, any laws or regulations of the Congress, or any acts of its President or other officers, are contrary to, or not warranted by the constitution, rests only with the judges, who are appointed by Congress to determine; by whose determinations every States must be bound.” (Luther Martin, in an address to the Maryland legislature, November 29, 1787, 3 Farrand 220). 7. “The proposed Government cannot be deemed a national one; since its jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects. It is true in controversies relating to the boundary between the two jurisdictions, the tribunal which is ultimately to decide is to be established under the general Government. But…the decision is to be made, according to the rules of the Constitution; and all the usual and most effectual precautions are taken to secure this impartiality.” (James Madison, Federalist 39, January 16, 1788) 8. “In the United States, the legislative authority is subjected…to the control arising from the constitution. From the constitution, the legislative department, as well as every other part of government, derives its power: by the constitution, the legislative, as well as every other department, must be directed…. Now, let us suppose, that the legislature should pass an act, manifestly repugnant to some part of the constitution; and that the operation and validity of both should come regularly in question before a court, forming a portion of the judicial department…. In what manner is this question to be decided? The answer seems to be a very easy one. The supreme power of the United States has given one rule: a subordinate power in the United States has given a contradictory rule: the former is the law of the land: as a necessary consequence, the

latter is void, and has no operation. In this manner it is the right and it is the duty of a court of justice, under the constitution of the United States, to decide…. The effects of this salutary regulation, necessarily resulting from the constitution, are great and illustrious. In consequence of it, the bounds of the legislative power--a power the most apt to overleap its bounds--are not only distinctly marked in the system itself; but effectual and permanent provision is made, that every transgression of those bounds shall be adjudged and rendered vain and fruitless. What a noble guard against legislative despotism!” (James Wilson, “Comparisons of Constitutions,” Lectures on Law, 1791)

9. If, then, a government, composed of Legislative, Executive and Judicial departments, were established, by a Constitution, which imposed no limits on the legislative power, the consequence would inevitably be, that whatever the legislative power chose to enact, would be lawfully enacted, and the judicial power could never interpose to pronounce it void….In order, therefore, to guard against so great an evil, it has been the policy of all the American states…and of the people of the United States, when they framed the Federal Constitution, to define with precision the objects of the legislative power, and to restrain its exercise within marked and settled boundaries. If any act of Congress, or of the Legislature of a state, violates those constitutional provisions, it is unquestionably void; though, I admit, that as the authority to declare it void is of a delicate and awful nature, the Court will never resort to that authority, but in a clear and urgent case. If, on the other hand, the Legislature of the Union, or the Legislature of any member of the Union, shall pass a law, within the general scope of their constitutional power, the Court cannot pronounce it to be void, merely because it is, in their judgment, contrary to the principles of natural justice. The ideas of natural justice are regulated by no fixed standard: the ablest and the purest men have differed upon the subject; and all that the Court could properly say, in such an event, would be, that the Legislature (possessed of an equal right of opinion) had passed an act which, in the opinion of the judges, was inconsistent with the abstract principles of natural justice. (Justice Patterson in Calder v. Bull, 1798)

10. “Mr. Madison concluded with observing, that from the best examination which he had been able to give to the subject, he was convinced that Congress does not possess a law like [the Sedition Act]; but if there be a majority determined to pass it, he could only hope that the Judges would exercise the power placed in them of determining the law an unconstitutional law, if, upon scrutiny, they find it to be so” (James Madison, July 10, 1798, speaking in the House of Representatives).

11. “It is objected that the judicial authority is to be regarded as the sole expositor of the Constitution in the last resort….The proper answer to the objection is, that the resolution…supposes that dangerous powers, not delegated, may not only be usurped by the other departments, but that the judicial department, also, may exercise or sanction dangerous powers beyond the grant of the Constitution….However true…it may be, that the judicial department is, in all questions submitted to it by the forms of the Constitution, to decide in the last resort, this resort must necessarily be deemed the last in relation to the authorities of the other departments of the government; not in relation to the rights of the parties to the constitutional compact….On any other hypothesis…the concurrence of this department with the

others in usurped powers, might subvert forever…the very Constitution which all were instituted to preserve.” (James Madison, Kentucky Resolutions, 1799-1800)

12. “The obvious necessity of a controul on the laws of the States, so far as they might violate the Constn. & laws of the U.S. left no option but as to the mode. The modes presenting themselves were 1. a Veto on the passage of the State laws. 2. a Congressional repeal of them, 3 a judicial annulment of them. The first though extensively favored at the outset, was found on discussion, liable to insuperable objections, arising from the extent of Country, and the multiplicity of State laws. The second was not free from such as gave a preference to the third as now provided by the Constitution.” (James Madison to N.P. Trist, December 1831). 13. “Mr. Gerry doubts whether the Judiciary ought to form a part of [a Council of Revision], as they will have a sufficient check agst. encroachments on their own department by their exposition of the laws, which involved a power of deciding on their Constitutionality. In some States the Judges had actually set aside laws as being agst. the Constitution. This was done too with general approbation.” (Gerry at the Constitutional Convention, Madison’s Notes, June 4, 1787) 14. “Mr. Govr. Morris was more & more opposed to the negative [of the Natl: Legislature on the laws of the States contravening the articles of Union]. The proposal of it would disgust all the States. A law that ought to be negatived will be set aside by the Judiciary dept. and if that security should fail; may be repealed by a Nationl. Law.” (Morris at the Constitutional Convention, Madison’s Notes, July 17, 1787)

For the reason why a second highest court was added in Texas, see:

“The revival of the economy after Reconstruction increased the business of the courts, and the Supreme Court fell behind in its docket of civil and criminal appeals. To relieve it, the Constitution of 1876 established another appellate court of last resort-the Court of Appeals…. The intent was to leave the Supreme Court free to decide the civil appeals from the district courts…” (“Judiciary,” Texas Historical Association Online, accessed January 2013).

For the Court Structure of Texas, see:

http://www.courts.state.tx.us/

Protective Barrier Number 6: Federalism

Activity 39: Federalism and the U.S. Constitution Federalism is defined as the division of power between the Federal and State governments, established by the U.S. Constitution, which assigns certain powers to the Federal government (especially in Article I.8) and reserves all other powers of government to the State governments (as explicitly stated in Amendment X). “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people” (10th Amendment of the U.S. Constitution).

“It becomes all therefore who are friends of a Government based on free principles to reflect, that by denying the possibility of a system partly federal and partly consolidated, and who would convert ours into one either wholly federal or wholly consolidated, in neither of which forms have individual rights, public order, and external safety, been all duly maintained, they aim a deadly blow at the last hope of true liberty on the face of the Earth” (James Madison, Notes on Nullification, 1834).

“[T]he States can best govern our home concerns and the general government our foreign ones. I wish, therefore to see maintained that wholesome distribution of powers established by the constitution for the limitation of both; and never to see all offices transferred to Washington, where, further withdrawn from the eyes of the people, they may more secretly be bought and sold at market” (Thomas Jefferson, letter to Judge William Johnson, 1823).

A. According to Thomas Jefferson, which government is superior in authority, federal or state? “With respect to our State and Federal governments, I do not think their relations are correctly understood by foreigners. They suppose the former are subordinate to the latter. This is not the case. They are co-ordinate departments of one simple and integral whole” (Thomas Jefferson, letter to Cartwright, 5 June 1824). B. According to the “supremacy clause” in Article VI, which government is superior in authority, federal or state? “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land” (Article VI, U.S. Constitution). C. According to Alexander Hamilton, which government is superior in authority, federal or state?

“It will not follow from this doctrine [of the supremacy of the Federal government] that acts of the [Federal government] which are not pursuant to its constitutional powers but which are invasions of the residuary authorities of the [States] will become the supreme law of the land. These will be merely acts of usurpation and will deserve to be treated as such… It will not, I presume, have escaped observation that it expressly confines this supremacy to laws made pursuant to the Constitution…” (Alexander Hamilton, Federalist 33, January 2, 1788). D. Based on these statements, what is a primary purpose of federalism? “What has destroyed liberty and the rights of man in every government which has ever existed under the sun? The generalizing and concentrating all cares and powers into one body…. The elementary republics of the wards, the county republics, the State republics, and the republic of the Union would form a gradation of authorities … holding every one its delegated share of powers, and constituting truly a system of fundamental balances and checks for the government. Where every man is a sharer in the direction of his ward-republic, or of some of the higher ones … he will let the heart be torn out of his body sooner than his power be wrested from him by a Caesar or a Bonaparte” (Thomas Jefferson, letter to Joseph C. Cabell, February 2, 1816). “[W]hen all government, domestic and foreign, in little as in great things, shall be drawn to Washington as the center of all power, it will render powerless the checks provided of one government on another” (Thomas Jefferson, letter to Charles Hammond, 1821). For more on the consequences of consolidated government, see: “The Britons had the will to fight; what they lacked was experienced leadership, both in politics and in war. This was inevitable; it was everywhere the result of late imperial government, where all executive power had been transferred to the officials of the centralized and bureaucratic state, to the suppression of local initiative and civic spirit…. The Romano-Britons … were a ready prey for any upstart of coarser fibre and more brutal energy who should learn the easy trick of turning their docility to the service of his ends” (Collingwood, Roman Britain and the English Settlements, 307).

Protective Barrier Number 7: Independence—that is, not being ruled by people outside of

our political community (also known as independence).

Activity 40: Independence from Other Nations A. Which meaning of liberty is illustrated by these passages from Herodotus? Why might this meaning of liberty be important?

• “The Persians always considered it to be a terrible thing to be ruled by the Medes. So now that they found a leader, they were glad to become free.” (Herodotus, Histories, 127, tr. Michael Iachetta)

• “Hytaspes replied… ‘O King, you have caused the Persians to be free instead of slaves

and to rule all others rather than to be ruled by others.” (Herodotus, Histories, 210, tr. Michael Iachetta)

B. Which meaning of liberty is being discussed in the first paragraph of the Declaration of Independence? From whom or what do people get this right? “When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation. We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights….”

C. According to St. George Tucker, what is the definition of political slavery? Based on this definition, what would be the definition of political liberty? “When a nation is, from any external cause, deprived of the right of being governed by it’s own laws, only, such a nation may be considered as in a state of political slavery. Such is the state of conquered countries, and, generally, of colonies, and other dependant governments. Such was the state of united America before the revolution. In this case the personal rights of the subject may be so far secured by wholesome laws, as that the individual may be esteemed free, whilst the state is subject to a higher power” (St. George Tucker, A Dissertation on Slavery, in Blackstone's Commentaries, 1803). D. Based on this statement, what sort of conditions would justify one political community to seek political independence from another political community? “We hold these truths to be self-evident, that all men are created equal, that they 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, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security” (American Declaration of Independence, 1776).

Activity 41: Independence of States within the United States “Do [the fundamental principles of the confederation] require that in the establishment of the Constitution, the States should be regarded as distinct and independent sovereigns? They are so regarded by the Constitution…” (James Madison, Federalist 40, January 18, 1788). A. In what sense is Texas an independent State? From whom is Texas independent? What are the limits on Texas independence? “Texas is a free and independent State, subject only to the Constitution of the United States, and the maintenance of our free institutions and the perpetuity of the Union depend upon the preservation of the right of local self-government, unimpaired to all the States” (Article 1, Section 1 of the Texas Constitution, 1876). B. According to Madison, in what sense are the States independent? In what areas are the States independent? In what areas are they not independent? “[The States] form distinct and independent portions of the supremacy, no more subject, within their respective spheres, to [the National Government] than [the National Government] is subject to them, within its own sphere . . . [The] jurisdiction [of the National Government] extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects.” (James Madison, Federalist 39, January 16, 1788) C. According to Madison, in what sense are the States independent? In what areas are the States independent? In what areas are they not independent? “Do [the] principles [of the confederation] ... require that the powers of the [Federal] government should be limited, and that beyond this limit, the States should be left in possession of their sovereignty and independence? We have seen that … the general powers [of the Federal government] are limited, and that the States in all unenumerated cases, are left in the enjoyment of their sovereign and independent jurisdiction” (James Madison, Federalist 40, January 18, 1788). D. According to Madison, in what sense are the States independent? In what areas are the States independent? In what areas are they not independent? “[The people of the United States are] one people, nation, or sovereignty, for certain purposes, and not so for others” (James Madison to Daniel Webster, March 15, 1833).

Texas History from the Perspective of Liberty, Part 7

Activity 42: Based on T.R. Fehrenbach, Lone Star (See PowerPoint slides for this activity on eCampus) A. Identify examples of injustice (violating person or property) or justice (securing or defending person or property) in this passage. Explain why these actions are unjust or just. B. Identify examples of people acquiring land justly (without violating anyone else’s rights) or unjustly (by violating the rights of others). Explain why these are examples of justly or unjustly acquiring land. C. Identify examples of people obtaining or failing to obtain happiness in this passage (for example, providing themselves with adequate food, shelter, and clothing). Explain why these are examples of obtaining or not obtaining happiness. D. Identify examples of just or unjust social organizations (systems that exist for the benefit of all, in which no person or group benefits from the violation of the person and property or possibility of happiness of any other person or group, as opposed to systems that exist for the benefit of a few at the expense of the person and property or possibility of happiness of everyone else; or vice-versa).

Activity 43: Based on T.R. Fehrenbach, Lone Star (See PowerPoint slides for this activity on eCampus) A. Identify examples of injustice (violating person or property) or justice (securing or defending person or property) in this passage. Explain why these actions are unjust or just. B. Identify examples of people acquiring land justly (without violating anyone else’s rights) or unjustly (by violating the rights of others). Explain why these are examples of justly or unjustly acquiring land. C. Identify examples of people obtaining or failing to obtain happiness in this passage (for example, providing themselves with adequate food, shelter, and clothing). Explain why these are examples of obtaining or not obtaining happiness. D. Identify examples of just or unjust social organizations (systems that exist for the benefit of all, in which no person or group benefits from the violation of the person and property or possibility of happiness of any other person or group, as opposed to systems that exist for the benefit of a few at the expense of the person and property or possibility of happiness of everyone else; or vice-versa).

Activity 44: Texas Declaration of Independence, part 1

“It may become a question of to be, or not to be. And in that event, the great law of nature— self-preservation—operates, and supersedes all other laws” (Stephen F. Austin to Mrs. Mary Austin Holley, August 21, 1835).

“War is our only resource. There is no other remedy. We must defend our rights, ourselves, and our country by force of arms” (Stephen F. Austin, “Circular from the Committee of Safety of the Jurisdiction of Austin,” September 19, 1835).

“Every Anglo-Texan was born with the notion he possessed unalienable rights” (T.R. T.R. Fehrenbach, Lone Star, 189).

The Unanimous Declaration of Independence made by the Delegates of the People of Texas in General Convention at the town of Washington on the 2nd day of March 1836

A. Based on these statements, why did Texans seek independence from Mexico?

“When a government has ceased to protect the lives, liberty and property of the people, from whom its legitimate powers are derived, and for the advancement of whose happiness it was instituted, and so far from being a guarantee for the enjoyment of those inestimable and inalienable rights, becomes an instrument in the hands of evil rulers for their oppression.

When the Federal Republican Constitution of their country, which they have sworn to support, no longer has a substantial existence, and the whole nature of their government has been forcibly changed, without their consent, from a restricted federative republic, composed of sovereign states, to a consolidated central military despotism, in which every interest is disregarded but that of the army and the priesthood, both the eternal enemies of civil liberty, the everready minions of power, and the usual instruments of tyrants.”

B. Based on these statements, why did Texans seek independence from Mexico?

“When, long after the spirit of the constitution has departed, moderation is at length so far lost by those in power, that even the semblance of freedom is removed, and the forms themselves of the constitution discontinued, and so far from their petitions and remonstrances being regarded, the agents who bear them are thrown into dungeons, and mercenary armies sent forth to force a new government upon them at the point of the bayonet.

When, in consequence of such acts of malfeasance and abdication on the part of the government, anarchy prevails, and civil society is dissolved into its original elements. In such a crisis, the first law of nature, the right of self-preservation, the inherent and inalienable rights of the people to appeal to first principles, and take their political affairs into their own hands in extreme cases, enjoins it as a right towards themselves, and a sacred obligation to their posterity, to abolish such government, and create another in its stead, calculated to rescue them from impending dangers, and to secure their future welfare and happiness.”

https://archive.org/stream/austinpapersocto03aust/austinpapersocto03aust_djvu.txt

https://books.google.com/books?id=i1MVAAAAYAAJ&pg=PA68&lpg=PA68&dq=War+is+our+only+resource.++There+is+no+other+remedy.++We+must+defend+our+rights,+ourselves,+and+our+country+by+force+of+arms&source=bl&ots=2gv3lwsd52&sig=Ck-ylKJ5H1eyvqNlY2yv7anwwq0&hl=en&sa=X&ei=QKc2VZCfGYGfsQXY_4HwDg&ved=0CB8Q6AEwAA#v=onepage&q=War%20is%20our%20only%20resource.%20%20There%20is%20no%20other%20remedy.%20%20We%20must%20defend%20our%20rights%2C%20ourselves%2C%20and%20our%20country%20by%20force%20of%20arms&f=false

C. Based on these statements, why did Texans seek independence from Mexico?

“Nations, as well as individuals, are amenable for their acts to the public opinion of mankind. A statement of a part of our grievances is therefore submitted to an impartial world, in justification of the hazardous but unavoidable step now taken, of severing our political connection with the Mexican people, and assuming an independent attitude among the nations of the earth.

The Mexican government, by its colonization laws, invited and induced the Anglo-American population of Texas to colonize its wilderness under the pledged faith of a written constitution, that they should continue to enjoy that constitutional liberty and republican government to which they had been habituated in the land of their birth, the United States of America.

In this expectation they have been cruelly disappointed, inasmuch as the Mexican nation has acquiesced in the late changes made in the government by General Antonio Lopez de Santa Anna, who having overturned the constitution of his country, now offers us the cruel alternative, either to abandon our homes, acquired by so many privations, or submit to the most intolerable of all tyranny, the combined despotism of the sword and the priesthood.”

D. Based on these statements, why did Texans seek independence from Mexico?

“It has sacrificed our welfare to the state of Coahuila, by which our interests have been continually depressed through a jealous and partial course of legislation, carried on at a far distant seat of government, by a hostile majority, in an unknown tongue, and this too, notwithstanding we have petitioned in the humblest terms for the establishment of a separate state government, and have, in accordance with the provisions of the national constitution, presented to the general Congress a republican constitution, which was, without just cause, contemptuously rejected.

It incarcerated in a dungeon, for a long time, one of our citizens, for no other cause but a zealous endeavor to procure the acceptance of our constitution, and the establishment of a state government.

It has failed and refused to secure, on a firm basis, the right of trial by jury, that palladium of civil liberty, and only safe guarantee for the life, liberty, and property of the citizen.”

Activity 45: Texas Declaration of Independence, part 2

A. Based on these statements, why did Texans seek independence from Mexico?

“It has failed to establish any public system of education, although possessed of almost boundless resources, (the public domain,) and although it is an axiom in political science, that unless a people are educated and enlightened, it is idle to expect the continuance of civil liberty, or the capacity for self government.

It has suffered the military commandants, stationed among us, to exercise arbitrary acts of oppression and tyrrany, thus trampling upon the most sacred rights of the citizens, and rendering the military superior to the civil power.

It has dissolved, by force of arms, the state Congress of Coahuila and Texas, and obliged our representatives to fly for their lives from the seat of government, thus depriving us of the fundamental political right of representation.”

B. Based on these statements, why did Texans seek independence from Mexico?

“It has demanded the surrender of a number of our citizens, and ordered military detachments to seize and carry them into the Interior for trial, in contempt of the civil authorities, and in defiance of the laws and the constitution.

It has made piratical attacks upon our commerce, by commissioning foreign desperadoes, and authorizing them to seize our vessels, and convey the property of our citizens to far distant ports for confiscation.

It denies us the right of worshipping the Almighty according to the dictates of our own conscience, by the support of a national religion, calculated to promote the temporal interest of its human functionaries, rather than the glory of the true and living God.”

C. Based on these statements, why did Texans seek independence from Mexico?

“It has demanded us to deliver up our arms, which are essential to our defence, the rightful property of freemen, and formidable only to tyrannical governments.

It has invaded our country both by sea and by land, with intent to lay waste our territory, and drive us from our homes; and has now a large mercenary army advancing, to carry on against us a war of extermination.

It has, through its emissaries, incited the merciless savage, with the tomahawk and scalping knife, to massacre the inhabitants of our defenseless frontiers.

It hath been, during the whole time of our connection with it, the contemptible sport and victim of successive military revolutions, and hath continually exhibited every characteristic of a weak, corrupt, and tyrranical government.”

D. Based on these statements, why did Texans seek independence from Mexico?

“These, and other grievances, were patiently borne by the people of Texas, untill they reached that point at which forbearance ceases to be a virtue. We then took up arms in defence of the national constitution. We appealed to our Mexican brethren for assistance. Our appeal has been made in vain. Though months have elapsed, no sympathetic response has yet been heard from the Interior. We are, therefore, forced to the melancholy conclusion, that the Mexican people

have acquiesced in the destruction of their liberty, and the substitution therfor of a military government; that they are unfit to be free, and incapable of self government.

The necessity of self-preservation, therefore, now decrees our eternal political separation.

We, therefore, the delegates with plenary powers of the people of Texas, in solemn convention assembled, appealing to a candid world for the necessities of our condition, do hereby resolve and declare, that our political connection with the Mexican nation has forever ended, and that the people of Texas do now constitute a free, Sovereign, and independent republic, and are fully invested with all the rights and attributes which properly belong to independent nations; and, conscious of the rectitude of our intentions, we fearlessly and confidently commit the issue to the decision of the Supreme arbiter of the destinies of nations.”

Activity 46: Liberty Analysis (Liberty in the sense of independence—that is, not being ruled by people living outside of your political community) A. Which side in Griswold v. Connecticut would most promote liberty in the sense of independence? Why would this side promote this essential feature of liberty? (If this meaning of liberty does not apply to this case, say that it does not apply and explain why it does not apply.) “Appellants, the Executive Director of the Planned Parenthood League of Connecticut, and its medical director, a licensed physician, were convicted as accessories for giving married persons information and medical advice on how to prevent conception and, following examination, prescribing a contraceptive device or material for the wife’s use. A Connecticut statute makes it a crime for any person to use any drug or article to prevent conception. Appellants claimed that the accessory statute as applied violated the Fourteenth Amendment” (U.S. Supreme Court, Griswold et al. v. Connecticut, 1965). B. Which side in Loving v. Virginia would most promote liberty in the sense of independence? Why would this side promote this essential feature of liberty? (If this meaning of liberty does not apply to this case, say that it does not apply and explain why it does not apply.) “In June 1958, two residents of Virginia, Jeter, a Negro woman, and Richard Loving, a white man, were married in the District of Columbia pursuant to its laws. Shortly after their marriage, the Lovings returned to Virginia and established their marital abode in Caroline County. At the October Term, 1958, of the Circuit Court [388 U.S. 1, 3] of Caroline County, a grand jury issued an indictment charging the Lovings with violating Virginia’s ban on interracial marriages. On January 6, 1959, the Lovings pleaded guilty to the charge and were sentenced to one year in jail; however, the trial judge suspended the sentence for a period of 25 years on the condition that the Lovings leave the State and not return to Virginia together for 25 years….After their convictions, the Lovings took up residence in the District of Columbia. On November 6, 1963, they filed a motion in the state trial court to vacate the judgment and set aside the sentence on the ground that the statutes which they had violated were repugnant to the [the Equal Protection and

Due Process Clauses of the] Fourteenth Amendment” (U.S. Supreme Court, Loving v. Virginia, 1967). C. Which side in Roe v. Wade would most promote liberty in the sense of independence? Why would this side promote this essential feature of liberty? (If this meaning of liberty does not apply to this case, say that it does not apply and explain why it does not apply.) “A pregnant single woman (Roe) brought a class action challenging the constitutionality of the Texas criminal abortion laws, which proscribe procuring or attempting an abortion except on medical advice for the purpose of saving the mother’s life... A three-judge District Court… declared the abortion statutes void as vague and overbroadly infringing those plaintiffs’ Ninth and Fourteenth Amendment rights” (U.S. Supreme Court, Roe et al. v. Wade, District Attorney of Dallas County, 1973). D. Which side in Lawrence v. Texas would most promote liberty in the sense of independence? Why would this side promote this essential feature of liberty? (If this meaning of liberty does not apply to this case, say that it does not apply and explain why it does not apply.) “Responding to a reported weapons disturbance in a private residence, Houston police entered petitioner Lawrence’s apartment and saw him and another adult man, petitioner Garner, engaging in a private, consensual sexual act. Petitioners were arrested and convicted of deviate sexual intercourse in violation of a Texas statute forbidding two persons of the same sex to engage in certain intimate sexual conduct. In affirming, the State Court of Appeals held, inter alia, that the statute was not unconstitutional under the Due Process Clause of the Fourteenth Amendment” (U.S. Supreme Court, Lawrence et al. v. Texas, 2003).

Protective Barrier Number 8: A Bill of Rights

Activity 47: The original purpose of the Bill of Rights “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances” (First Amendment of the U.S. Constitution). “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people” (9th Amendment of the US Constitution). “Bills of Rights ... are not only unnecessary in the proposed Constitution but would even be dangerous. They would contain various exceptions to powers which are not granted; and on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said

that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed?” (Alexander Hamilton, Federalist 84, May 28, 1788). A. Based on Madison’s statement, what is the purpose of the Bill of Rights? How does the Bill of Rights uphold federalism?

“It will suffice to consult the list of amendments proposed by such of the Conventions as considered the powers granted to the new Government too extensive or not safely defined. Besides the restrictive and explanatory amendments to the text of the Constitution, it may be observed, that a long list was premised, under the name and in the nature of ‘declarations of rights;’ all of them indicating a jealousy of the Federal powers, and an anxiety to multiply securities against a constructive enlargement of them” (James Madison, letter to Andrew Stevenson, November 27, 1830).

B. According to Jefferson, which government has power of religion, speech, and press? According to Jefferson, does the First Amendment of the US Constitution apply to the States? According to Jefferson, which right or rights is the First Amendment designed to protect?

• “While we deny that Congress have a right to control the freedom of the press, we have

ever asserted the right of the States, and their exclusive right, to do so” (Thomas Jefferson, letter to Abigail Adams, 11 September, 1804).

• “No power to prescribe any religious exercise or to assume authority in any religious

discipline has been delegated to the General Government. It must then rest with the States” (Thomas Jefferson, letter to Samuel Miller, January 23, 1808).

• “No power over the freedom of religion, freedom of speech, or freedom of the press

being delegated to the United States by the Constitution, nor prohibited by it to the States, all lawful powers respecting the same did of right remain, and were reserved to the people…. Thus was manifested their determination to reserve to themselves the right of judging how far the licentiousness of speech and of the press may be abridged without lessening their useful freedom…” (Thomas Jefferson, Kentucky Resolutions, October 1798).

C. According to Madison, what is the purpose of the First Amendment? How does the Bill of Rights uphold federalism? “[Mr. James Madison] thought this subject of the liberty of the press was sacred, and ought to be left where the Constitution has left it. The States have complete power on the subject, and when Congress legislates, it ought to have confidence in the States, as the States ought also to have confidence in Congress, or our Government is gone…. He believed there was nowhere any complaint of a want of proper laws under the State Governments; and though there may not be remedies found for every grievance in the General Government, what it wants of power will be

found in the State Governments, and there can be no doubt but that power will be duly exercised when necessity calls for it” (James Madison, July 10, 1798, speaking in the House of Representatives). D. According to Wilson, what is the danger of adding a Bill of Rights to the US Constitution? How does Madison address this danger by adding the 9th amendment?

• “A bill of rights annexed to a constitution is an enumeration of the powers reserved. If we attempt an enumeration, everything that is not enumerated is presumed to be given” (James Wilson, Pennsylvania Ratifying Convention, November 28, 1787).

• “It has been objected also against a bill of rights, that, by enumerating particular

exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration, and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the general (i.e. Federal) government, and were consequently insecure. This is one of the most plausible arguments I have ever heard urged against the admission of a bill of rights into this system; but, I conceive, that may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the 4th resolution (i.e. the original draft of the 9th amendment)” (James Madison, speaking in Congress, June 8, 1789).

Texas History from the Perspective of Liberty, Part 8

Activity 48: Based on T.R. Fehrenbach, Lone Star (See PowerPoint slides for this activity on eCampus) A. Identify examples of injustice (violating person or property) or justice (securing or defending person or property) in this passage. Explain why these actions are unjust or just. B. Identify examples of people acquiring land justly (without violating anyone else’s rights) or unjustly (by violating the rights of others). Explain why these are examples of justly or unjustly acquiring land. C. Identify examples of people obtaining or failing to obtain happiness in this passage (for example, providing themselves with adequate food, shelter, and clothing). Explain why these are examples of obtaining or not obtaining happiness. D. Identify examples of just or unjust social organizations (systems that exist for the benefit of all, in which no person or group benefits from the violation of the person and property or possibility of happiness of any other person or group, as opposed to systems that exist for the benefit of a few at the expense of the person and property or possibility of happiness of everyone else; or vice-versa).

Activity 49: Based on T.R. Fehrenbach, Lone Star (See PowerPoint slides for this activity on eCampus) A. Identify examples of injustice (violating person or property) or justice (securing or defending person or property) in this passage. Explain why these actions are unjust or just. B. Identify examples of people acquiring land justly (without violating anyone else’s rights) or unjustly (by violating the rights of others). Explain why these are examples of justly or unjustly acquiring land. C. Identify examples of people obtaining or failing to obtain happiness in this passage (for example, providing themselves with adequate food, shelter, and clothing). Explain why these are examples of obtaining or not obtaining happiness. D. Identify examples of just or unjust social organizations (systems that exist for the benefit of all, in which no person or group benefits from the violation of the person and property or possibility of happiness of any other person or group, as opposed to systems that exist for the benefit of a few at the expense of the person and property or possibility of happiness of everyone else; or vice-versa).

Protective Barrier Number 9:

Equality: Government Must not Harm the Life, Liberty, and Property of Any Citizen, No Exceptions

Activity 50: Equality and the Declaration of Independence “All free men, when they form a social compact, have equal rights…” (Sec. 3, Bill of Rights, Texas Constitution). “The abolition of domestic slavery is the great object of desire in those colonies, where it was unhappily introduced in their infant state” (Thomas Jefferson, A Summary View of the Rights of British America, 1774). “The introduction of slavery into this country [of Virginia] is at this day considered among its greatest misfortunes by a very great majority of those who are reproached for an evil which the present generation could no more have avoided than an hereditary gout or leprosy. The malady has proceeded so far as to render it doubtful whether any specific can be found to eradicate, or even to palliate, the disease” (St. George Tucker to Jeremy Belknap, January 24, 1795). “In this is to be found the secret of the domestic slave trade of the South, and its weakness, now so manifest. The artisan has been everywhere the ally of the farmer, and the South has been

unable to form that alliance, the consequences of which are seen in the fact that it is always exporting men and raw materials, and exhausting its soil and itself: and the greater the tendency to exhaustion, the greater is the pro-slavery feeling. That such should be the case is most natural. The man who exhausts his land attaches to it but little value, and he abandons it, but he attaches much value to the slave whom he can carry away with him. The pro-slavery feeling made its appearance first in the period between 1830 and 1840. Up to 1832, there had existed a great tendency in Maryland, Virginia, and Kentucky toward freedom, but that disappeared; and the reason why it did so may be seen in the greatly increased tendency to the abandonment of the older tobacco and cotton growing States…” (Henry C. Carey, The Slave Trade, 1853, 107). https://archive.org/stream/slavetradedomest01care#page/106/mode/2up “The old South, where in 1820 the only antislavery societies in the country existed, began [in 1836] to defend what was a moral liability no one liked very much [i.e. slavery] with incredible intransigence” (T.R. Fehrenbach, Lone Star, 248). Note: The 3/5 clause in the U.S. Constitution does not reflect a belief that African slaves were 3/5 human. It was an attempt by the Northern States to limit the influence in Congress of the Southern, slave-holding States by not permitting the slave-holding States to count slaves as part of their populations. It was the Northern States that did not want slaves to count at all in counting a State’s population, and the slave-holding States that wanted to count slaves as one whole person, in order to increase the size of their population and representation in Congress. A. Based on these statements, what is the meaning and purpose of equality? Did the common law permit slavery? Why or why not? “I have formerly observed that pure and proper slavery does not, nay cannot, subsist in England; such I mean, whereby an absolute and unlimited power is given to the master over the life and fortune of the slave. And indeed it is repugnant to reason, and the principles of natural law, that such a state should subsist any where…. Upon these principles the law of England abhors, and will not endure the existence of, slavery within this nation … And now it is laid down, that a slave or negro, the instant he lands in England, becomes a freeman; that is, the law will protect him in the enjoyment of his person, his liberty, and his property” (William Blackstone, Commentaries on the Laws of England, Volume I, 411-413, 1766). “Slavery, or an absolute and unlimited power in the master over the life and fortune of the slave, is unauthorized by the common law.... The reasons which we sometimes see assigned for the origin and the continuance of slavery appear, when examined to the bottom, to be built upon a false foundation. In the enjoyment of their persons and of their property, the common law protects all” (James Wilson, The Natural Rights of Individuals, 1804). B. According to Lincoln, who is included in “all men are created equal”? How does Lincoln explain the fact that the Declaration was written and signed at a time when slavery existed in all of the states? “In [the days of the American Revolution], our Declaration of Independence was held sacred by

all, and thought to include all; but now, to aid in making the bondage of the negro universal and eternal; it is assailed and sneered at. . . .

I think the authors of that notable instrument intended to include all men, but they did not intend to declare all men equal in all respects. They did not mean to say all were equal in color, size, intellect, moral development, or social capacity. They defined with tolerable distinctness, in what respect they did consider all men created equal--equal in “certain unalienable rights, among which are life, liberty, and the pursuit of happiness.” This they said and this they meant.

They did not mean to assert the obvious untruth that all were then actually enjoying that equality, nor yet, that they were about to confer it immediately upon them. In fact, they had no power to confer such a boon. They meant simply to declare the right, so that the enforcement of it might follow as fast as circumstances should permit. They meant to set up a standard maxim for free society, which should be familiar to all, and revered by all; constantly looked to, constantly labored for, and even though never perfectly attained, constantly approximated, and thereby constantly spreading and deepening its influence and augmenting the happiness and value of life to all people of all colors everywhere” (Abraham Lincoln, Speech on Dred Scott Decision, June 26, 1857). C. How many signers of the Declaration owned slaves? Was the way these people lived consistent with the principles of the Declaration? “There was no member of the Virginia delegation who did not own slaves, and of all members of Congress at least a third owned or had owned slaves. The total of Thomas Jefferson’s slaves in 1776, as near as can be determined from his personal records, was about 200, which was also the approximate numbers owned by George Washington” (David McCullough, John Adams, 131). D. What did Thomas Jefferson do almost as soon as he became a member of the Virginia legislature in 1769? What did Jefferson do in regard to slavery after writing the Declaration of Independence? Was it legal for a slave-owner to free his slaves in Virginia in 1776?

• “When [Jefferson] was elected to the Virginia House of Burgesses in 1769, one of his first acts was to attempt to make the manumission (setting free) of slaves easier for owners. For half a century, manumission had been permitted only with the consent of the governor and council; Jefferson sought to give every slave owner the right to free his slaves if he so desired.” (John Chester Miller, The Wolf By the Ears, 4)

• “Shortly after the adoption of the Declaration of Independence, [Jefferson] drafted a

constitution for the state of Virginia in which he provided for the gradual abolition of slavery.” (John Chester Miller, The Wolf By the Ears, 17)

For more on the Founders’ understanding of slavery, see: 1. “[The King of Great Britain] has waged cruel war against human nature itself, violating its most sacred rights of life and liberty in the persons of a distant people who never offended him,

captivating and carrying them into slavery in another hemisphere…. Determined to keep open a market where MEN should be bought and sold, he has prostituted his negative for suppressing every legislative attempt to prohibit or restrain this execrable commerce” (Thomas Jefferson, draft of the Declaration of Independence). http://www.let.rug.nl/usa/documents/1776-1785/jeffersons-draft-of-the-declaration-of- independence.php 2. “The laws of certain states…give an ownership in the services of Negroes as personal property….But being men, by the laws of God and Nature, they were capable of acquiring liberty—and when the captor in war…thought fit to give them liberty, the gift was not only valid, but irrevocable” (Alexander Hamilton, Philo Camillus, November 2, 1795).

3. “Slavery is … an atrocious debasement of human nature” (Benjamin Franklin, “An address to the Public from the Pennsylvania Society for Promoting the Abolition of Slavery,” 1787). 4. “We have seen the mere distinction of color made in the most enlightened period of time, a ground of the most oppressive dominion ever exercised by man over man” (James Madison, Constitutional Convention, June 6, 1787).

5. “It is much to be wished that slavery may be abolished. The honour of the States, as well as justice and humanity, in my opinion, loudly call upon them to emancipate these unhappy people. To contend for our own liberty, and to deny that blessing to others, involves an inconsistency not to be excused” (John Jay, letter to R. Lushington, March 15, 1786).

6. “[Between 1777 and 1804], eight [northern] states proceeded to abolish slavery, either gradually or immediately….“[In the south], Delaware, Maryland, Virginia, and North Carolina changed their laws to make it easier for owners to emancipate slaves…. By 1810, 76 percent of Delaware blacks were free; in Maryland, free blacks numbered a substantial 23 percent….At the federal level, Congress passed the Northwest Ordinance in 1787, forbidding slavery in the territory where the future states of Ohio, Indiana, Michigan, Illinois, and Wisconsin would be formed” (Thomas West, Vindicating the Founders, 11-12). 7. “The prevailing ideas entertained by [Jefferson] and most of the leading statesmen of the time of the formation of the old constitution, were that the enslavement of the African was in violation of the laws of nature; that it was wrong in principle, socially, morally, and politically. It was an evil they knew not well how to deal with, but the general opinion of the men of that day was that, somehow or other in the order of Providence, the institution would be evanescent and pass away….These ideas, however, were fundamentally wrong. They rested upon the assumption of the equality of the races. This was an error” (Alexander Stephens, Confederate Vice-President, “Corner-Stone” Speech, March 21, 1861). http://teachingamericanhistory.org/library/document/cornerstone-speech/ 8. “Prior to the great Revolution, the great majority or rather the great body of our people had been so long accustomed to the practice and convenience of having slaves, that very few among

http://www.let.rug.nl/usa/documents/1776-1785/jeffersons-draft-of-the-declaration-of-independence.php

http://teachingamericanhistory.org/library/document/cornerstone-speech/

them even doubted the propriety and rectitude of it. Some liberal and conscientious men had indeed, by their conduct and writings, drawn the lawfulness of slavery into question, and they made converts to that opinion; but the number of those converts compared with the people at large was then very inconsiderable. Their doctrines prevailed by almost insensible degrees, and was like the little lump of leaven which was put into three measures of meal: even at this day, the whole mass is far from being leavened, though we have good reason to hope and to believe that if the natural operations of truth are constantly watched and assisted, but not forced and precipitated, that end we all aim at will finally be attained in this country” (John Jay to the President of the [English] Society for Promoting the Manumission of Slaves, June 1788). 3. “More Europeans were enslaved and taken to North Africa by Barbary Coast pirates alone than there were African slaves taken to the United States and to the colonies from which it was formed…. What was peculiar about the United States was that it was the first country in which slavery was under attack from the moment the country was created. What was peculiar about Western civilization was that it was the first civilization to destroy slavery, not only within its own countries but in other countries around the world as well” (Thomas Sowell, “Taking America for Granted,” National Review, July 4, 2007).

Protective Barrier Number 10: The Right of Revolution/Secession

Activity 51: The Right of Secession; Texas Secession in 1861 A. Based on these statements, is there a right of secession? If so, under what conditions is it proper to exercise this right? “I return my thanks for the copy of your late very powerful Speech in the Senate of the United S. It crushes ‘nullification’ and must hasten the abandonment of ‘Secession.’ But this dodges the blow by confounding the claim to secede at will, with the right of seceding from intolerable oppression. The former answers itself, being a violation, without cause, of a faith solemnly pledged. The latter is another name only for revolution, about which there is no theoretic controversy” (James Madison to Daniel Webster, March 15, 1835). “We the Delegates of the People of Virginia … Do in the name and in behalf of the People of Virginia declare and make known that the powers granted under the Constitution being derived from the People of the United States may be resumed by them whensoever the same shall be perverted to their injury or oppression…” (Ratification of the Constitution by the State of Virginia; June 26, 1788). http://avalon.law.yale.edu/18th_century/ratva.asp

http://avalon.law.yale.edu/18th_century/ratva.asp

B. Based on this statement, is there a right of secession? If so, under what conditions is it proper to exercise this right?

“When the Federal Republican Constitution of their country, which they have sworn to support, no longer has a substantial existence, and the whole nature of their government has been forcibly changed, without their consent, from a restricted federative republic, composed of sovereign states, to a consolidated central military despotism … .

In such a crisis, the first law of nature, the right of self-preservation, the inherent and inalienable rights of the people to appeal to first principles, and take their political affairs into their own hands in extreme cases, enjoins it as a right towards themselves, and a sacred obligation to their posterity, to abolish such government, and create another in its stead, calculated to rescue them from impending dangers, and to secure their future welfare and happiness.” (Texas Declaration of Independence, 1836).

C. Based on this statement, is there a right of secession? If so, under what conditions is it proper to exercise this right? “When a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security…. [The King of Great-Britain] has combined with [Parliament] to subject us to a Jurisdiction foreign to our Constitution, and unacknowledged by our Laws; giving his Assent to their Acts of pretended Legislation: … FOR suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all Cases whatsoever …. We have warned [our British Brethren] from Time to Time of Attempts by their Legislature to extend an unwarrantable Jurisdiction over us” (U.S. Declaration of Independence, 1776). D. Based on this statement, why did Texas secede from the Union in 1861? Did this action meet the requirements stated in the previous quotations in this activity?

“Texas abandoned her separate national existence and consented to become one of the Confederated States to promote her welfare, insure domestic tranquillity and secure more substantially the blessings of peace and liberty to her people…. She was received as a commonwealth holding, maintaining and protecting the institution known as negro slavery--the servitude of the African to the white race within her limits--a relation that had existed from the first settlement of her wilderness by the white race, and which her people intended should exist in all future time. Her institutions and geographical position established the strongest ties between her and other slave-holding States of the confederacy…. The destruction of the existing relations between the two races, as advocated by our sectional enemies, would bring inevitable calamities upon both and desolation upon the fifteen slave-holding States. By the secession of six of the slave-holding States, and the certainty that others will speedily do likewise, Texas has no alternative but to remain in an isolated connection with the North, or unite her destinies with the South”” (Texas Ordinance of Secession, February 2, 1861).

Activity 52: More on the Right of Secession “The possibility that people will break away from an oppressive government is one of the most effective checks on the growth of government. It is no coincidence that the transformation of America from a limited republic to a monolithic welfare-warfare state coincided with the discrediting of secession as an appropriate response to excessive government” (Ron Paul, “Scottish Referendum Gives Reason to Be Hopeful,” September 28, 2014). http://www.ronpaulinstitute.org/archives/featured-articles/2014/september/28/scottish- referendum-gives-reasons-to-be-hopeful.aspx A. Based on these statements, do States have the right to secede from the Union? If so, under what conditions is it proper to exercise this right?

• “WE the Delegates of the People of the State of New York … do declare and make known … that the Powers of Government may be reassumed by the People, whensoever it shall become necessary to their Happiness” (Ratification of the Constitution by the State of New York; July 26, 1788).

• “We the Delegates of the People of the State of Rhode-Island, and Providence Plantations … do declare and make known … That the powers of government may be reassumed by the people, whensoever it shall become necessary to their happiness” (Ratification of the Constitution by the State of Rhode Island; May 29, 1790).

• “We the Delegates of the People of Virginia … Do in the name and in behalf of the People of Virginia declare and make known that the powers granted under the Constitution being derived from the People of the United States may be resumed by them whensoever the same shall be perverted to their injury or oppression…” (Ratification of the Constitution by the State of Virginia; June 26, 1788).

• “But in this Constitution, the citizens of the United States appear dispensing a part of their original power in what manner and what proportion they think fit. They never part with the whole; and they retain the right of recalling what they part with” (James Wilson, Pennsylvania Ratifying Convention, November 28, 1787).

B. Based on this statement, do States have the right to secede from the Union? If so, under what conditions is it proper to exercise this right? “In your letter to Fisk, you have fairly stated the alternatives between which we are to choose: 1, licentious commerce and gambling speculations for a few, with eternal war for the many; or, 2, restricted commerce, peace, and steady occupations for all. If any State in the Union will declare that it prefers separation with the first alternative, to a continuance in union without it, I have no hesitation in saying, ‘let us separate.’ I would rather the States should withdraw, which are for unlimited commerce and war, and confederate with those alone which are for peace and agriculture. I know that every nation in Europe would join in sincere amity with the latter, and

http://www.ronpaulinstitute.org/archives/featured-articles/2014/september/28/scottish-referendum-gives-reasons-to-be-hopeful.aspx

hold the former at arm’s length, by jealousies, prohibitions, restrictions, vexations and war” (Thomas Jefferson to William H. Crawford, June 20, 1816). C. Based on this statement, do States have the right to secede from the Union? If so, under what conditions is it proper to exercise this right? “With these qualifications we may admit the same right as vested in the people of every State in the Union, with reference to the General Government, which was exercised by the people of the United Colonies with reference to the supreme head of the British Empire, of which they formed a part; and under these limitations have the people of each State in the Union a right to secede from the Confederated Union itself. Here stands the right! But the indissoluble union between the several States of this Confederated Nation is, after all, not in the right, but in the heart! If the day should ever come (may Heaven avert it), when the affections of the people of these States shall be alienated from each other; when the fraternal spirit shall give way to cold indifference, or collision of interest shall fester into hatred, the bands of political asseveration will not long hold together parties no longer attached by the magnetism of conciliated interests and kindly sympathies; and far better will it be for the people of' the dis-United States, to part in friendship from each other, than to be held together by constraint; then will be the time for reverting to the precedents which occurred at the formation and adoption of the Constitution, to form again a more perfect Union by dissolving that which could no longer bind, and to leave the separated parts to be re-united by the law of political gravitation to the centre!” (John Quincy Adams, Address to the Historical Society of New York, 1839). D. Based on this statement, do States have the right to secede from the Union? Why or why not? “The federal government, then, appears to be the organ through which the united republics communicate with foreign nations, and with each other. Their submission to its operation is voluntary: its councils, its sovereignty is an emanation from theirs, not a flame by which they have been consumed, nor a vortex in which they are swallowed up. Each is still a perfect state, still sovereign, still independent, and still capable, should the occasion require, to resume the exercise of its functions, as such, in the most unlimited extent. But until the time shall arrive when the occasion requires a resumption of the rights of sovereignty by the several states (and far be that period removed when it should happen) the exercise of the rights of sovereignty by the states, individually, is wholly suspended, or discontinued, in the cases [of powers exclusively granted to the federal government]: nor can that suspension ever be removed, so long as the present constitution remains unchanged, but by the dissolution of the bonds of union. An event which no good citizen can wish, and which no good, or wise administration will ever hazard” (St. George Tucker, View of the Constitution of the United States, 1803). For more on the right of States to secede from the Union, see: 1. “When the Constitution was adopted by the votes of States at Philadelphia, and accepted by the votes of States in popular conventions, it is safe to say there was no man in this country, from Washington and Hamilton on the one side to George Clinton and George Mason on the other, who regarded our system of Government, when first adopted, as anything but an experiment

entered upon by the States, and from which each and every State had the right to peaceably withdraw, a right which was very likely to be exercised” (Henry Cabot Lodge, Daniel Webster, Boston, Massachusetts: Houghton, Mifflin, and Company, 1899, p. 176). 2. “The nations of Turkey, Russia, France, Spain, and all other despotic kingdoms, in the world, have an inherent right, whenever they please, to shake off the yoke of servitude, (though sanctified by the immemorial usage of their ancestors;) and to model their government, upon the principles of civil liberty…. When the first principles of civil society are violated, and the rights of a whole people are invaded, the common forms of municipal law are not to be regarded. Men may then betake themselves to the law of nature…. In short, when human laws contradict or discountenance the means, which are necessary to preserve the essential rights of any society, they defeat the proper end of all laws, and so become null and void” (Alexander Hamilton, “The Farmer Refuted,” February 23, 1775). 3. “Mr. Jefferson’s plan of destruction has been gradually advancing…. And must we with folded hands wait the result, or timely think of other protection? This is a delicate subject. The principles of our Revolution point to the remedy,--a separation. That this can be accomplished, and without spilling one drop of blood, I have little doubt” (Timothy Pickering to George Cabot, January 29, 1804). 4. “I think what is most important is we have a concrete right to secede. Even if we never had any secession, or any state declare independence, we would be so much better off, because there would always be this threat. Once the threat of a state leaving was removed, it was just open- door policy for the federal government to expand itself and run roughshod out over the states because the states couldn’t do much” (Ron Paul, quoted in “Ron Paul Thinks There Should Be More Secessionist Movements in the U.S.,” National Journal, September 30, 2014).

Civil Society: The Non-Political Requirements for Living under a Government that Protects and Does Not Harm Its

Citizens

http://www.nationaljournal.com/politics/ron-paul-thinks-there-should-be-more-secessionist-movements-in-the-u-s-20140930

Protective Barrier Number 11: Traditional, Father-Led Family; Father as Provider/Protector

Activity 53: The role of men in a free Society; the purpose of marriage “Single-parent families headed by women … make up 19 percent of American families but 55 percent of all families in poverty” (Stephen Malanga, “In America, The Poor Don't Work,” Real Clear Markets, September 10, 2008). A. Based on this statement, what is the role of men? What is the purpose of marriage? “THE duty of parents to provide for the maintenance of their children is a principle of natural law … for they would be in the highest manner injurious to their issue, if they only gave the children life, that they might afterwards see them perish…. And the president Montesquieu has a very just observation upon this head: that the establishment of marriage in all civilized states is built on this natural obligation of the father to provide for his children; for that ascertains and makes known the person who is bound to fulfil this obligation: whereas, in promiscuous and illicit conjunctions, the father is unknown; and the mother finds a thousand obstacles in her way; --- shame, remorse, the constraint of her sex, and the rigor of laws ; --- that stifle her inclinations to perform this duty: and besides, she generally wants ability…. The main end and design of marriage therefore [is] to ascertain and fix upon some certain person, to whom the care, the protection, the maintenance, and the education of the children should belong” (William Blackstone, Commentaries on the Laws of England, Book I, Chapter 16, 1765-1769). B. Based on this statement, what is the role of men? What is the purpose of marriage?

“Now in the human species the female is clearly insufficient of herself for the rearing of the offspring, since the need of human life makes many demands, which cannot be met by one parent alone. Hence the fitness of human life requires man to stand by woman after the sexual act is done, and not to go off at once and form connexions with any one he meets, as is the way with fornicators. Nor is this reasoning traversed by the fact of some particular woman having wealth and power enough to nourish her offspring all by herself: for in human acts the line of natural rectitude is not drawn to suit the accidental variety of the individual, but the properties common to the whole species” (Thomas Aquinas, Summa Contra Gentiles, Book 3, Ch. 122, tr. Joseph Rickaby, S.J.).

books.google.com/books?id=M4ZPAAAAYAAJ

C. Based on these statistics, what is the connection between having children outside of marriage and poverty? How does having children outside of marriage affect liberty in the sense of living under a limited government? According to Walter Williams, the Census Bureau’s 2004 Current Population Survey suggests that having children out of wedlock is a primary cause of poverty among both black and white families. These are the statistics he uses to support his conclusion:

• For black families in which the parents are married, there is a 9.9% poverty rate, and 13.7%of children under 5 are living in poverty.

• Yet for black families headed by a single parent, there is a 39.5% poverty rate, and 58.1%

of children under 5 are living in poverty.

• For white families in which the parents are married, there is a 6% poverty rate, and 9.9% of children under 5 are living in poverty.

• Yet for white families headed by a single parent, there is a 26.4% poverty rate, and 52&

of children under 5 are living in poverty.

• Williams concludes his remarks by pointing out that, according to the Census Bureau, 85% of black children living in poverty are living in a single-parent family.

(Walter Williams, “Are the Poor Getting Poorer?” creators.com, October 31, 2007) D. Based on these statistics, what is the connection between having children outside of marriage and poverty? How does having children outside of marriage affect liberty in the sense of living under a limited government? “Families headed by single females … experienced poverty rates nearly six times as great as families headed by married couples.”

• One year after a non-marital birth, 53.4% of the participants were living in poverty.

• Three years after a non-marital birth, 51.6% of the participants were living in poverty.

• Five years after a non-marital birth, 50.6% of the participants were living in poverty.” (“Mothers’ and Childrens’ Poverty and Material Hardship in the Years Following a Non-Marital Birth,” Fragile Families Research Brief, Princeton and Columbia Universities at http://www.fragilefamilies.princeton.edu/briefs/ResearchBrief41.pdf) As of March 2007, 7.7 million families lived in poverty in the US. Of these 7.7 million families, 2.9 million (or 38%) were headed by married couples and 4.8 million (or 62%) were headed by a single parent. Of the 4.8 million families headed by a single parent, 4.1 million (or 85% of single parent families) were headed by a single female parent with no husband present.

http://www.fragilefamilies.princeton.edu/briefs/ResearchBrief41.pdf

(Income, Poverty, and Health Insurance Coverage in the United States: 2006, August 2007, US Census Bureau, p. 21)

Texas History from the Perspective of Liberty, Part 9

Activity 54: Based on T.R. Fehrenbach, Lone Star (See PowerPoint slides for this activity on eCampus) A. Identify examples of injustice (violating person or property) or justice (securing or defending person or property) in this passage. Explain why these actions are unjust or just. B. Identify examples of people acquiring land justly (without violating anyone else’s rights) or unjustly (by violating the rights of others). Explain why these are examples of justly or unjustly acquiring land. C. Identify examples of people obtaining or failing to obtain happiness in this passage (for example, providing themselves with adequate food, shelter, and clothing). Explain why these are examples of obtaining or not obtaining happiness. D. Identify examples of just or unjust social organizations (systems that exist for the benefit of all, in which no person or group benefits from the violation of the person and property or possibility of happiness of any other person or group, as opposed to systems that exist for the benefit of a few at the expense of the person and property or possibility of happiness of everyone else; or vice-versa).

Activity 55: Based on T.R. Fehrenbach, Lone Star (See PowerPoint slides for this activity on eCampus) A. Identify examples of injustice (violating person or property) or justice (securing or defending person or property) in this passage. Explain why these actions are unjust or just. B. Identify examples of people acquiring land justly (without violating anyone else’s rights) or unjustly (by violating the rights of others). Explain why these are examples of justly or unjustly acquiring land. C. Identify examples of people obtaining or failing to obtain happiness in this passage (for example, providing themselves with adequate food, shelter, and clothing). Explain why these are examples of obtaining or not obtaining happiness.

D. Identify examples of just or unjust social organizations (systems that exist for the benefit of all, in which no person or group benefits from the violation of the person and property or possibility of happiness of any other person or group, as opposed to systems that exist for the benefit of a few at the expense of the person and property or possibility of happiness of everyone else; or vice-versa).

Activity 56: The role of the family in a free society; the role of women “I will whisper in the reader’s ear a horrible suspicion that has sometimes haunted me: the suspicion that [Capitalists] and [Socialists] are secretly in partnership…. [The Capitalist,] the plutocrat, … wants women-workers because they are cheaper; [the Socialist] calls the woman's work ‘freedom to live her own life’” (G.K. Chesterton, What’s Wrong with the World, 1912).

http://www.gutenberg.org/files/1717/1717-h/1717-h.htm

“For the capitalists are well aware that the old type of family, where the woman is a slave and where the husband is responsible for the well-being of his wife and children, constitutes the best weapon in the struggle to stifle the desire of the working class for freedom and to weaken the revolutionary spirit of the working man and working woman” (Alexander Kollantai, “Women’s role in production: its effect upon the family,” 1920).

https://www.marxists.org/archive/kollonta/1920/communism-family.htm

A. According to de Tocqueville, what was the role of women in the early days of the United States? Based on this statement, why were women not allowed to vote? “Americans have thought that, insofar as nature has established so great a difference between the physical and moral constitution of man and woman, its clearly indicated goal was that of giving a different use to their different abilities; and in their judgment progress does not at all consist in making dissimilar beings do pretty much the same things, but in getting to the point in which each of them performs his or her task as well as possible. The Americans have applied to the two sexes the great principle of political economy that nowadays dominates industry. They have carefully divided the function of man and woman, in order that the great work of society might be better accomplished. Of all the countries in the world, America is the one where the most continual care has been taken to draw neatly separated lines of action for the two sexes; and where it is required that the two march at an equal pace, but always in different paths. You do not at all see American women direct the external affairs of the family, run a business, or enter the political sphere…” (Alexis De Tocqueville, “How Americans Understand the Equality of Men and Women,” Democracy in America, Part 3, Chapter 12, 1840, tr. Iachetta). B. According to de Tocqueville, who was the leader of the family in the early days of the United States? Based on this statement, why did Americans believe in this arrangment?

“Nor have Americans ever imagined that the consequence of democratic principles is to overthrow the power of the husband and to introduce a confusion of authorities in the family. They have thought that every association, in order to be effective, must have a leader, and that the natural leader of the marital association is the husband. They do not at all refuse to him, therefore, the right of directing his helpmate. They believe that, in the little society of the husband and his wife, as well as in the great political society, the purpose of democracy is to make the necessary powers conform to rules and laws, and not to put an end to all power. This opinion is not at all limited to the one sex and fought against by the other” (De Tocqueville, “How Americans Understand the Equality of Men and Women,” Democracy in America, Part 3, Chapter 12, 1840, tr. Iachetta). C. According to de Tocqueville, what was the role of women in the early days of the United States? Based on this statement, did Americans think that women were inferior to men? “So Americans do not believe that man and woman have the duty or right to do the same things; but they show the same esteem for the role of each of them, and they consider them to be beings of equal worth, although their destiny is different. They do not give to the courage of a woman the same use or employment as to that of a man, but they never doubt her courage; and if they think that the husband and his helpmate ought not always employ their intelligence and their reason in the same manner, they judge at least that the reason of the woman is as reliable as that of the man and her intelligence is as sharp. The Americans, who have permitted the inferiority of the woman in society to persist, have raised her with all their power, in the intellectual and moral world, to the level of the man; and, in this, they appear to me to have admirably understood the true meaning of democratic progress. For my part, I will not hesitate to say it: although in the United States the woman hardly ever departs from the domestic circle and she is in some respects extremely dependent in it, nowhere [in the world] does her status seem to me higher; and if…someone should ask me to what I thought it was necessary to attribute the exceptional prosperity and growing strength of this people, I would respond that it is the superiority of the women” (De Tocqueville, “How Americans Understand the Equality of Men and Women,” Democracy in America, Part 3, Chapter 12, 1840, tr. Iachetta). D. Based on this statement, what happens to the role of government when children are born out of wedlock? What happens to the right of living under a government that does not harm person and property? “THE method in which the English law provides maintenance for [children born out of wedlock] is as follows. When a woman is delivered, or declares herself with child, of a bastard, and will by oath before a justice of peace charge any person having got her with child, the justice shall cause such person to be apprehended, and commit him till he gives security, either to maintain the child, or appear at the next quarter sessions to dispute and try the fact. But if the woman dies, or is married before delivery, or miscarries, or proves not to have been with child, the person shall be discharged: otherwise the sessions, or two justices out of sessions, upon original application to them, may take order for the keeping of the bastard, by charging the mother, or the reputed father with the payment of money or other sustentation for that purpose. And if such putative father, or

lewd mother, run away from the parish, the overseers by direction of two justices may seize their rents, goods, and chattels, in order to bring up the said bastard child. Yet such is the humanity of our laws, that no woman can be compulsively questioned concerning the father of her child, till one month after her delivery: which indulgence is however very frequently a hardship upon parishes, by suffering the parents to escape” (William Blackstone, Commentaries on the Laws of England, Book I, Chapter 16).

For more on women and the right to vote, see: 1. “No State or community professing to be republican allows all its people to vote….The right or franchise of voting has, probably, been more widely extended in these American States than in any other professed republican Government, but in the most liberal of these it has always been confined to a small minority of the whole people. In none of our States have females…ever been allowed to vote…. Yet we all know that many females are far better qualified to vote intelligently and wisely than many men who are allowed to vote…. The right of suffrage is not given to a particular class because they have…any more natural right to it…but is given to them as fair and proper exponents of the will and interests of the whole community…. The theory is that the fathers, husbands, brothers, and sons to whom the right of suffrage is given will in its exercise be as watchful of the rights and interests of their wives, sisters, and children who do not vote as of their own” (Senator Poland, Congressional Globe, June 5, 1866). 2. “In 1895 the women of Massachusetts were asked by the state whether they wished the suffrage. Of the 575,000 voting women in the state, only 22,204 cared for it enough to deposit in a ballot box an affirmative answer to this question. That is, in round numbers, less than four per cent wished to vote; about ninety-six per cent were opposed to woman suffrage or indifferent to it…. Why this indifference, this reluctance? … Briefly, I believe it is because woman feels, if she does not clearly see, that the question of woman suffrage is more than merely political; that it concerns the nature and structure of society, -- the home, the church, the industrial organism, the state, the social fabric. And to a change which involves a revolution in all of these she interposes an inflexible though generally a silent opposition” (Lyman Abbot, “Why Women Do Not Wish the Suffrage,” The Atlantic Monthly, September 1903).

3. “The working objection to the Suffragette philosophy is simply that overmastering millions of women do not agree with it. I am aware that some maintain that women ought to have votes whether the majority wants them or not; but this is surely a strange and childish case of setting up formal democracy to the destruction of actual democracy. What should the mass of women decide if they do not decide their general place in the State? These people practically say that females may vote about everything except about Female Suffrage” (G.K. Chesterton, What’s Wrong with the World, 1912).

For women and the right to acquire and possess property, see: “Thousands of spinsters and widows left wills giving away their belongings [in the United States in the 1700s], but married women were not permitted to distribute their real estate … and there

was no reason for them to express their wishes regarding their personal property, for they had none to give” (Woody Holton, Abigail Adams, 1). Note: this is not Abigail Adams speaking, it is Woody Holton, the author of the biography. For more on the role the traditional family, see: 1. “Every thing useful and beneficial to man, seems to be connected with obedience to the laws of his nature, the inclinations, the duties, and the happiness of individuals, resolve themselves into customs and habits, favourable, in the highest degree, to society. In no case is this more apparent, than in the customs of nations respecting marriage” (Samuel Williams, The Natural and Civil History of Vermont, 1794). 2. “William Galston, formerly an assistant to President Clinton and now a professor at the University of Maryland, has pointed out that you need only do three things to avoid poverty in this country—finish high school, marry before having a child, and produce the child after the age of twenty. Only 8 percent of families who do this are poor; 79 percent of those who fail to do this are poor” (James Q. Wilson, “Why We Don’t Marry,” City Journal, Winter 2002). http://www.city-journal.org/html/12_1_why_we.html 3. “What the latest data show is that of the 7.6 million families in poverty in America, more than 80 percent did not contain an adult who worked full time in the past year. In fact, in more than half of families in poverty the householder did not work at all in the last year. The problem was especially acute among single-parent families headed by women, which make up 19 percent of American families but 55 percent of all families in poverty. In only 17 percent of those impoverished families is the household head working full time.” (Stephen Malanga, “In America, The Poor Don't Work,” Real Clear Markets, September 10, 2008)

Activity 57: Liberty Analysis (Family) Key Question: Which side promotes a traditional family structure?

A brief history of the birth control pill 1960 The pill is approved for contraceptive use. 1962 It’s an instant hit. After two years, 1.2 million Americans women are on the pill; after three years, the number almost doubles, to 2.3 million.

http://www.city-journal.org/html/12_1_why_we.html

1964 But the pill is still controversial: It remains illegal in eight states. The Pope convenes the Commission on Population, the Family and Natality; many within the Catholic Church are in favor. 1965 Five years after the FDA approval, 6.5 million American women are on pill, making it the most popular form of birth control in the U.S. Source: http://www.pbs.org/wnet/need-to-know/health/a-brief-history-of-the-birth-control-pill/480/ A. Based on this statement, what are the causes of marriage for life no longer being the norm in the U.S.? What changes would have to be made in order to restore marriage for life as a norm? “Divorce is [now] commonplace [in American culture] and marriage for life is no longer the norm. This state of affairs has multiple and mutually reinforcing causes: female careerism, which reduces the value of the traditional male provider; the social acceptability of nonmarital sex (still quaintly termed “premarital”), made possible by the easy availability of contraception and abortion; and welfare and child-support laws that create incentives for childbearing outside marriage” (James Taranto, Best of the Web, Wall Street Journal, June 27, 2011) B. Based on this statement, what happens to republican government when men and women start having sex outside of marriage? Why does this development affect the political system in this way? “So many imperfections are attached to the loss of virtue in women, their whole soul is so markedly degraded by this, and when this principal point is removed so many others fall, that in a popular state one can regard public incontinence as the last misfortune and as assurance of a change in the constitution. Thus good legislators have required a certain gravity in the mores of women….” (Montesquieu, Spirit of the Laws, Book 7, Chapter 8, 1760) C. Which side in Eisenstadt v. Baird promotes a traditional family structure? Why would this side promote this essential feature of liberty? “Appellee attacks his conviction of violating Massachusetts law for giving a woman a contraceptive foam at the close of his lecture to students on contraception. That law makes it a felony for anyone to give away a drug, medicine, instrument, or article for the prevention of conception except in the case of (1) a registered physician administering or prescribing it for a married person or (2) an active registered pharmacist furnishing it to a married person presenting a registered physician's prescription” (U.S. Supreme Court, EISENSTADT, SHERIFF v. BAIRD, 1972). D. Which side in Roe v. Wade promotes a traditional family structure? Why would this side promote this essential feature of liberty?

http://www.pbs.org/wgbh/amex/pill/timeline/timeline2.html

“A pregnant single woman (Roe) brought a class action challenging the constitutionality of the Texas criminal abortion laws, which proscribe procuring or attempting an abortion except on medical advice for the purpose of saving the mother’s life... A three-judge District Court… declared the abortion statutes void as vague and overbroadly infringing those plaintiffs’ Ninth and Fourteenth Amendment rights” (U.S. Supreme Court, Roe et al. v. Wade, District Attorney, 1973).

Protective Barrier Number 12: The role of personal responsibility (that is, making difficult

choices that have positive outcomes)

Note: This barrier assumes that there is also an evil side of ourselves, and that we sometimes make choices that are harmful to ourselves; these choices also are not only self-destructive, but are also often harmful to others as well.

Activity 58: Personal choices and their consequences “Moral conduct is that line of human action, conformity to which tends to promote the life, happiness and well-being of society and its members” (Arthur Kitson, The Money Problem, Ch. 1). A. What are the two kinds of consequences that Bastiat describes? Based on this statement, what is the difference between a good and bad economist? “In the economic sphere, an act, a habit, an institution, a law does not give birth to only one effect, but to a series of effects. Of these effects, the first alone is immediate; it reveals itself at the same time as its cause, one sees it. The others only unfold successively, one does not see them; it is fortunate if one foresees them. The entire difference between a good and bad economist is this: one cares about the visible effect; the other insists on taking into account both the effect that one sees and those that one must foresee” (What One Sees and What One Does Not See, Frederic Bastiat, July 1850, tr. Michael Iachetta). B. According to Bastiat, what kinds of consequences typically follow upon a pleasant short-time consequence? Based on this statement, what kinds of policies does a bad economist pursue?

“Yet this is an enormous difference, because it almost always happens that, when the immediate consequence is favorable, the subsequent consequences are fatal, and vice versa. –Whence it follows that a bad economist follows a small present good that will be followed by a great evil to come, whereas the true economist pursues a great good to come, at the risk of a small present evil” (What One Sees and What One Does Not See, Frederic Bastiat, July 1850, tr. Michael Iachetta). C. According to Bastiat, what kinds of consequences typically follow upon a pleasant short-time consequence? Based on this statement, what is the definition of personal responsibility? “This is also the case in health, in ethics. Often, the sweeter the first fruit of a habit is, the more bitter are the other fruits. For example, debauchery, laziness, prodigality. Therefore, when a man, struck by the effect that one sees, has not yet learned to discern those that one does not see, he abandons himself to fatal habits, not only out of inclination, but by calculation” (What One Sees and What One Does Not See, Frederic Bastiat, July 1850, tr. Michael Iachetta). D. According to Senator Henderson, what kinds of consequences typically follow upon a pleasant short-time consequence? Based on this statement, what is the definition of personal responsibility? “If it be a penalty, it is one which the offender may escape. It is likened unto the penalties of the divine law. The choice of good and evil is before them. The indulgence of evil is followed by punishment, because it is an inexorable law of man’s organization. The choice of good is followed by happiness, contentment, and prosperity. It is thus wisely ordained, that interest may constrain to duty, in the exercise of which the world is advanced and man is ennobled.” (Senator John B. Henderson, discussing section 2 of the 14th amendment, in which States are denied representation in Congress if they refuse to let African-Americans vote, June 8, 1866, Congressional Globe, 3035) For more on natural consequences and personal responsibility, see: 1. “This explains the inevitably painful growth of humanity. Ignorance surrounds its cradle; therefore, its actions are determined by the first consequences, the only ones, in its beginning, that it can see. It is only later on that it learns to insist on taking into account the other. Two very different masters teach it this lesson: Experience and Foresight. Experience governs effectively, but brutally. It teaches us all of the effects of an action by making us experience them, and we cannot fail to end up knowing that fire burns, as a result of it burning us. As much as possible, I would like to substitute for this harsh teacher a kinder one: Foresight….” (“What One Sees and What One Does Not See,” Frederic Bastiat, July 1850, tr. Iachetta) 2. “Look at the end of an accomplished fact, and you will see that it has always produced the opposite of what was expected when it has not been founded from the first on morality and justice” (Francois de Chateaubriand, Memoirs from Beyond the Tomb, as quoted in Frederic Bastiat’s What is Seen and What is Not Seen, 1850).

Activity 59: Personal responsibility and ethics; personal responsibility and wealth A. According to William Blackstone, what is the natural consequence of an action that is morally right? What is the natural consequence of an action that is morally wrong? “As therefore the creator is a being, not only of infinite power, and wisdom, but also of infinite goodness, he has been pleased so to contrive the constitution and frame of humanity, that we should want no other prompter to enquire after and pursue the rule of right, but only our own self-love.... For he has so intimately connected, so inseparably interwoven the laws of eternal justice with the happiness of each individual, that the latter cannot be attained but by observing the former; and, if the former be punctually obeyed, it cannot but induce the latter. In consequence of which mutual connection of justice and human felicity, he … has graciously reduced the rule of obedience to this one paternal precept, ‘that man should pursue his own happiness.’ This is the foundation of what we call ethics, or natural law” (William Blackstone, Commentaries on the Laws of England, Introduction, Section 2). B. According to William Blackstone, what is the study of ethics? “This is the foundation of what we call ethics, or natural law. For the several articles into which it is branched in our systems, amount to no more than demonstrating, that this or that action tends to man's real happiness, and therefore very justly concluding that the performance of it is a part of the law of nature; or, on the other hand, that this or that action is destructive of man’s real happiness, and therefore that the law of nature forbids it” (William Blackstone, Commentaries on the Laws of England, Introduction, Section 2). C. According to Nathaniel Chipman, what is the relationship between personal responsibility and prosperity? “Riches are the fruit of industry. Honor the fruit of merit. Both ought, as to their continuance, and the influence which attends them, to be left to the conduct of the possessor. If a man, who, by industry and economy, has acquired riches, become indolent, or profligate, let him sink into poverty. Let those who are still industrious and economical, succeed to his enjoyments, as to their just reward. If a man, who, by noble and virtuous actions, has acquired honor, the esteem of mankind, will behave infamously, let him sink into contempt. To exclude the meritorious from riches and honors, and to perpetuate either to the undeserving, are equally injurious to the rights of man in society. In both it is to counteract the laws of nature, which have, by the connection of cause and effect, annexed the proper rewards and punishments to the actions of men. Wealth, or at least, a competency, is the reward, provided by the laws of nature, for prudent industry; want, the punishment of idleness and profligacy…. Divert not the consequences of actions, as to the individual actors, from their proper course… The operation of the equal laws of nature, tend to exclude, or correct every dangerous excess.” (Nathaniel Chipman, Sketches of the Principles of Government, 1793)

D. According to Frederic Bastiat, what is the relationship between personal responsibility and prosperity? “When, from the seclusion of his office, a politician takes a view of society, he is struck with the spectacle of inequality that presents itself. He mourns over the sufferings that are the lot of so many of our brethren, sufferings whose aspect is rendered yet more sorrowful by the contrast of luxury and wealth…. He ought to ask himself whether, granting the aspiration of all men to well-being and improvement, the reign of justice would not suffice to realize the greatest activity of progress, and the greatest amount of equality compatible with that individual responsibility that God has awarded as a just retribution of virtue and vice?” (Frederic Bastiat, The Law, 20 at http://mises.org/document/2731).

Texas History from the Perspective of Liberty, Part 10

Activity 60: Based on T.R. Fehrenbach, Lone Star (See PowerPoint slides for this activity on eCampus) A. Identify examples of injustice (violating person or property) or justice (securing or defending person or property) in this passage. Explain why these actions are unjust or just. B. Identify examples of people acquiring land justly (without violating anyone else’s rights) or unjustly (by violating the rights of others). Explain why these are examples of justly or unjustly acquiring land. C. Identify examples of people obtaining or failing to obtain happiness in this passage (for example, providing themselves with adequate food, shelter, and clothing). Explain why these are examples of obtaining or not obtaining happiness. D. Identify examples of just or unjust social organizations (systems that exist for the benefit of all, in which no person or group benefits from the violation of the person and property or possibility of happiness of any other person or group, as opposed to systems that exist for the benefit of a few at the expense of the person and property or possibility of happiness of everyone else; or vice-versa).

Activity 61: Based on T.R. Fehrenbach, Lone Star (See PowerPoint slides for this activity on eCampus) A. Identify examples of injustice (violating person or property) or justice (securing or defending person or property) in this passage. Explain why these actions are unjust or just.

http://mises.org/document/2731

Activity 62: Lack of personal responsibility and poverty “The law not only regards life and member, and protects every man in the enjoyment of them, but also furnishes him with every thing necessary for their support. For there is no man so indigent or wretched, but he may demand a supply sufficient for all the necessities of life, from the more opulent part of the community, by means of the several statutes enacted for the relief of the poor…” (William Blackstone, Commentaries on the Laws of England, 1765). http://press-pubs.uchicago.edu/founders/documents/amendIXs1.html A. According to Benjamin Franklin, what is the impact of overly generous welfare assistance on the character of the people who receive it? Based on this observation, what is the best way to handle public assistance? “I am for doing good to the poor, but I differ in opinion of the means. I think the best way of doing good to the poor, is not making them easy in poverty, but leading or driving them out of it. In my youth I traveled much, and I observed in different countries, that the more public provisions were made for the poor, the less they provided for themselves, and of course, became poorer. And, on the contrary, the less was done for them, the more they did for themselves, and became richer. There is no country in the world where so many provisions are established for them [as in England] … with a solemn general law made by the rich to subject their estates to a heavy tax for the support of the poor.... [Yet] there is no country in the world in which the poor are more idle, dissolute, drunken, and insolent…” (Benjamin Franklin, “On the Price of Corn, and Management of the Poor,” London Chronicle, November 29, 1766). B. According to Benjamin Franklin, what is the impact of overly generous welfare assistance on the character of the people who receive it? Based on this observation, what do those in authority need to do if they want people to act responsibly? What do those in authority need not to do if they want people to act responsibly?

“To relieve the misfortunes of our fellow creatures is concurring with the Deity, ’tis Godlike, but if we provide encouragements for Laziness, and supports for Folly, may it not be found fighting against the order of God and Nature, which perhaps has appointed Want and Misery as the proper Punishments for, and Cautions against as well as necessary consequences of Idleness and Extravagancy. Whenever we attempt to mend the scheme of Providence and to interfere in the Government of the World, we had need be very circumspect lest we do more harm than Good” (Benjamin Franklin, letter to Peter Collinson, May 9th, 1753). C. According to Thomas Jefferson, did government provide public assistance in the early days of the United States? If so, what kind of assistance? Was this approach effective? Was this approach harmful to the character of those who received public assistance? “The poor, unable to support themselves, are maintained by an assessment on the tithable persons in their parish… The poor who have neither property, friends, nor strength to labor, are…boarded in the houses of good farmers, to whom a stipulated sum is annually paid. To those who are able to help themselves a little, or have friends from whom they derive some succors, inadequate however to their full maintenance, supplementary aids are given, which enable them to live comfortably in their own houses, or in the houses of their friends. Vagabonds, without visible property or vocation, are placed in workhouses, where they are well clothed, fed, lodged and made to labor. Nearly the same method of providing for the poor prevails through all our states; and from Savannah to Portsmouth you will seldom meet a beggar” (Thomas Jefferson, Query XIV, Notes on the State of Virginia). Note: “Virginia transferred this task from church to county government in 1785” (Thomas West, Vindicating the Founders, 134). Note: “Vagabonds [are] able-bodied persons not having wherewithal to maintain themselves, who shall waste their time in idle and dissolute courses, or shall loiter or wander abroad, refusing to work for reasonable wages, or to betake themselves to some honest and lawful calling, or who shall desert wives or children, without so providing for them as that they shall not become chargeable to a county… [The poor who have no strength to labor are the] lame, impotent [i.e. weak], blind and other inhabitants of the county as are not able to maintain themselves” (Thomas Jefferson, “A Bill for Support of the Poor,” 1779). http://founders.archives.gov/documents/Jefferson/01-02-02-0132-0004-0032 D. According to Senator Guthrie, did government provide public assistance in the early days of the United States? If so, what kind of assistance? Was this approach effective? Was this approach harmful to the character of those who received public assistance? “Kentucky does not want and does not ask this relief [provided by the Federal Government to newly-freed slaves]. The freedmen in Kentucky are a part of our population; and where the old and lame and halt and blind and infants require care and attention they obtain it from the counties. Our whole organization for the support of the poor, through the agencies of the magistrates in the several counties, is complete” (Senator Guthrie, January 20, 1866, Congressional Globe, 335).

http://founders.archives.gov/documents/Jefferson/01-02-02-0132-0004-0032

For more on public assistance and character, see: 1. “The day you [Englishmen] passed that act [for the support of the poor], you took away from before their eyes the greatest of all inducements to industry, frugality, and sobriety, by giving them a dependence on somewhat else than a careful accumulation during youth and health, for support in age and sickness. In short, you offered a premium for the encouragement of idleness, and you should not now wonder that it has had its effects in the increase of poverty” (Benjamin Franklin, “On the Price of Corn, and Management of the Poor,” London Chronicle, November 29, 1766). 2. “Repeal that [welfare] law, and you will soon see a change in their manners. St. Monday and St. Tuesday, will soon cease to be holidays. Six days shalt thou labor, though one of the old commandments long treated as out of date, will again be looked upon as a respectable precept; industry will increase, and with it plenty among the lower people; their circumstances will mend, and more will be done for their happiness by inuring them to provide for themselves, than could be done by dividing all your estates among them” (Benjamin Franklin, “On the Price of Corn, and Management of the Poor,” London Chronicle, November 29, 1766).

Activity 63: Public assistance and personal responsibility “Of all the dispositions and habits which lead to political prosperity, Religion and morality are indispensable supports” (George Washington, Farewell Address, September 19, 1796. Alexander Hamilton wrote a first draft of this address). A. Based on these statements, what is the connection between politics and personal responsibility? “A frequent recurrence to the fundamental principles of the Constitution, and a constant adherence to those of piety, justice, moderation, temperance, industry, and frugality are absolutely necessary, to preserve the advantages of liberty, and to maintain free government” (Massachusetts Constitution of 1780). “[We declare] that no free government, or the blessings of liberty, can be preserved to any people, but by a firm adherence to justice, moderation, temperance, frugality, and virtue, and by frequent recurrence to fundamental principles” (Virginia Declaration of Rights and Constitution, 12 and 29 June 1776 in Lloyd, The Essential Bill of Rights, 188). B. Based on this statement, what is the connection between politics and personal responsibility? “Men are qualified for civil liberty, in exact proportion to their disposition to put moral chains upon their own appetites…. Society cannot exist unless a controlling power upon will and appetite be placed somewhere, and the less of it there is within, the more there must be without. It is ordained in the eternal constitution of things, that men of intemperate minds cannot be free.

Their passions forge their fetters” (Edmund Burke, A Letter to a Member of the National Assembly, May 1791). C. According to Nathaniel Chipman, what happens when government makes it possible for people to avoid the negative consequences of their irresponsible choices? Based on these observations, what do those in authority need to do if they want people to act responsibly? What do those in authority need not to do if they want people to act responsibly? “The laws of nature … have, by the connection of cause and effect, annexed the proper rewards and punishments to the actions of men…. Divert not the consequences of actions, as to the individual actors, from their proper course… The operation of the equal laws of nature, tend to exclude, or correct every dangerous excess.” (Nathaniel Chipman, Sketches of the Principles of Government, 1793) D. According to Herbert Spencer, what happens when government makes it possible for people to avoid the negative consequences of their irresponsible choices? Based on these observations, what do those in authority need to do if they want people to act responsibly? What do those in authority need not to do if they want people to act responsibly? “The ultimate result of shielding men from the effects of folly is to fill the world with fools.” (Herbert Spencer, Essays: Scientific, Political, and Speculative, Vol. 3, Ch. IX, State- Tamperings with Money and Banks, 1891)

Activity 64: Politics and Personal Responsibility “This [Government] … can only end in despotism … when the people shall become so corrupted as to need despotic Government, being incapable of any other.” (Benjamin Franklin, on the last day of the Constitutional Convention, September 17, 1787) “Nothing is more certain than that a general profligacy and corruption of manners make a people ripe for destruction. A good form of government may hold the rotten materials together for some time, but beyond a certain pitch, even the best constitution will be ineffectual, and slavery must ensue.” (John Witherspoon, Signer of the Declaration and Member of Congress from 1776-1782, in The Dominion of Providence Over the Passions of Men, 1776) Profligacy: dissoluteness—that is, being “indifferent to moral restraints; given to immoral or improper conduct” (dictionary.com); “A profligate or very vicious course of life; a state of being abandoned in moral principle and in vice.” (Webster’s 1828 Dictionary) A. What is the role of government in de Tocqueville’s vision of democratic despotism? What is the role of the people? What is the goal of this society? “I noticed during my stay in the United States that a democratic state of society similar to that of the Americans might offer unique opportunities for the establishment of despotism .... I think that

the kind of oppression that threatens democratic peoples will not resemble anything previously seen in the history of the world.... I see a multitude of people, too numerous to count, equal and alike.... Above them rises up a huge and guardian-like power, which is alone responsible for making sure that they are happy and for watching over their fate. It is absolute, attentive to details, regular, full of foresight, and gentle. It would resemble parental authority if, like that authority, it had for its purpose the preparation of people for adulthood. But, to the contrary, it only seeks to keep them in a state of permanent childhood. It likes it when the citizens enjoy themselves--provided that they do not think about anything other than enjoying themselves.... It provides for their security, anticipates and takes care of their needs, facilitates their pleasures, manages their most important affairs, directs their labors, makes rules for the writing of their wills, divides their inheritances; why couldn’t it relieve them entirely of the trouble of thinking and the difficulty of living?.... In the end, it reduces each nation to nothing but a flock of timid and hard-working animals--with the government as its shepherd” (Alexis de Tocqueville, Democracy in America, Vol. 2, Part IV, Chapter 6, 1840, tr. Michael Iachetta). Note: the above passage is not De Tocqueville’s description of conditions in the U.S. at the time he visited the US. It is a description of a political situation that he thinks could someday arise in a country such as the US. B. According to McPherson, whose responsibility is it to solve the personal problems of the American people? Is this the same goal as the one that de Tocqueville describes? “But a new philosophy of government had emerged since New Deal days. In essence it held that our problems were more of the spirit than of the flesh. People were suffering from a sense of alienation from one another, of anomie, of powerlessness. This affected the well-to-do as much as it did the poor. Middle-class women, bored and friendless in the suburban afternoons; fathers, working at “meaningless” jobs, or slumped before the television set; sons and daughters desperate for “relevance”--all were in need of community, beauty, and purpose, all were guilty because so many others were deprived while they, rich beyond their ancestor’s dreams, were depressed. What would change all this was a creative public effort: for the middle class, new parks, conservation, the removal of billboards and junk, adult education, consumer protection, better television, aid to the arts; for the poor, jobs, training, Head Start, decent housing, medical care, civil rights; for both, and for bridging the gap between them, VISTA, the Teacher Corps, the community action agencies, mass transportation, model cities.” (Harry McPherson, A Political Education, 301-302, in Ceaser, American Government, 101) C. Are the women described in this article living responsibly? If so, how so? If not, how might they live more responsibly? Based on this example, what is the impact of programs like welfare and Medicaid on liberty in the sense of a large area of personal responsibility without help from government?

• “For decades, Mississippi and neighboring states with…expanses of enduring poverty made steady progress in reducing infant death. But, in what health experts call an ominous portent, progress has stalled and in recent years the death rate has risen in Mississippi and several other states. The setbacks have raised questions about the impact of cuts in welfare and Medicaid and of poor access to doctors, and, many doctors say, the growing epidemics of obesity, diabetes and hypertension among potential mothers, some of whom tip the scales here at 300 to 400 pounds.” (Erik Eckholm, “In Turnabout, Infant Deaths Climb in South,” The New York Times, April 22, 2007).

• “Krystal Allen…was 17 when she had her first baby. When he was 4 months old, she

said, he developed breathing problems. Ms. Allen took the child to an emergency room, where he was put on a vaporizer and given an antibiotic and a prescription and they were sent home, where they slept for a few hours. “When I woke up I thought he was sleeping, and I was getting ready for church,” Ms. Allen said. “But he was dead.” Now 21, a mother of two with a third on the way, Ms. Allen lives in a sparsely furnished house in Hollandale with her unemployed boyfriend and his mother. Her children live with her parents. Ms. Allen greeted visitors with breakfast in hand: a bottle of Mountain Dew and a bag of chips. Janice Johnson, a social worker with Delta Health Partners, urged her to eat more healthily. “I’m going to change my diet one day,” Ms. Allen replied.” (Erik Eckholm, “In Turnabout, Infant Deaths Climb in South,” The New York Times, April 22, 2007).

D. Explain how the behavior described below makes it possible to live under limited government. “In 1981, Paul Thai was 18 when he and his family escaped the Khmer rouge in Cambodia and moved to Little Asia…. Eleven members of the Thai family shared a two-bedroom, one- bathroom apartment on Live Oak Street…. Lt. Thai said … ‘the first generation worked hard and saved their money so that they could move to a better home…. Sometimes two or more families would live together to save their money and later pool their resources to buy a house ’” (“Losing Little Asia,” Dallas Morning News, June 25, 2006).

Activity 65: Liberty Analysis (Having a large area of personal responsibility without help from government) “If it be a penalty, it is one which the offender may escape. It is likened unto the penalties of the divine law. The choice of good and evil is before them. The indulgence of evil is followed by punishment, because it is an inexorable law of man’s organization. The choice of good is followed by happiness, contentment, and prosperity. It is thus wisely ordained, that interest may constrain to duty, in the exercise of which the world is advanced and man is ennobled” (Senator John B. Henderson, June 8, 1866, Congressional Globe, 3035). Key Questions: Which side winning would require people to avoid undesirable consequences by exercising virtue? (That is the side that would promote personal responsibility.) Which side

winning would require people to experience the consequences of their own actions? (That is the side that would promote personal responsibility.) A. Which side in Eisenstadt v. Baird would most promote liberty in the sense of having a large area of personal responsibility without help from government? Why would this side promote this essential feature of liberty? (If this meaning of liberty does not apply to this case, say that it does not apply and explain why it does not apply.) “Appellee attacks his conviction of violating Massachusetts law for giving a woman a contraceptive foam at the close of his lecture to students on contraception. That law makes it a felony for anyone to give away a drug, medicine, instrument, or article for the prevention of conception except in the case of (1) a registered physician administering or prescribing it for a married person or (2) an active registered pharmacist furnishing it to a married person presenting a registered physician's prescription.” (U.S. Supreme Court, Eisenstadt, Sheriff v. Baird, 1972) B. Which side in Roe v. Wade would most promote liberty in the sense of having a large area of personal responsibility without help from government? Why would this side promote this essential feature of liberty? (If this meaning of liberty does not apply to this case, say that it does not apply and explain why it does not apply.) “A pregnant single woman (Roe) brought a class action challenging the constitutionality of the Texas criminal abortion laws, which proscribe procuring or attempting an abortion except on medical advice for the purpose of saving the mother’s life... A three-judge District Court… declared the abortion statutes void as vague and overbroadly infringing those plaintiffs’ Ninth and Fourteenth Amendment rights” (U.S. Supreme Court, Roe et al. v. Wade, District Attorney, 1973). C. Which side in Abington v. Schempp would most promote liberty in the sense of having a large area of personal responsibility without help from government? Why would this side promote this essential feature of liberty? (If this meaning of liberty does not apply to this case, say that it does not apply and explain why it does not apply.) “The Commonwealth of Pennsylvania by law, 24 Pa. Stat. 15-1516, as amended, Pub. Law 1928 (Supp. 1960) Dec. 17, 1959, requires that “At least ten verses from the Holy Bible shall be read, without comment, at the opening of each public school on each school day. Any child shall be excused from such Bible reading, or attending such Bible reading, upon the written request of his parent or guardian.” The Schempp family, husband and wife and two of their three children, brought suit to enjoin enforcement of the statute, contending that their rights under the Fourteenth Amendment to the Constitution of the United States are, have been, and will continue to be violated unless this statute be declared unconstitutional as violative of these provisions of the First Amendment. They sought to enjoin the appellant school district, wherein the Schempp children attend school, and its officers and the Superintendent of Public Instruction of the Commonwealth from continuing to conduct such readings and recitation of the Lord’s Prayer in the public schools of the district pursuant to the statute” (U.S. Supreme Court, School District of Abington Township, Pennsylvania, et al. v. Schempp et al., 1963).

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D. Which side in Ayotte v. Planned Parenthood of Northern New England would most promote liberty in the sense of having a large area of personal responsibility without help from government? Why would this side promote this essential feature of liberty? (If this meaning of liberty does not apply to this case, say that it does not apply and explain why it does not apply.) “New Hampshire’s Parental Notification Prior to Abortion Act…prohibits physicians from performing an abortion on a pregnant minor until 48 hours after written notice of such abortion is delivered to her parent or guardian. The Act does not require notice for an abortion necessary to prevent the minor’s death if there is sufficient time to provide notice, and permits a minor to petition a judge to authorize her physician to perform an abortion without parental notification. The Act does not explicitly permit a physician to perform an abortion in a medical emergency without parental notification, Respondents … filed suit … claiming that the Act is unconstitutional because of the inadequacy of the life exception and the judicial bypass’ confidentiality provision” (U.S. Supreme Court, Ayotte v. Planned Parenthood of Northern New England, January 18, 2006).

Protective Barrier Number 13: The role of civil associations, community, and private

charity

Activity 66: More ways to address poverty that are compatible with limited government A. According to President Cleveland, how did early Americans help those in need? In his opinion, what is the problem with the Federal Government providing public assistance? “The friendliness and charity of our countrymen can always be relied upon to relieve their fellow citizens in misfortune. This has been repeatedly and quite lately demonstrated. Federal aid in such cases encourages the expectation of paternal care on the part of the government and weakens the sturdiness of our national character, while it prevents the indulgence among our people of that kindly sentiment and conduct which strengthens the bonds of a common brotherhood” (Grover Cleveland, Veto of the Texas Seed Bill, February 16, 1887). B. What feature of American life does de Tocqueville identify in the following passage? How might this feature serve as a barrier against tyranny? “Americans of all ages, of all conditions, of all minds, constantly unite. Not only do they have commercial and industrial associations in which they all take part, but they have a thousand other kinds [of civil associations]: … Americans associate to celebrate holidays, establish seminaries, build inns, erect churches, distribute books, send missionaries to the Antipodes; in this way they create hospitals, prisons, schools…. Wherever, at the head of a new undertaking, you see in

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France the government, and in England, a great lord, count on seeing in the United States an association” “A government could take the place of a few of the largest American associations … but what political power would ever be able to be sufficient for the innumerable multitude of small enterprises that the American citizens carry out every day with the aid of the association? [Draft: If you charge the great general association, which is called government, with them, tyranny is inevitable.]” (Alexis de Tocqueville, Democracy in America, Vol. III, Part II, Ch. 5, Liberty Fund, tr. James T. Schleifer). C. According to Herbert Hoover, how did early Americans help those in need? In his opinion, what is the problem with the Federal Government providing public assistance? “This is not an issue as to whether people shall go hungry or cold in the United States. It is solely a question of the best method by which hunger and cold shall be prevented. It is a question as to whether the American people on one hand will maintain the spirit of charity and mutual self help through voluntary giving and the responsibility of local government as distinguished on the other hand from appropriations out of the Federal Treasury for such purposes.” Source: Herbert Hoover, “Press Statement, February 3, 1931: The Importance of the Preservation of Self-help and of the Responsibility of Individual Generosity as Opposed to Deteriorating Effects of Government Appropriations,” in The State Papers and Other Public Writings of Herbert Hoover, Vol. I, 496. D. According to Herbert Hoover, what is the problem with the Federal Government providing public assistance? What is the “infinitely valuable” thing that this would impair? What are the “roots of self-government” that this would strike? “My own conviction is strongly that if we break down this sense of responsibility of individual generosity to individual and mutual self help in the country in times of national difficulty and if we start appropriations of this character we have not only impaired something infinitely valuable in the life of the American people but have struck at the roots of self-government. Once this has happened...we are faced with the abyss of reliance in future upon Government charity in some form or other.” Source: Herbert Hoover, “Press Statement, February 3, 1931: The Importance of the Preservation of Self-help and of the Responsibility of Individual Generosity as Opposed to Deteriorating Effects of Government Appropriations,” in The State Papers and Other Public Writings of Herbert Hoover, Vol. I, 496.

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Protective Barrier Number 14:

Personal Liberties (freedom of choice within certain limits)

Activity 67: The Meaning of Personal Liberties Note: Personal liberties (in the plural) is not the same thing as personal liberty (in the singular). Personal liberties refers to freedom of choice; personal liberty refers to not being imprisoned without trial. A. According to Blackstone, what is natural liberty? What are the limits on natural liberty? Do people who live in a civilized society enjoy natural liberty? Why or why not? “Natural liberty consists properly in a power of acting as one thinks fit, without any restraint or control, unless by the law of nature: being a right inherent in us by birth, and one of the gifts of God to man at his creation, when he endued him with the faculty of free-will. But every man, when he enters into society, gives up a part of his natural liberty, as the price of so valuable a purchase; and, in consideration of receiving the advantages of mutual commerce, obliges himself to conform to those laws, which the community has thought proper to establish. And this species of legal obedience and conformity is infinitely more desirable, than that wild and savage liberty which is sacrificed to obtain it” (Sir William Blackstone, Commentaries on the Laws of England, 1765, Book I, Chapter 1). B. How does Blackstone define political liberty? Based on this statement, when does political liberty permit government to put limits on our choices? When does it not permit this? “Political therefore, or civil, liberty, which is that of a member of society, is no other than natural liberty so far restrained by human laws (and no farther) as is necessary and expedient for the general advantage of the publick…. Every wanton and causeless restraint of the will of the subject, whether practiced by a monarch, a nobility, or a popular assembly, is a degree of tyranny…. Laws themselves, whether made with or without our consent, if they regulate and constrain our conduct in matters of mere indifference, without any good end in view, are laws destructive of liberty…” (Sir William Blackstone, Commentaries on the Laws of England, 1765, Book I, Chapter 1). C. According to Blackstone, when does political liberty permit government to put limits on our choices? When does it not permit this? “The statute of king Edward IV, which forbad the fine gentlemen of those times (under the degree of a lord) to wear pikes upon their shoes or boots of more than two inches in length, was a law that savoured of oppression; because, however ridiculous the fashion then in use might

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appear, the restraining it by pecuniary penalties could serve no purpose of common utility….That constitution or frame of government, that system of laws, is alone calculated to maintain civil liberty, which leaves the subject entire master of his own conduct, except in those points wherein the public good requires some direction or restraint” (Sir William Blackstone, Commentaries on the Laws of England, 1765, Book I, Chapter 1). D. According to Justice Fields in the Slaughterhouse Cases (1872), what kind of limits can States place on personal liberties, so long as nothing in the U.S. Constitution prohibits them? “The police power of the State ... undoubtedly extends to all regulations affecting the health, good order, morals, peace, and safety of society, and is exercised on a great variety of subjects, and in almost numberless ways. All sorts of restrictions and burdens are imposed under it…” (Justice Field, Supreme Court, dissenting in Slaughterhouse Cases, 1872). Note: it is important to remember the difference between personal liberty and personal liberties. Personal liberty is freedom from physical restraint. Personal liberties refer to a large area of personal choice without interference from government. For more on the police power, see: 1. “[The] police power [of the State] is not granted by or derived from the Federal Constitution, by reason of its never having be surrendered by the State to the General Government; … among the powers of the State, not surrendered – which power therefore remains with the State – is the power to so regulate the relative rights and duties of all within its jurisdiction so as to guard the public morals, the public safety and the public health, as well as to promote the public convenience and the common good…” (U.S. Supreme Court, House v. Mayes, 1911). 2. “It may be said in a general way that the police power extends to all the great public needs…. It may be put forth in aid of what is sanctioned by usage, or held by the prevailing morality or strong and preponderant opinion to be greatly and immediately necessary to the public welfare” (U.S. Supreme Court, Noble State Bank v. Haskell, 1911). For the understanding of personal liberties under common law, see: 1. “Without doubt, [liberty] denotes … the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men” (U.S. Supreme Court in Meyer v. Nebraska, 1923). 2. “The right of personal security consists in a person’s legal and uninterrupted enjoyment of his life, his limbs, his body, his health, and his reputation…. Life is the immediate gift of God, a right inherent by nature in every individual; and it begins in contemplation of law as soon as an infant is able to stir in the mother’s womb. For if a woman is quick with child, and by a potion, or otherwise killeth it in her womb; or if any one beat her, whereby the child dieth in her body,

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and she is delivered of a dead child; this, though not murder, was by the antient law homicide or manslaughter. But at present it is not looked upon in quite so atrocious a light, though it remains a very heinous misdemeanor” (William Blackstone, Commentaries on the Laws of England, Book 1, Chapter 1, 1765-1769). 3. “The infamous crime against nature, committed either with man or beast … ought to be strictly and impartially proved, and then as strictly and impartially punished…. The general punishment of all felonies is the same, namely, by hanging: and this offense … was made … felony without benefit of clergy by statute 5 Eliz. C, 17…. [Homicide, mayhem, forcible marriage, rape, and the crime against nature] are all the felonious offenses, more immediately against the personal security of the subject” (William Blackstone, Commentaries on the Laws of England, Book 4, Chapter 15, 1765-1769). 4. “Before we quit this subject [of offense against religion and morality], we must take notice of the temporal punishment for having bastard children, considered in a criminal light; for with regard to the maintenance of such illegitimate offspring, which is a civil concern, we have formerly spoken at large. By the statute 18 Eliz. c.3. two justices may take order for the punishment of the mother and reputed father; but what that punishment shall be, is not therein ascertained : though the contemporary exposition was, that a corporal punishment was intended. By statute 7 Jac. I.c.4. a specific punishment (viz. commitment to the house of correction) is inflicted on the woman only. But in both cases, it seems that the penalty can only be inflicted, if the bastard becomes chargeable to the parish: for otherwise the very maintenance of the child is considered as a degree of punishment. By the last mentioned statute the justices may commit the mother to the house of correction, there to be punished and set on work for one year; and, in case of a second offence, till she find sureties never to offend again” (William Blackstone, Commentaries on the Law of England, “Of Offenses Against God and Religion,” Vol. 4, Ch. 4, 1765-1768).

Activity 68: Liberty Analysis (Personal Liberties) Key question: Which side winning would make it possible for citizens to make their own personal choices without interference from government—so long as they do not harm anyone or do things that are harmful to society? A. Which side in Abbington v. Schempp would most promote liberty in the sense of personal liberties? Why would this side promote this essential feature of liberty? (If this meaning of liberty does not apply to this case, say that it does not apply and explain why it does not apply.) “The Commonwealth of Pennsylvania by law … requires that “At least ten verses from the Holy Bible shall be read, without comment, at the opening of each public school on each school day. Any child shall be excused from such Bible reading, or attending such Bible reading, upon the written request of his parent or guardian.” The Schempp family, husband and wife and two of their three children, brought suit to enjoin enforcement of the statute, contending that their rights under the Fourteenth Amendment to the Constitution of the United States are, have been, and

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will continue to be violated unless this statute be declared unconstitutional as violative of these provisions of the First Amendment. They sought to enjoin the appellant school district, wherein the Schempp children attend school, and its officers and the Superintendent of Public Instruction of the Commonwealth from continuing to conduct such readings and recitation of the Lord’s Prayer in the public schools of the district pursuant to the statute” (U.S. Supreme Court, School District of Abington Township, Pennsylvania, et al. v. Schempp et al., 1963). B. Which side in Plyler v. Doe would most promote liberty in the sense of personal liberties? Why would this side promote this essential feature of liberty? (If this meaning of liberty does not apply to this case, say that it does not apply and explain why it does not apply.) The question presented by these cases is whether, consistent with the Equal Protection Clause of the Fourteenth Amendment, Texas may deny to undocumented school-age children the free public education that it provides to children who are citizens of the United States or legally admitted aliens. Since the late 19th century, the United States has restricted immigration into this country. Unsanctioned entry into the United States is a crime…and those who have entered unlawfully are subject to deportation….But despite the existence of these legal restrictions, a substantial number of persons have succeeded in unlawfully entering the United States, and now live within various States, including the State of Texas. In May 1975, the Texas Legislature revised its education laws to withhold from local school districts any state funds for the education of children who were not “legally admitted” into the United States. The 1975 revision also authorized local school districts to deny enrollment in their public schools to children not “legally admitted” to the country…. This is a class action, filed in the United States District Court for the Eastern District of Texas in September 1977, on behalf of certain school-age children of Mexican origin residing in Smith County, Tex., who could not establish that they had been legally admitted into the United States. The action complained of the exclusion of plaintiff children from the public schools of the Tyler Independent School District” (U.S. Supreme Court, Plyler v. Doe, 1982). C. Which side in Roe v. Wade would most promote liberty in the sense of personal liberties? Why would this side promote this essential feature of liberty? (If this meaning of liberty does not apply to this case, say that it does not apply and explain why it does not apply.) “A pregnant single woman (Roe) brought a class action challenging the constitutionality of the Texas criminal abortion laws, which proscribe procuring or attempting an abortion except on medical advice for the purpose of saving the mother’s life... A three-judge District Court… declared the abortion statutes void as vague and overbroadly infringing those plaintiffs’ Ninth and Fourteenth Amendment rights” (U.S. Supreme Court, Roe et al. v. Wade, District Attorney, 1973). D. Which side in Brown v. Board of Education would most promote liberty in the sense of personal liberties? Why would this side promote this essential feature of liberty? (If this

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meaning of liberty does not apply to this case, say that it does not apply and explain why it does not apply.) “In each of the cases, minors of the Negro race, through their legal representatives, seek the aid of the courts in obtaining admission to the public schools of their community on a nonsegregated basis. In each instance, they had been denied admission to schools attended by white children under laws requiring or permitting segregation according to race. This segregation was alleged to deprive the plaintiffs of the equal protection of the laws under the Fourteenth Amendment” (U.S. Supreme Court, Brown et al. v. Board of Education of Topeka et al., 1954).

For the difference between civil liberties (or personal liberties) and civil rights, see: “Civil liberties … refer to the freedoms of individuals from government control….Civil rights … refer to things to which the individual has a just and equal claim; the emphasis here is often on what government must do to ensure this claim” (James Ceaser, American Government, Seventh Edition, 489).

The Transformation of the Fourteenth Amendment

Activity 69: 14th amendment and its relationship to the Civil Rights Act of 1866 A. Based on this testimony, what problem were African-Americans facing in the southern States after they were freed from slavery? Question: [What would whites do with negroes in case the military force and Freedmen’s Bureau should be removed]? Answer: I do not think that the colored people would be safe…. (Dr. Daniel Norton, African-American, of Yorktown, VA, in Benj. B. Kendrick’s The Journal of the Joint Committee of Fifteen on Reconstruction, 269) Question: What is the prevailing sentiment among the rebels in regard to allowing negroes to become landholders in the state? Answer: There is a very general opposition to that…. (Mr. Ezra Heinstadt, of New Orleans, LA, in Benj. B. Kendrick’s The Journal of the Joint Committee of Fifteen on Reconstruction, 273-274)

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Question: According to your observation, what is the disposition of negroes in reference to working, if they can be assured of pay for their work? Answer: …I have always found the negro ready to work when he was assured that he would be paid according to his contract…. (Major General Edward Hatch, stationed in Mississippi and Alabama after the close of the war, in Benj. B. Kendrick’s The Journal of the Joint Committee of Fifteen on Reconstruction, 265- 276). Note: This testimony was given before the Congressional Joint Committee on Reconstruction in the period from January-April, 1866. “I hold in my hand a communication from Colonel De Gress, … in which he says: ‘I have the honor to respectfully report that in some portions of this State the negroes are not yet free; that the pass system is still in force…” (Senator Trumbull, April 4, 1866, Congressional Globe, 1759). B. Which rights does the Civil Rights Act of 1866 require state governments to protect? How did this solve the problems African-Americans were experiencing in the southern States after they were freed from slavery? “Citizens of every race and color … shall have the same right in every State and territory to make and enforce contracts, to sue, to be sued, be parties and give evidence, to inherit, to purchase, lease, sell, hold, and convey real and personal property, and to be entitled to full and equal benefit of all laws and proceedings for the security of person and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other” (Civil Rights Act of 1866, Section 1). C. According to Garfield, why is Congress proposing the 14th amendment? What is the relationship between the Civil Rights Act of 1866 and the 14th amendment? What rights does the 14th amendment protect? “The civil rights bill is now a part of the law of the land. But every gentleman knows it will cease to be a part of the law whenever the sad moment arrives when that gentleman’s party comes into power. It is precisely for that reason that we propose to lift that great and good law above the reach of political strife, beyond the reach of the plots and machinations of any party, and fix it in the serene sky, in the eternal firmament of the Constitution, where no storm of passion can shake it and no cloud can obscure it. For this reason, and not because I believe the civil rights bill unconstitutional, I am glad to see that first section here” (Rep. James A. Garfield of Ohio on 14th amendment, May 8, 1866). D. According to Raymond, why is Congress proposing the 14th amendment? What is the relationship between the Civil Rights Act of 1866 and the 14th amendment? What rights does the 14th amendment protect?

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• “I regarded it as very doubtful…whether Congress, under the existing Constitution, had any power to enact [the Civil Rights Bill]….And now, although that bill became a law and is now upon our statute-book, it is again proposed so to amend the Constitution as to confer upon Congress the power to pass it” (Representative Henry J. Raymond of New York on the 14th amendment, May 9, 1866).

• “The ‘civil rights bill’ which is now law…covers exactly the same ground as this

amendment.” (Rep. George R. Latham of West Virginia, May 29, 1866). For further evidence that Section 1 of the 14th Amendment and the Civil Rights Act of 1866 are identical in content, see also: 1. “As I understand it, it is but incorporating in the Constitution of the United States the principle of the civil rights bill which has lately become a law, and that, not…because in the estimation of this House that law cannot be sustained as constitutional, but in order…that that provision so necessary for the equal administration of the law, so just in its operation, so necessary for the protection of the fundamental rights of citizenship, shall be forever incorporated in the Constitution of the United States” (Representative Martin Thayer of Pennsylvania on Section 1 of the 14th amendment, May 8, 1866). 2. “I voted for the civil rights bill, and I did so under a conviction that we have ample power to enact into law the provisions of that bill. But I shall gladly do what I may to incorporate into the Constitution provisions which will settle the doubt which some gentlemen entertain upon that question” (Representative Thomas D. Eliot of Massachusetts on the 14th amendment, May 9, 1866). 3. “I need not enumerate these partial and oppressive laws. Unless the Constitution should restrain them those States will all, I fear, keep up this discrimination, and crush to death the hated freeman. Some answer, ‘Your civil rights bill secures the same things.’ That is partly true, but a law is repealable by a majority” (Representative Stevens, May 8, 1866, Congressional Globe, 2459). 4. “Well, all I have to say about this section is, that if it is necessary to adopt it, in order to confer upon Congress power over the matters contained in it, then the civil rights bill, which the President vetoed, was passed without authority, and is clearly unconstitutional” (Representative Finck, May 8. 1866, Congressional Globe, 2461 ). 5. “The first section embodies the principles of the civil rights bill…” (Representative Boyer, May 8, 1866, Congressional Globe, 2467). 6. “Mr. Speaker, in the short time allotted for this discussion it is not my purpose to go over the propositions embraced in the pending amendment to the Constitution. Nor do I regard it necessary, at least so far as my own position is concerned, having already in this House voted for at least three of the propositions in substantially the same shape in which they are now presented” (Representative McKee, May 9, 1866, Congressional Globe, 2504).

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7. “The second section of the joint resolution is also inconsistent with the action of the committee. They reported the bill known as the ‘civil rights bill,’ which has become a law. What necessity is there, then, for this amendment to the Constitution if that bill was constitutional at the time of its passage? Is it not an admission that it was not? Ay, but the gentleman from Pennsylvania gives us here another party reason. He tells us that the time may come when the Democrats will get possession of Congress, and if you depend upon a mere act of Congress, that it will be repealed…” (Representative Eldridge, May 9, 1866, 2506). 8. “But now [the civil rights bill] comes before us in the form of an amendment to the Constitution, which proposes to give Congress the power to attain this precise result” (Representative Raymond, May 9, 1866, Congressional Globe, 2513). 9. “This section of the joint resolution is no more nor less than an attempt to embody in the Constitution of the United States the outrageous and miserable civil rights bill which passed both Houses of Congress and was vetoed by the President of the United States…” (Representative Rogers, May 10, 1866, Congressional Globe, 2538). 10. “Mr. President, the celebrated civil rights bill which has been passed during the present Congress, which was the forerunner of this constitutional amendment, and to give validity to which this constitutional amendment is brought forward, and which without this constitutional amendment to enforce it has no validity so far as this question is concerned, uses the following language….It was because Mr. Bingham and others of the House of Representatives and other persons upon the committee had doubts, at least, as to the constitutionality of the civil rights bill that the proposition to amend the Constitution now appears to give it validity and force” (Senator Doolittle, May 30, 1866, Congressional Globe, 2896). 11. “We desired to put this question of citizenship and the rights of citizens and freedmen under the civil rights bill beyond the legislative power of such gentleman as the Senator from Wisconsin, who would pull the whole system up by the roots and destroy it, and expose the freedmen again to the oppression of their old masters” (Senator Howard, May 30, 1866, Congressional Globe, 2896). 12. “Mr. President, all the questions involved in the proposed amendments to the Constitution have been so elaborately and ably discussed on former occasions during the present session that I do not feel at liberty to attempt to argue them at length….Congress has already shown its desire and intention to uproot and destroy all such partial State legislation in the passage of what is called the civil rights bill. The power of Congress to do this has been doubted and denied by persons entitled to high consideration. It certainly seems desirable that no doubt should be left existing as to the power of Congress to enforce principles lying at the very foundation of all republican government if they be denied or violated by the States…” (Senator Poland, June 5, 1866, Congressional Globe, 2961). 13. “That amendment … simply embodied the gist of the civil rights bill…” (Representative Rogers, June 9, 1866, Congressional Globe, Appendix 329).

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14. “The fact that all who will vote for the pending measure…voted for this proposition in another shape, in the civil rights bill, shows that it will meet the favor of the House. It may be asked, why should we put a provision in the Constitution which is already contained in an act of Congress? The gentleman from Ohio may answer this question. He says the act is unconstitutional…. If we are already safe with the civil rights bill, it will do no harm to prevent a mere majority from repealing the law…” (Representative John M. Broomhall of Pennsylvania on the 14th amendment, May 9, 1866).

Activity 70: The meaning of the terms of the 14th amendment; Present Application of the Fourteenth Amendment (Bill of Rights) “No State shall … deprive any person of life, liberty, or property, without due process of law” (Sec. 1, 14th Amendment of the U.S. Constitution, 1868). “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States…nor deny to any person within its jurisdiction the equal protection of the laws” (Sec. 1, 14th Amendment of the U.S. Constitution, 1868). “The first and governing maxim in the interpretation of a statute is, to discover the meaning of those, who made it …” (James Wilson, Lectures on Law, Part I, Ch. 1). A. What are the three basic rights of human beings, according to Blackstone? How does Blackstone define personal liberty? “[The absolute rights of individuals] may be reduced to three principal or primary articles... I. The right of personal security [consisting] in a person’s legal and uninterrupted enjoyment of his life, his limbs...II. ....the personal liberty of individuals...[consisting] in the power of locomotion, of changing situations or moving one’s person to whatsoever place one’s own inclination may direct, without imprisonment, or restraint, unless by due course of law... III. The third absolute right, inherent in every Englishman...of property: which consists in the free use, enjoyment and disposal of all his acquisitions, without any control or diminution, save only by the laws of the land” (William Blackstone, Commentaries on the Laws of England; James F. Wilson read this to the House when explaining the Civil Rights Bill of 1866, March 1, 1866, in Congressional Globe, 1118). B. What are privileges and immunities, according to Kent? Which part of liberty does the “privileges and immunities” clause of the 14th amendment (quoted at the beginning of this activity) guarantee? “The privileges and immunities conceded by the Constitution of the United States to citizens of the several States were to be confined to those which were, in their nature, fundamental, and belonged of right to the citizens of all free Governments. Such are the rights of protection of life and liberty, and to acquire and enjoy property” (James Kent, Commentaries on American Law,

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quoted by Senator Trumbull on April 4, 1866, Congressional Globe, 1757; quoted by Rep. Lawrence on April 7, 1866, Congressional Globe, 1836). C. How does the Supreme Court define the word “liberty” in the due process clause of the 14th amendment in Meyer v. Nebraska (1923)? What evidence does the court give for this definition? “Without doubt, [the word “liberty” in the due process clause of the 14th Amendment] denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.” D. Gitlow v. New York (1925): According to the Supreme Court in Gitlow v. New York (1925), who now has power laws concerning speech and press? On which part of the U.S. Constitution is this ruling based? What evidence does the Supreme Court give for the correctness of its decision? “For present purposes we may and do assume that freedom of speech and of the press—which are protected by the First Amendment from abridgment by Congress—are among the fundamental personal rights and “liberties” protected by the due process clause of the Fourteenth Amendment from impairment by the States.” For more on the definition of personal liberty, as understood by the Framers of the 14th Amendment, see: 1. “The absolute rights of individuals may be resolved into the right of personal security, the right of personal liberty, and the right to acquire and enjoy property. These rights have been justly considered, and frequently declared, by the people of this country, to be natural, inherent, and unalienable. The effectual security and enjoyment of them depend upon the existence of civil liberty; and that consists in being protected and governed by laws made, or assented to, by the representatives of the people, and conducive to the general welfare” (James Kent, Commentaries on American Law, Lecture XXIV; James F. Wilson read this to the House when explaining the Civil Rights Bill of 1866, March 1, 1866, in Congressional Globe, 1118; the first two sentences are quoted by Senator Trumbull on April 4, 1866, Congressional Globe, 1757; Rep. Lawrence read it in the House on April 7, 1866, Congressional Globe, 1833). 2. “The right of personal liberty is another absolute right of individuals, which has long been a favorite of the English law. It is not only a constitutional principle…that no person shall be deprived of his liberty without due process of law, but effectual provision is made against all unlawful restraint, or imprisonment, by the security of the privilege of habeas corpus….The right of deliverance from all unlawful imprisonment, to the full extent of the remedy provided by the habeas corpus act, is a common law right…” (James Kent, Commentaries on American Law, Vol. 2, 22-23).

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The complete text of Section 1 of the Fourteenth Amendment:

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Activity 71: Present Application of the 14th Amendment “The words ‘due process’ have a precise technical import, and are only applicable to the process and proceedings of the courts of justice; they can never be referred to an act of the legislature” (Hamilton, New York Assembly, 6 February, 1787). “The right of the people to be secure…against unreasonable searches and seizures shall not be violated…” (4th Amendment of US Constitution). A. In Griswold v. Connecticut (1965), the Supreme Court ruled that Connecticut cannot prohibit married women from using birth control pills: on which part or parts of the US Constitution is this ruling based? How does this ruling impact liberty in the sense of personal liberties? How does it impact liberty in the sense of self-government? “…Coming to the merits, we are met with a wide range of questions that implicate the Due Process Clause of the Fourteenth Amendment.…The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras (that is, partial shadows), formed by emanations (that is, things sent out in rays, as in rays of light) from those guarantees that help give them life and substance…. We recently referred in Mapp v. Ohio [1961], to the Fourth Amendment as creating a “right to privacy, no less important than any other right carefully and particularly reserved to the people.” We have had many controversies over these penumbral rights of “privacy and repose.” …These cases bear witness that the right of privacy which presses for recognition here is a legitimate one. The present case, then, concerns a relationship lying within the zone of privacy created by several fundamental constitutional guarantees….We deal with a right of privacy older than the Bill of Rights….Marriage is…intimate to the degree of being sacred.” B. According to Goldberg’s concurring opinion in Griswold v. Connecticut (1965), how does the 9th amendment help us to understand the meaning of the word “liberty” in the due process clause of the 14th amendment? How does this compare to Madison’s understanding of the 9th Amendment?

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• “This Court has held … that the Fifth and Fourteenth Amendments protect certain

fundamental personal liberties from abridgement by the Federal Government or the States…. The Ninth Amendment simply lends strong support to the view that the “liberty” protected by the Fifth and Fourteenth Amendments from infringement by the Federal Government or the States is not restricted to rights specifically mentioned in the first eight amendments.” (Justice Goldberg, concurring opinion in Griswold v. Connecticut)

• “It has been objected also against a bill of rights, that, by enumerating particular

exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration, and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the general (i.e. Federal) government, and were consequently insecure… [This] may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the 4th resolution (i.e. the original draft of the 9th amendment)” (James Madison, speaking in Congress, June 8, 1789).

C. According to the Supreme Court in Roe v. Wade (1973), which part of the US Constitution guarantees a woman’s right to get an abortion?—that is, which part prohibits States from making it a crime to get an abortion? Is this how the Framers of the 14th Amendment understood this word?

• “This right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy” (U.S. Supreme Court, Roe et al. v. Wade, District Attorney, 1973).

• “The central holding of Roe v. Wade (1973)…--that the word ‘liberty’ in the Fourteenth

Amendment includes a woman’s right to make this difficult and extremely personal decision--makes it impossible for me to understand how a State has any legitimate interest in requiring a doctor to follow any procedure other than the one that he or she reasonably believes will best protect the woman in her exercise of this constitutional liberty” (Stenberg v. Carhart, 2000, Justice Stevens, with whom Justice Ginsburg joins, concurring).

D. Lawrence v. Texas (2003): According to the Supreme Court, which part of the US Constitution guarantees a person’s right to engage in homosexual sex? How does this ruling affect liberty in the sense of constitutionally limited government?

• “The liberty protected by the Constitution allows homosexual persons the right to make this choice.”

• “These matters … are central to the liberty protected by the Fourteenth Amendment.”

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• “Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government.”

See also the Supreme Court’s ruling in Obgerfell v. Hodges (2105):

“The fundamental liberties protected by [the Due Process] Clause [of the Fourteenth Amendment] include most of the rights enumerated in the Bill of Rights. See Duncan v. Louisiana, 391 U. S. 145, 147–149 (1968). In addition these liberties extend to certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs.”

For more on the present application of the 14th amendment, see: “These statutes [prohibiting interracial marriages] also deprive the Lovings of liberty without due process of law in violation of the Due Process Clause of the Fourteenth Amendment. The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men….To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes…is surely to deprive all the State’s citizens of liberty without due process of law….Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State” (U.S. Supreme Court, Loving v. Virginia, 1967). For more on Goldberg’s judicial philosophy, see: “[Justice Goldberg] was a wonderful person…. His first question in approaching a case always was, “What is the just result?” Then he would work backward from the answer to that question to see how it would comport with relevant theory or precedent. It took me a while to get used to that approach…. Justice Goldberg opened my consciousness to the fact that the overarching purpose is about justice” (Peter Edelman, former clerk for Goldberg, DC Bar, April 2008). http://www.dcbar.org/for_lawyers/resources/publications/washington_lawyer/april_2008/legends .cfm

Activity 72: Constitutional Change; Judicial Activism and Judicial Restraint “American constitutions were written and adopted under conditions radically unlike those of the present …. They did not and could not foresee the direction of industrial development, the increased complexity of social life, nor the expansion of national territory. Many measures which have proved indispensable have had therefore to be as it were smuggled in; they have been justified by ‘legal fictions’ and by interpretations which have stretched the original text to uses undreamed of” (John Dewey, Ethics, 1906).

http://www.dcbar.org/for_lawyers/resources/publications/washington_lawyer/april_2008/legends.cfm

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Mini-Lecture on Judicial Activism and Judicial Restraint

• Judicial Activism: When judges choose not to rule on the basis of how a law or the Constitution was understood by the people who passed (or ratified) it and give it a new and different meaning.

• Judicial Restraint: When judges choose to rule on the basis of how a law or the

Constitution was understood by the people who passed (or ratified) it rather than give it a new and different meaning.

“We hold these truths to be self-evident, that all men are created equal, that they 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….” “The first and most important thing to know about American constitutional law is that it has virtually nothing to do with the Constitution” (University of Texas Law Professor Lino Graglia, testimony before the House Subcommittee on Courts and Intellectual Property, May 15, 1997). A. According to the U.S. Constitution, what is the only legal way to change the US Constitution? What right or rights does this one way protect? Which meanings of liberty does it preserve? “The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States” (U.S. Constitution, Article V). B. According to Washington, what is the proper way to change the Constitution? Why does he think this is the proper and best way? What does he think would be the consequence of doing it any other way? Does Washington believe in a “living constitution”—that is, does he believe that the Supreme Court should have the power to amend the US Constitution? Why or why not? “If in the opinion of the People, the distribution or modification of the Constitutional powers be in any particular wrong, let it be corrected by an amendment in the way in which the Constitution designates. But let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed. The precedent must always greatly overbalance in permanent evil any partial or transient benefit which the use can at any time yield” (George Washington, Farewell Address, September 19, 1796). C. Does Jefferson believe in judicial activism or judicial restraint? According to Jefferson, how does judicial activism impact constitutionally limited government? In the case of judicial restraint, who decides what limits will be placed on government?

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“I had rather ask an enlargement of power from the nation, where it is found necessary, than to assume it by a construction which would make our powers boundless. Our peculiar security is in possession of a written Constitution. Let us not make it a blank paper by construction. [The Constitution] specifies & delineates the operations permitted to the federal government, and gives all the powers necessary to carry these into execution…. Nothing is more likely than that their enumeration of powers is defective. This is the ordinary case of all human works. Let us go on then perfecting it, by adding, by way of amendment to the Constitution, those powers which time & trial show are still wanting” (Thomas Jefferson to Nicholas, September 7, 1803). D. Does Meiklejohn believe in judicial activism or restraint? What about Burns? In the case of judicial activism, who decides what limits will be placed on government? How does this affect constitutionally limited government?

• “It is not…required that the meaning of the Constitution shall be in the future what it has been in the past. We are free to change the meaning both by interpretation and by explicit amendment” (Professor Alexander Meiklejohn).

• “Judicial interpretation of the Constitution, especially by the Supreme Court, plays an

important role in keeping the constitutional system up to date. As social and economic conditions have changed and new national demands developed, the Supreme Court has changed its interpretation of the Constitution accordingly. Because the Constitution adapts to changing times, it does not require frequent amendment” (James MacGregor Burns, Government by the People, “The Living Constitution,” 40).

For the difference in rhetoric between conservatives and liberals in regard to judicial activism and resrtraint, see: BUSH (to Gore): I’ll put competent judges on the bench, people who will strictly interpret the Constitution and will not use the bench to write social policy…. I believe that the judges ought not to take the place of the legislative branch of government, that they’re appointed for life and that they ought to look at the Constitution as sacred…. I don’t believe in liberal, activist judges. I believe in strict constructionists. And those are the kind of judges I will appoint….

GORE: Both of us use similar language to reach an exactly opposite outcome…. In my view, the Constitution ought to be interpreted as a document that grows with our country and our history….

BUSH: I’ll tell you what kind of judges he’ll put on there. He’ll put liberal, activist judges who will use their bench to subvert the legislature. That’s what he’ll do.

GORE: That’s not right.

(Source: First Bush-Gore Debate, October 3, 2000)

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For more on contraception and judicial interpretation, see:

“The legislative approach, Mrs. Sanger wrote, ‘seemed a slow and tortuous method of making clinics legal; we stood a better and quicker change by securing a favorable judicial interpretation through challenging the law directly’” (“Margaret Sanger is Dead,” New York Times, September 7, 1966).

Note: Jefferson feared that the Supreme Court would use its power of judicial review to establish “the despotism of an oligarchy.” Lincoln feared that if the Supreme Court used its policy of judicial review to establish policy, “the people will have ceased to be their own rulers, having to the extent, practically resigned their government into the hands of an eminent tribunal” 1. “To consider the judges as the ultimate arbiters of all constitutional questions is a very dangerous doctrine, and one which would place us under the despotism of an oligarchy” (Thomas Jefferson, letter to William Charles Jarvis). 2. “The candid citizen must confess that if the policy of government, upon vital questions affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made, in ordinary litigation between parties, in personal actions, the people will have ceased to be their own rulers, having, to that extent, practically resigned their government into the hands of an eminent tribunal” (Abraham Lincoln, First Inaugural Address, March 4, 1861).

Activity 73: Liberty Analysis (Living under a government that has limits on what it can do through a constitution), Part 2 Key Question: Which side winning would keep the Federal and State governments within the limits of the U.S. Constitution? (That side winning would promote liberty in the sense of constitutionally limited government.) A. Which side in Reynolds v. Sims would most promote liberty in the sense of living under a constitutionally limited government? Why would this side promote this essential goal of liberty? (If this meaning of liberty does not apply to this case, say that it does not apply and explain why it does not apply.) “We conclude that the Equal Protection Clause guarantees the opportunity for equal participation by all voters in the election of state legislators. Diluting the weight of votes because of place of residence impairs basic constitutional rights under the Fourteenth Amendment just as much as invidious discriminations based upon factors such as race, Brown v. Board of Education…. As stated in Gomillion v. Lightfoot, supra … ‘A citizen, a qualified voter, is no more nor no less so because he lives in the city or on the farm. This is the clear and strong command of our Constitution's Equal Protection Clause. This is an essential part of the concept of a government of laws, and not men. This is at the heart of Lincoln's vision of 'government of the people, by the people, [and] for the people.' The Equal Protection Clause demands no less than substantially

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equal state legislative representation for all citizens, of all places as well as of all races’” (U.S. Supreme Court, Reynolds v. Sims, 1964). B. Which side in Walker v. HUD would most promote liberty in the sense of living under a constitutionally limited government? Why would this side promote this essential goal of liberty? (If this meaning of liberty does not apply to this case, say that it does not apply and explain why it does not apply.) “This case began in 1985 and initially resulted in a consent decree, which was approved by the district court in 1987.... The consent decree addressed the plaintiff class’s challenge under the Equal Protection Clause of the Fourteenth Amendment … to the purposeful racial discrimination and segregation within DHA's public housing programs…. Virtually all non-elderly public housing units were constructed in minority areas of Dallas…. The 1987 consent decree required the demolition of approximately 2,600 units of public housing in DHA's West Dallas project, a public housing development located in a predominantly black area of the city and referred to by this court as ‘one of Dallas's worst slums.’ These units were to be replaced on a one-for-one basis with additional public housing units and Section 8 certificates and vouchers. The decree also required that one hundred newly constructed replacement units be built in a predominantly white area of Dallas, that a nondiscriminatory tenant selection and assignment plan be implemented, and that a Section 8 mobility plan be established to assist black families joining the Section 8 program in finding housing in white areas of Dallas” (The U.S. District Court’s ruling in Walker v. HUD, 1989, as described by the U.S. 5th Circuit Court of Appeals in Walker v. HUD, 1999). C. Which side in Roe v. Wade would most promote liberty in the sense of living under a constitutionally limited government? Why would this side promote this essential feature of liberty? (If this meaning of liberty does not apply to this case, say that it does not apply and explain why it does not apply.) “This right of privacy, whether it is founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment’s reservation of rights to the people, is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy” (U.S. Supreme Court, Roe et al. v. Wade, District Attorney, 1973). D. Which side in Lawrence v. Texas would most promote liberty in the sense of living under a constitutionally limited government? Why would this side promote this essential feature of liberty? (If this meaning of liberty does not apply to this case, say that it does not apply and explain why it does not apply.) “Responding to a reported weapons disturbance in a private residence, Houston police entered petitioner Lawrence’s apartment and saw him and another adult man, petitioner Garner, engaging in a private, consensual sexual act. Petitioners were arrested and convicted of deviate sexual intercourse in violation of a Texas statute forbidding two persons of the same sex to engage in certain intimate sexual conduct. In affirming, the State Court of Appeals held, inter alia, that the

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statute was not unconstitutional under the Due Process Clause of the Fourteenth Amendment.” (U.S. Supreme Court, Lawrence et al. v. Texas, 2003)

Texas History from the Perspective of Liberty, Part 11

Activity 74: Based on T.R. Fehrenbach, Lone Star (See PowerPoint slides for this activity on eCampus) A. Identify examples of injustice (violating person or property) or justice (securing or defending person or property) in this passage. Explain why these actions are unjust or just. B. Identify examples of people acquiring land justly (without violating anyone else’s rights) or unjustly (by violating the rights of others). Explain why these are examples of justly or unjustly acquiring land. C. Identify examples of people obtaining or failing to obtain happiness in this passage (for example, providing themselves with adequate food, shelter, and clothing). Explain why these are examples of obtaining or not obtaining happiness. D. Identify examples of just or unjust social organizations (systems that exist for the benefit of all, in which no person or group benefits from the violation of the person and property or possibility of happiness of any other person or group, as opposed to systems that exist for the benefit of a few at the expense of the person and property or possibility of happiness of everyone else; or vice-versa).

Activity 75: Based on T.R. Fehrenbach, Lone Star (See PowerPoint slides for this activity on eCampus) A. Identify examples of injustice (violating person or property) or justice (securing or defending person or property) in this passage. Explain why these actions are unjust or just. B. Identify examples of people acquiring land justly (without violating anyone else’s rights) or unjustly (by violating the rights of others). Explain why these are examples of justly or unjustly acquiring land. C. Identify examples of people obtaining or failing to obtain happiness in this passage (for example, providing themselves with adequate food, shelter, and clothing). Explain why these are examples of obtaining or not obtaining happiness. D. Identify examples of just or unjust social organizations (systems that exist for the benefit of all, in which no person or group benefits from the violation of the person and

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Texas History from the Perspective of Liberty, Part 12

Activity 76: Based on T.R. Fehrenbach, Lone Star (See PowerPoint slides for this activity on eCampus) A. Identify examples of injustice (violating person or property) or justice (securing or defending person or property) in this passage. Explain why these actions are unjust or just. B. Identify examples of people acquiring land justly (without violating anyone else’s rights) or unjustly (by violating the rights of others). Explain why these are examples of justly or unjustly acquiring land. C. Identify examples of people obtaining or failing to obtain happiness in this passage (for example, providing themselves with adequate food, shelter, and clothing). Explain why these are examples of obtaining or not obtaining happiness. D. Identify examples of just or unjust social organizations (systems that exist for the benefit of all, in which no person or group benefits from the violation of the person and property or possibility of happiness of any other person or group, as opposed to systems that exist for the benefit of a few at the expense of the person and property or possibility of happiness of everyone else; or vice-versa).

Activity 77: Based on T.R. Fehrenbach, Lone Star (See PowerPoint slides for this activity on eCampus) A. Identify examples of injustice (violating person or property) or justice (securing or defending person or property) in this passage. Explain why these actions are unjust or just. B. Identify examples of people acquiring land justly (without violating anyone else’s rights) or unjustly (by violating the rights of others). Explain why these are examples of justly or unjustly acquiring land. C. Identify examples of people obtaining or failing to obtain happiness in this passage (for example, providing themselves with adequate food, shelter, and clothing). Explain why these are examples of obtaining or not obtaining happiness.

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Texas History from the Perspective of Liberty, Part 13

Activity 78: Based on T.R. Fehrenbach, Lone Star (See PowerPoint slides for this activity on eCampus) A. Identify examples of injustice (violating person or property) or justice (securing or defending person or property) in this passage. Explain why these actions are unjust or just. B. Identify examples of people acquiring land justly (without violating anyone else’s rights) or unjustly (by violating the rights of others). Explain why these are examples of justly or unjustly acquiring land. C. Identify examples of people obtaining or failing to obtain happiness in this passage (for example, providing themselves with adequate food, shelter, and clothing). Explain why these are examples of obtaining or not obtaining happiness. D. Identify examples of just or unjust social organizations (systems that exist for the benefit of all, in which no person or group benefits from the violation of the person and property or possibility of happiness of any other person or group, as opposed to systems that exist for the benefit of a few at the expense of the person and property or possibility of happiness of everyone else; or vice-versa).

Activity 79: Based on T.R. Fehrenbach, Lone Star (See PowerPoint slides for this activity on eCampus) A. Identify examples of injustice (violating person or property) or justice (securing or defending person or property) in this passage. Explain why these actions are unjust or just. B. Identify examples of people acquiring land justly (without violating anyone else’s rights) or unjustly (by violating the rights of others). Explain why these are examples of justly or unjustly acquiring land.

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C. Identify examples of people obtaining or failing to obtain happiness in this passage (for example, providing themselves with adequate food, shelter, and clothing). Explain why these are examples of obtaining or not obtaining happiness. D. Identify examples of just or unjust social organizations (systems that exist for the benefit of all, in which no person or group benefits from the violation of the person and property or possibility of happiness of any other person or group, as opposed to systems that exist for the benefit of a few at the expense of the person and property or possibility of happiness of everyone else; or vice-versa).

Activities on Critical Thinking

Controversy: Was it legal for a man to beat his wife in the early days of the United States? (The answer is no … just keep on reading.)

Activity 80: Critical Thinking A. According to the Report of the United States Commission on Civil Rights, was it legal for men to physically chastise their wives in the early days of the United States? On what evidence do they base their conclusion? “American law is built upon the British common law that condoned wife beating and even prescribed the weapon to be used. This ‘rule of thumb’ stipulated that a man could only beat his wife with a ‘rod not thicker than his thumb.’ [Blackstone] greatly influenced the making of the law in the American colonies [and] commented on the ‘rule of thumb’… justifying the rule by noting that ‘the law thought it reasonable to intrust [the husband] with this power of... chastisement, in the same moderation that a man is allowed to correct his apprentices or children.’” (“Under the Rule of Thumb: Battered Women and the Administration of Justice: A Report of the United States Commission on Civil Rights,” January 1982, p. 2) B. According to United Press International and Carole Sheffield in Women: A Feminist Perspective, was it legal for men to physically chastise their wives in the early days of the United States? On what evidence do they base their conclusion?

“English Common Law, from which our own laws are derived, allowed a man to beat his “wayward” wife as long as the switch he used was not thicker than the size of his thumb. A female caseworker in Cleveland says she never uses the term “rule of thumb” because of what it traditionally implies. (UPI, November 9, 1986)

“The popular expression ‘rule of thumb’ originated from English common law, which allowed a husband to beat his wife with a whip or stick no bigger in diameter than his thumb. The husband’s prerogative was incorporated into American law. Several states had statutes that essentially allowed a man to beat his wife without interference from the courts.” (Carole

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Sheffield, “Sexual Terrorism,” in the textbook Women: A Feminist Perspective, Mayfield Publishing, 1989, p. 7) C. According to the Washington Post, was it legal for men to physically chastise their wives in the early days of the United States? On what evidence does it base its conclusion?

“A husband’s right to beat his wife is included in Blackstone’s 1768 codification of the common law. Husbands had the right to ‘physically chastise’ an errant wife so long as the stick was no bigger than their thumb--the so-called ‘rule of thumb.’ (Washington Post, January 3, 1989)

“Today’s cultures have strong historical, religious, and legal legacies that reinforce the legitimacy of wife-beating. Under English common law, for example, a husband had the legal right to discipline his wife - subject to a ‘rule of thumb’ that barred him from using a stick broader than his thumb. Judicial decisions in England and the United States upheld this right until well into the 19th century.” (Washington Post, April 9, 1989)

D. According to the Los Angeles Times and the Chicago Tribune, was it legal for men to physically chastise their wives in the early days of the United States? On what evidence do they base their conclusion?

“In English common law, a man was considered to have a right to ‘physically chastise an errant wife’. What passed for restraint was the notorious ‘rule of thumb’ which stated that the stick he beat her with could not exceed the width of the thumb.” (Los Angeles Times, September 4, 1989, p. 1)

“In state courts across the country, wife beating was legal until 1890. There was a ‘rule of thumb,’ by which courts had stated a man might beat his wife with a switch no thicker than his thumb.” (Chicago Tribune, March 18, 1990)

For more false statements on wife-beating in the early days of the United States, see: 1. “Our law, based upon the old English common-law doctrines, explicitly permitted wife- beating for correctional purposes. However, certain restrictions did exist.... For instance, the common-law doctrine had been modified to allow the husband ‘the right to whip his wife, provided that he used a switch no bigger than his thumb’ - a rule of thumb, so to speak.” (Del Martin, Battered Wives, Volcano Press, 1976, p. 31) 2. “One of the reasons nineteenth century British wives were dealt with so harshly by their husbands and by their legal system was the ‘rule of thumb’…. Blackstone saw nothing unreasonable about the wife-beating law. In fact, he believed it to be quite moderate.” (Terry Davidson, “Wife Beating: A Recurring Phenomenon Throughout History,” in Maria Roy, ed. Battered Women, Van Nostrand Reinhold, 1977, pp. 17-18) 3. “Until the 19th Century, there was a charming little rule of thumb that applied to family life. A man was allowed to beat his wife as long as the stick he used was no wider than a thumb. (Ellen Goodman, Washington Post, April 19, 1983)

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4. “The colloquial phrase ‘rule of thumb’ is supposedly derived from the ancient right of a husband to discipline his wife with a rod ‘no thicker than his thumb.’ (Time magazine, September 5, 1983)

5. “Patricia Ireland said she learned the rule of thumb which, under English common law, allowed a man to beat his wife as long as he used a stick no thicker than his thumb.” (Orlando Sentinel, December, 1991) 6. Violence against women does not have to be the rule of thumb - an idiom from an old English law that said a man could beat his wife if the stick was no thicker than his thumb. (Atlanta Constitution, April 22, 1993)

7. “We talk about the notion of the rule of thumb, forgetting that it had to do with the restriction on a man’s right to use a weapon against his wife: he couldn’t use a rod that was larger than his thumb.” (New York University law professor Holly Maguigan, as quoted in Time, January 18, 1993, p. 41)

8. “I think we’re undoing thousands and thousands of years of human history. You know the phrase ‘rule of thumb’ that everybody thinks is the standard measure of everything? It was a law in England that said you could beat your wife with a stick as long as it was no thicker ... than your thumb.” (Sheila Kuehl, Civil Rights Attorney, Law Professor, and currently California State Senator, on “Sonya Live,” CNN, May 26, 1993)

Activity 81: Critical Thinking (Continued) “The law protects the ward from its guardian, the child from its parent, the wife from her husband, nay, even the dumb brute from its owner.” (Representative Donnelly, February 1, 1866, Congressional Globe 589) A. According to Blackstone, did the common law permit men to physically chastise their wives?

“The husband ... by the old law, might give his wife moderate correction. For, as he is to answer for her misbehaviour, the law thought it reasonable to intrust him with this power of restraining her, by domestic chastisement, in the same moderation that a man is allowed to correct his apprentices or children.... But this power of correction was confined within reasonable bounds and the husband was prohibited from using any violence to his wife.... But with us, in the politer reign of Charles the Second [1660-1685], this power of correction began to be doubted; and a wife may now have security of the peace against her husband; or, in return, a husband against his wife. Yet [among] the lower rank of people ... the courts of law will still permit a husband to restrain a wife of her liberty in case of any gross misbehaviour.” (Sir William Blackstone, Commentaries on the Laws of England, vol. 1, 1766)

B. According to the Oxford English Dictionary, does the phrase “rule of thumb” have anything to do with wife-beating?

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Rule of thumb: “…a roughly practical method….1692 SIR W. HOPE Fencing-Master 157 What he doth, he doth by rule of thumb and not by Art. 1721 KELLY Scot. Prov. 257 No rule so good as Rule of Thumb, if it hit. GROSE Dict. Vulgar T., Thumb, by rule of thumb, to do a thing by dint of practice. 1802 Sporting Mag. XX.17 Too often did she apportion the drugs by the rule of thumb….” C. According to Elizabeth Pleck, was it legal for men to physically chastise their wives in the early days of the United States? On what evidence does she base their conclusion? “It has often been claimed that wife-beating in nineteenth-century America was legal.... Actually, though, several states passed statutes legally prohibiting wife-beating; and at least one statute even predates the American Revolution. The Massachusetts Bay Colony prohibited wife-beating as early as 1655. The edict states: ‘No man shall strike his wife nor any woman her husband on penalty of such fine not exceeding ten pounds for one offense, or such corporal punishment as the County shall determine.’ (Elizabeth Pleck, “Wife Beating in Nineteenth-Century America,” Victimology: An International Journal 4, 1979: 71, 60-61, as quoted in Sommers, Who Stole Feminism?, 205-206) D. According to Christina Hoff Sommers, what is the origin of the false idea that husbands could beat their wives if the stick was not thicker than their thumbs? “Just how did the false account originate, and how did it achieve authority and currency?....In the course of rendering rulings on cases before them, two Southern judges had alluded to an ‘ancient law’ according to which a man could beat his wife as long as the implement was not wider than his thumb. The judges, one from North Carolina and one from Mississippi, did not accept the authority of the ‘ancient law.’ The North Carolina judge referred to it as ‘barbarism,’ and both judges found the husband in the case in question guilty of wife abuse.” (Sommers, Who Stole Feminism: How Women Have Betrayed Women, 1994, p. 206) The cases referred to here are Bradley v. State, Walker 156, Miss. 1824; State v. Oliver, 70 N.C. 61, 1874. Consider this ancient proverb: “The first one to plead his cause seems right, until his neighbor comes and examines him.”

For the unabridged Blackstone text, see: A. “THE husband also (by the old law) might give his wife moderate correction. For, as he is to answer for her misbehaviour, the law thought it reasonable to intrust him with this power of restraining her, by domestic chastisement, in the same moderation that a man is allowed to correct his servants or children; for whom the master or parent is also liable in some cases to answer. But this power of correction was confined within reasonable bounds; and the husband was prohibited to use any violence to his wife, aliter quam ad virum, ex causa regiminis et castigationis uxoris suae, licite et rationabiliter pertinet [other than lawfully and reasonably pertains to the husband for the rule and punishment of his wife]. The civil law gave the husband the same, or a larger, authority over his wife; allowing him, for some misdemeanors, flagellis et fustibus acriter verberare uxorem [to beat his wife severely with whips and sticks]; for others,

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only modicam castigationem adhibere [to apply moderate punishment]. But, with us, in the politer reign of Charles the second, this power of correction began to be doubted: and a wife may now have security of the peace against her husband; or, in return, a husband against his wife. Yet the lower rank of people, who were always fond of the old common law, still claim and exert their antient privilege: and the courts of law will still permit a husband to restrain a wife of her liberty, in case of any gross misbehaviour.” (Sir William Blackstone, Commentaries on the Laws of England, Book I, Chapter 15) http://www.yale.edu/lawweb/avalon/blackstone/bk1ch15.htm

Activity 82: Plato’s Image of the Cave A. What do the prisoners in this cave see? What do they not see? What mistake do they make? Who are the people walking behind the screen and who or what do they represent? (See passage A below)

B. In what way are the people in this cave “like us,” as Socrates says? What, if anything, does this image tell us about learning? What prevents us from learning? (See passage A below)

Passage A: Plato’s Image of the Cave in Republic, Book VII (tr. Iachetta) After these things, I said, “Compare our nature concerning education and lack of education to this kind of a condition: see people in an underground cave-like home. It has an entrance that is long and open to the light and extends the entire length of the cave. The people are in this home from childhood and their legs and necks are in chains, so that they remain in place and see only what is in front of them. They are unable to turn their heads around on account of the chain. Their light is the light of a fire burning from above and far behind them and between the fire and the prisoners there is a road above. Along this road see a wall built alongside it, just like the screens that are placed in front of people for the use of puppeteers, above which they show their puppets. “I see,” [Glaucon] said. “See, then, along this wall people who are carrying all kinds of vessels and holding them over the wall—as well as statues of human beings and other animals made of stone and wood and all kinds of materials. As one might expect, some of the statue-bearers are talking and others are silent. “You are,” he said, “speaking of a strange image and strange prisoners.” “They are like us,” I said. “For, in the first place, do you think that such people see anything of themselves and of one another except shadows formed by the fire and falling upon the side of the cave that is opposite them?”

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“How could they, if they should have been compelled throughout their lives to hold their heads motionless?” “What about the things that are carried by? Is it not the same with them?” “Certainly.” “If they should be able to converse with one another, do you not suppose that they would believe that the very things that they were seeing were real?” “Necessarily.” “What if the prison should have an echo from the point opposite them? When one of the passersby should make a sound, do you think that they would suppose that the thing making the sound was anything other than the shadow that was passing by?” “By Zeus, I do not,” he said. “Absolutely,” I said, “Such people would believe that the truth is nothing other than the shadows of the vessels.” “Very necessarily,” he said C. How is the prisoner released? Does the prisoner want to be released? Does the prisoner enjoy being released? Who is releasing the prisoner? What is the released prisoner’s attitude toward what he or she is now seeing? How can we be released? (See passage B below) D. How does Socrates describe the way out of the cave? What does the released prisoner see once he or she gets out of the cave? What does all of this tell us about learning and what hinders us from learning? (See passage B below)

Passage B: Plato’s Image of the Cave in Republic, Book VII (continued) (tr. Iachetta) “Consider,” I said, “their release from their chains and the healing of their foolishness—the kind of release and healing there would be, if something like the following should happen to them: when someone should be released and compelled suddenly to stand up and turn his neck and walk and look up at the light. As he does these things, he experiences pain and because of the brilliance of the light he is unable to see the things of which he once saw the shadows. What do you think that he would say, if someone should say to him that what he used to see was foolishness, but now that he is nearer to what is real and has been turned more toward real things, he see more correctly? What do you think he would say, if someone should show him each of the things passing by, ask him what it is, and compel him to answer? Don’t you think that he would be at a loss and would suppose that the things that he once saw were truer than the things being shown now?”

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“Very much so,” he said. “Isn’t it the case that if someone should compel him to look at the light itself, he would experience pain in his eyes and he would flee, turning back to those things that he was able to see, and he would believe that, in reality, these things were clearer than what was being shown?” “It would be so,” he said. “If,” I said, “someone should drag him from there by force through the rugged and steep ascent and would not let him go until he should drag him into the light of the sun, don’t you think that he would suffer pain and be annoyed as he was being dragged? When he should come to the light and his eyes are full of its brilliance, do you think that he would be able to see even one of the things that are now said to be true?” “Not right away, at least,” he said. “I think there would be a need for getting accustomed to it, if someone should be on their way to seeing the things above. First, he would most easily see shadows, and after this reflections of people and other things in water, and later the things themselves. Then he would behold more easily the things in the sky and the sky itself by night, looking toward the light of the stars and moon, than by day the sun and the light of the sun.” “Of course.” “Finally, I think, he would be able to see the sun, not its images in water or in any other place, but the sun itself in its own place—and he would be able to see it as it is.” “That is necessarily so.”

Additional Questions: 1. According to Socrates, how do most of us arrive at our opinions? What makes it difficult for us to learn? “Do you too believe, as do the many, that certain young men are corrupted by sophists...? Isn’t it rather the very men who say this who are the biggest sophists, who educate most perfectly and who turn out young and old, men and women, just the way they want them to be?” “But when do they do that?” he said. “When,” I said, “many gathered together sit down in assemblies, courts, theaters, army camps, or any other common meeting of a multitude, and with a great deal of uproar, blame some of the things said or done, and praise others, both in excess, shouting and clapping; and, besides, the rocks and the very place surrounding them echo and redouble the uproar of blame and praise.

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Now in such circumstances, as the saying goes, what do you suppose is the state of the young man’s heart? Or what kind of private education will hold out for him and not be swept away by such blame and praise and go, borne by the flood, wherever it tends so that he’ll say the same things are noble and base as they do, practice what they practice, and be such as they are?” “The necessity is great, Socrates,” he said. (Plato’s Republic, tr. Allan Bloom, 492A) 2. According to Lincoln, who is the most powerful person in a democratic society? “In this and like communities, public sentiment is everything. With public sentiment, nothing can fail; without it nothing can succeed. Consequently, he who molds public sentiment goes deeper than he who enacts statutes or pronounces decisions. He makes statutes and decisions possible or impossible to be executed.” (Abraham Lincoln, Lincoln-Douglas Debates)

Suggested Readings Anderson, Benjamin M., Economics and the Public Welfare, Liberty Fund, 1979 (especially Chapter 41, “My Father Also Chastised You with Whips, But I Will Chastise You with Scorpions”) Berger, Raoul, Government By Judiciary: The Transformation of the Fourteenth Amendment, Liberty Fund, 1997 De Tocqueville, Alexis, Democracy in America The Federalist Papers The Founders’ Constitution, Liberty Fund Johnson, Paul, A History of the American People, Harper Collins, 1997 (especially part 7, “Nothing to Fear but Fear Itself”) Johnson, Paul, Modern Times, Harper Collins, 1991 (especially chapter 7, “Degringolade”) Mayer, David N., The Constitutional Thought of Thomas Jefferson, University Press of Virginia, 1997 West, Tom, Vindicating the Founders, Rowman & Littlefield, 1997 Note: many books that Liberty Fund publishes are available for free online at their website.

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Scenarios from Actual Supreme Court Cases 1. “Benjamin Gitlow was indicted in the Supreme Court of New York, with three others, for the statutory crime of criminal anarchy. New York Penal Law, 160, 161.1 He was separately tried, convicted, and sentenced to imprisonment….The case is here on writ of error to the Supreme Court, to which the record was remitted. The contention here is that the statute, by its terms and as applied in this case, is repugnant to the due process clause of the Fourteenth Amendment.” (Gitlow v. People of the State of New York, 1925) 2. “Title II has the caption "Federal Old-Age Benefits." The benefits are of two types, first, monthly pensions, and second, lump sum payments…. The scheme of benefits created by the provisions of Title II is not in contravention of the limitations of the Tenth Amendment…. Congress may spend money in aid of the ‘general welfare.’ Constitution, Art. I, section 8; United States v. Butler, 297 U.S. 1, 65; Steward Machine Co. v. Davis, supra. There have been great statesmen in our history who have stood for other views. We will not resurrect the contest. It is now settled by decision. United States v. Butler, supra. The conception of the spending power advocated by Hamilton and strongly reinforced by Story has prevailed over that of Madison, which has not been lacking in adherents…. Nor is the concept of the general welfare static. Needs that were narrow or parochial a century ago may be interwoven in our day with the wellbeing of the Nation. What is critical or urgent changes with the times” (U.S. Supreme Court, Helvering v. Davis, 1937). 3. “It is urged that, under the Commerce Clause of the Constitution, Article I, § 8, clause 3, Congress does not possess the power it has in this instance sought to exercise…. This Act extends federal regulation to production not intended in any part for commerce, but wholly for consumption on the farm…. The present Chief Justice has said in summary of the present state of the law: The commerce power is not confined in its exercise to the regulation of commerce among the states. It extends to those activities intrastate which so affect interstate commerce … as to make regulation of them appropriate means to the attainment of a legitimate end, the effective execution of the granted power to regulate interstate commerce. . .” (U.S. Supreme Court, Wickard v. Filburn, 1942). 4. “Petitioner after jury trial was found guilty of disorderly conduct in violation of a city ordinance of Chicago and fined. The case grew out of an address he delivered in an auditorium in Chicago under the auspices of the Christian Veterans of America…. Outside of the auditorium a crowd of about one thousand persons gathered to protest against the meeting….The crowd outside was angry and turbulent. Petitioner in his speech condemned the conduct of the crowd outside and vigorously, if not viciously, criticized various political and racial groups whose activities he denounced as inimical to the nation’s welfare…. The argument here has been focused on the issue of whether the content of petitioner’s speech was composed of derisive, fighting words, which carried it outside the scope of the constitutional guarantees…” (U.S. Supreme Court, Terminiello v. City of Chicago, 1949). 5. “In each of the cases, minors of the Negro race, through their legal representatives, seek the aid of the courts in obtaining admission to the public schools of their community on a nonsegregated basis. In each instance, they had been denied admission to schools attended by

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white children under laws requiring or permitting segregation according to race. This segregation was alleged to deprive the plaintiffs of the equal protection of the laws under the Fourteenth Amendment” (U.S. Supreme Court, Brown et al. v. Board of Education of Topeka et al., 1954). 6. “The Commonwealth of Pennsylvania by law, 24 Pa. Stat. 15-1516, as amended, Pub. Law 1928 (Supp. 1960) Dec. 17, 1959, requires that “At least ten verses from the Holy Bible shall be read, without comment, at the opening of each public school on each school day. Any child shall be excused from such Bible reading, or attending such Bible reading, upon the written request of his parent or guardian.” The Schempp family, husband and wife and two of their three children, brought suit to enjoin enforcement of the statute, contending that their rights under the Fourteenth Amendment to the Constitution of the United States are, have been, and will continue to be violated unless this statute be declared unconstitutional as violative of these provisions of the First Amendment. They sought to enjoin the appellant school district, wherein the Schempp children attend school, and its officers and the Superintendent of Public Instruction of the Commonwealth from continuing to conduct such readings and recitation of the Lord’s Prayer in the public schools of the district pursuant to the statute” (U.S. Supreme Court, School District of Abington Township, Pennsylvania, et al. v. Schempp et al., 1963). 7. “We conclude that the Equal Protection Clause guarantees the opportunity for equal participation by all voters in the election of state legislators. Diluting the weight of votes because of place of residence impairs basic constitutional rights under the Fourteenth Amendment just as much as invidious discriminations based upon factors such as race, Brown v. Board of Education…. As stated in Gomillion v. Lightfoot, supra … ‘A citizen, a qualified voter, is no more nor no less so because he lives in the city or on the farm. This is the clear and strong command of our Constitution's Equal Protection Clause. This is an essential part of the concept of a government of laws, and not men. This is at the heart of Lincoln's vision of 'government of the people, by the people, [and] for the people.' The Equal Protection Clause demands no less than substantially equal state legislative representation for all citizens, of all places as well as of all races’” (U.S. Supreme Court, Reynolds v. Sims, 1964). 8. “Appellants, the Executive Director of the Planned Parenthood League of Connecticut, and its medical director, a licensed physician, were convicted as accessories for giving married persons information and medical advice on how to prevent conception and, following examination, prescribing a contraceptive device or material for the wife’s use. A Connecticut statute makes it a crime for any person to use any drug or article to prevent conception. Appellants claimed that the accessory statute as applied violated the Fourteenth Amendment.” (U.S. Supreme Court, Griswold et al. v. Connecticut, 1965) 9. In June 1958, two residents of Virginia, Mildred Jeter, a Negro woman, and Richard Loving, a white man, were married in the District of Columbia pursuant to its laws. Shortly after their marriage, the Lovings returned to Virginia and established their marital abode in Caroline County. At the October Term, 1958, of the Circuit Court [388 U.S. 1, 3] of Caroline County, a grand jury issued an indictment charging the Lovings with violating Virginia’s ban on interracial marriages. On January 6, 1959, the Lovings pleaded guilty to the charge and were sentenced to one year in jail; however, the trial judge suspended the sentence for a period of 25 years on the condition that the Lovings leave the State and not return to Virginia together for 25 years….After

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their convictions, the Lovings took up residence in the District of Columbia. On November 6, 1963, they filed a motion in the state trial court to vacate the judgment and set aside the sentence on the ground that the statutes which they had violated were repugnant to the [the Equal Protection and Due Process Clauses of the] Fourteenth Amendment. (Loving v. Virginia, 1967) 10. “Appellee attacks his conviction of violating Massachusetts law for giving a woman a contraceptive foam at the close of his lecture to students on contraception. That law makes it a felony for anyone to give away a drug, medicine, instrument, or article for the prevention of conception except in the case of (1) a registered physician administering or prescribing it for a married person or (2) an active registered pharmacist furnishing it to a married person presenting a registered physician's prescription.” (Eisenstadt, Sheriff, v. Baird, 1972) 11. “A pregnant single woman (Roe) brought a class action challenging the constitutionality of the Texas criminal abortion laws, which proscribe procuring or attempting an abortion except on medical advice for the purpose of saving the mother’s life... A three-judge District Court… declared the abortion statutes void as vague and overbroadly infringing those plaintiffs’ Ninth and Fourteenth Amendment rights” (U.S. Supreme Court, Roe et al. v. Wade, District Attorney, 1973). 12. “These three consolidated appeals require us to evaluate the progress of the Dallas Independent School District (DISD) in eliminating the vestiges of the dual educational system formerly mandated by Texas law…. We hold that the measures taken by the district court in the areas of student assignment and site selection and school construction to transform the DISD into a unitary system are inadequate to right the constitutional wrong denounced by the Supreme Court in Brown v. Board of Education, 1954…. It is imperative that the dual school structure of the DISD be completely dismantled by the start of the second semester of the 1975-76 academic year” (U.S. 5th Circuit Court of Appeals, Tasby v. Estes, 1975). 13. “Respondents, Negro and Mexican-American residents of Dallas, Tex., brought this action … against petitioners, the Mayor and members of the Dallas City Council, alleging that the City Charter's at-large system of electing council members unconstitutionally diluted the vote of racial minorities…. The District Court orally declared that system unconstitutional and then ‘afforded the city an opportunity as a legislative body for the City of Dallas to prepare a plan which would be constitutional.’ The City Council then passed a resolution expressing its intention to enact an ordinance that would provide for eight council members to be elected from single-member districts and for the three remaining members, including the Mayor, to be elected at large…. The District Court approved the plan, which the City Council thereafter formally enacted as an ordinance…. The Court of Appeals reversed, holding that the District Court had erred…. Held. The judgment is reversed and the case is remanded” (U.S. Supreme Court, Wise v. Lipscomb, 1979). 14. The question presented by these cases is whether, consistent with the Equal Protection Clause of the Fourteenth Amendment, Texas may deny to undocumented school-age children the free public education that it provides to children who are citizens of the United States or legally

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admitted aliens. Since the late 19th century, the United States has restricted immigration into this country. Unsanctioned entry into the United States is a crime…and those who have entered unlawfully are subject to deportation….But despite the existence of these legal restrictions, a substantial number of persons have succeeded in unlawfully entering the United States, and now live within various States, including the State of Texas. In May 1975, the Texas Legislature revised its education laws to withhold from local school districts any state funds for the education of children who were not “legally admitted” into the United States. The 1975 revision also authorized local school districts to deny enrollment in their public schools to children not “legally admitted” to the country…..This is a class action, filed in the United States District Court for the Eastern District of Texas in September 1977, on behalf of certain school-age children of Mexican origin residing in Smith County, Tex., who could not establish that they had been legally admitted into the United States. The action complained of the exclusion of plaintiff children from the public schools of the Tyler Independent School District.” (Plyler v. Doe, 1982) 15. “During the 1984 Republican National Convention in Dallas, Texas, respondent Johnson participated in a political demonstration to protest the policies of the Reagan administration and some Dallas-based corporations. After a march through the city streets, Johnson burned an American flag while protesters chanted. No one was physically injured or threatened with injury, although several witnesses were seriously offended by the flag burning. Johnson was convicted of desecration of a venerated object in violation of a Texas statute, and a State Court of Appeals affirmed. However, the Texas Court of Criminal Appeals reversed, holding that the State, consistent with the First Amendment, could not punish Johnson for burning the flag in these circumstances.” (Texas v. Johnson, 1989) 16. “At issue are five provisions of the Pennsylvania Abortion Control Act of 1982: 3205, which requires that a woman seeking an abortion give her informed consent prior to the procedure, and specifies that she be provided with certain information at least 24 hours before the abortion is performed; 3206, which mandates the informed consent of one parent for a minor to obtain an abortion, but provides a judicial bypass procedure; 3209, which commands that, unless certain exceptions apply, a married woman seeking an abortion must sign a statement indicating that she has notified her husband; 3203, which defines a “medical emergency” that will excuse compliance with the foregoing requirements; and 3207(b), 3214(a), and 3214(f), which impose certain reporting requirements on facilities providing abortion services. Before any of the provisions took effect, the petitioners, five abortion clinics and a physician representing himself and a class of doctors who provide abortion services, brought this suit seeking a declaratory judgment that each of the provisions was unconstitutional on its face, as well as injunctive relief. The District Court held all the provisions unconstitutional, and permanently enjoined their enforcement. The Court of Appeals affirmed in part and reversed in part, striking down the husband notification provision but upholding the others….Constitutional protection of the woman’s decision to terminate her pregnancy derives from the Due Process Clause of the Fourteenth Amendment. It declares that no State shall “deprive any person of life, liberty, or property, without due process of law.” The controlling word in the cases before us is “liberty.”“ (Planned Parenthood of Southeastern Pa. v. Casey, 1992) 17. “This case began in 1985 and initially resulted in a consent decree, which was approved by the district court in 1987.... The consent decree addressed the plaintiff class’s challenge under

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the Equal Protection Clause of the Fourteenth Amendment … to the purposeful racial discrimination and segregation within DHA's public housing programs…. Virtually all non- elderly public housing units were constructed in minority areas of Dallas…. The 1987 consent decree required the demolition of approximately 2,600 units of public housing in DHA's West Dallas project, a public housing development located in a predominantly black area of the city and referred to by this court as ‘one of Dallas's worst slums.’ These units were to be replaced on a one-for-one basis with additional public housing units and Section 8 certificates and vouchers. The decree also required that one hundred newly constructed replacement units be built in a predominantly white area of Dallas, that a nondiscriminatory tenant selection and assignment plan be implemented, and that a Section 8 mobility plan be established to assist black families joining the Section 8 program in finding housing in white areas of Dallas” (The U.S. District Court’s ruling in Walker v. HUD, 1989, as described by the U.S. 5th Circuit Court of Appeals in Walker v. HUD, 1999). 18. We apply these principles to a Nebraska law banning “partial birth abortion.” The statute reads as follows: ”No partial birth abortion shall be performed in this state, unless such procedure is necessary to save the life of the mother whose life is endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself.” Neb. Rev. Stat. Ann. §28-328(1) (Supp. 1999)…. Dr. Leroy Carhart is a Nebraska physician who performs abortions in a clinical setting. He brought this lawsuit in Federal District Court seeking a declaration that the Nebraska statute violates the Federal Constitution, and asking for an injunction forbidding its enforcement. After a trial on the merits, during which both sides presented several expert witnesses, the District Court held the statute unconstitutional. 11 F. Supp. 2d 1099 (Neb. 1998). On appeal, the Eighth Circuit affirmed. 192 F. 3d 1142 (1999); cf. Hope Clinic v. Ryan, 195 F. 3d 857 (CA7 1999) (en banc) (considering a similar statute, but reaching a different legal conclusion). We granted certiorari to consider the matter (Stenberg v. Carhart, 2000) 19. Prior to 1995, a student elected as Santa Fe High School’s student council chaplain delivered a prayer over the public address system before each home varsity football game. Respondents, Mormon and Catholic students or alumni and their mothers, filed a suit challenging this practice and others under the Establishment Clause of the First Amendment. While the suit was pending, petitioner school district (District) adopted a different policy, which authorizes two student elections, the first to determine whether “invocations” should be delivered at games, and the second to select the spokesperson to deliver them. After the students held elections authorizing such prayers and selecting a spokesperson, the District Court entered an order modifying the policy to permit only nonsectarian, nonproselytizing prayer. The Fifth Circuit held that, even as modified by the District Court, the football prayer policy was invalid. Held: The District’s policy permitting student-led, student-initiated prayer at football games violates the Establishment Clause. (Santa Fe Independence School District v. Doe, individually and as next friend for her minor children, et al., 2000) 20. The Child Pornography Prevention Act of 1996 (CPPA) expands the federal prohibition on child pornography to include not only pornographic images made using actual children, 18 U. S. C. §2256(8)(A), but also “any visual depiction, including any photograph, film, video,

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picture, or computer or computer-generated image or picture” that “is, or appears to be, of a minor engaging in sexually explicit conduct,” §2256(8)(B), and any sexually explicit image that is “advertised, promoted, presented, described, or distributed in such a manner that conveys the impression” it depicts “a minor engaging in sexually explicit conduct,” §2256(8)(D). Thus, §2256(8)(B) bans a range of sexually explicit images, sometimes called “virtual child pornography,” that appear to depict minors but were produced by means other than using real children, such as through the use of youthful-looking adults or computer-imaging technology. Section 2256(8)(D) is aimed at preventing the production or distribution of pornographic material pandered as child pornography. Fearing that the CPPA threatened their activities, respondents, an adult-entertainment trade association and others, filed this suit alleging that the “appears to be” and “conveys the impression” provisions are overbroad and vague, chilling production of works protected by the First Amendment” (Ashcroft, Attorney General, et al. v. Free Speech Coalition et al., 2002). 21. “Responding to a reported weapons disturbance in a private residence, Houston police entered petitioner Lawrence’s apartment and saw him and another adult man, petitioner Garner, engaging in a private, consensual sexual act. Petitioners were arrested and convicted of deviate sexual intercourse in violation of a Texas statute forbidding two persons of the same sex to engage in certain intimate sexual conduct. In affirming, the State Court of Appeals held, inter alia, that the statute was not unconstitutional under the Due Process Clause of the Fourteenth Amendment.” (Lawrence v. Texas, 2003) 22. “After approving an integrated development plan designed to revitalize its ailing economy, respondent city, through its development agent, purchased most of the property earmarked for the project from willing sellers, but initiated condemnation proceedings when petitioners, the owners of the rest of the property, refused to sell. Petitioners brought this state-court action claiming, inter alia, that the taking of their properties would violate the “public use” restriction in the Fifth Amendment’s Takings Clause.” (Kelo et al. v. City of New London et al., 2005) 23. “California’s Compassionate Use Act authorizes limited marijuana use for medicinal purposes. Respondents Raich and Monson are California residents who both use doctor- recommended marijuana for serious medical conditions. After federal Drug Enforcement Administration (DEA) agents seized and destroyed all six of Monson’s cannabis plants, respondents brought this action seeking injunctive and declaratory relief prohibiting the enforcement of the federal Controlled Substances Act (CSA) to the extent it prevents them from possessing, obtaining, or manufacturing cannabis for their personal medical use. Respondents claim that enforcing the CSA against them would violate the Commerce Clause and other constitutional provisions.” (Gonzales, Attorney General, et al. v. Raich et al., 2005) 24. “Among the 21 historical markers and 17 monuments surrounding the Texas State Capitol is a 6-foot-high monolith inscribed with the Ten Commandments. The legislative record illustrates that, after accepting the monument from the Fraternal Order of Eagles--a national social, civic, and patriotic organization--the State selected a site for it based on the recommendation of the state organization that maintains the capitol grounds. Petitioner, an Austin resident who encounters the monument during his frequent visits to those grounds, brought this 42 U. S. C. §1983 suit seeking a declaration that the monument’s placement violates the First Amendment’s

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Establishment Clause and an injunction requiring its removal. Holding that the monument did not contravene the Clause, the District Court found that the State had a valid secular purpose in recognizing and commending the Eagles for their efforts to reduce juvenile delinquency, and that a reasonable observer, mindful of history, purpose, and context, would not conclude that this passive monument conveyed the message that the State endorsed religion. The Fifth Circuit affirmed. Held: The judgment is affirmed” (U.S. Supreme Court, Van Orden v. Perry, in his official capacity as Governor of Texas and Chairman, State Preservation Board, et al., 2005). 25. “The Oregon Death With Dignity Act (ODWDA) exempts from civil or criminal liability state-licensed physicians who … dispense or prescribe a lethal dose of drugs upon the request of a terminally ill patient. In 2001, the Attorney General [of the United States] issued an Interpretive Rule … declaring that using controlled substances to assist suicide is not a legitimate medical practice and that dispensing or prescribing them for this purpose is unlawful under the CSA (Federal Controlled Substances Act).” (Gonzales v. Oregon, January 17, 2006) 26. “New Hampshire’s Parental Notification Prior to Abortion Act…prohibits physicians from performing an abortion on a pregnant minor until 48 hours after written notice of such abortion is delivered to her parent or guardian. The Act does not require notice for an abortion necessary to prevent the minor’s death if there is sufficient time to provide notice, and permits a minor to petition a judge to authorize her physician to perform an abortion without parental notification. The Act does not explicitly permit a physician to perform an abortion in a medical emergency without parental notification, Respondents…filed suit…claiming that the Act is unconstitutional because of the inadequacy of the life exception and the judicial bypass’ confidentiality provision.” (Ayotte v. Planned Parenthood of Northern New England, January 18, 2006) 27. “Pursuant to Congress' joint resolution authorizing the use of necessary and appropriate force against nations, organizations, or persons that planned, authorized, committed, or aided in the September 11, 2001, al Qaeda terrorist attacks, the President sent Armed Forces into Afghanistan to wage a military campaign against al Qaeda and the Taliban regime that had supported it. Petitioners, 2 Australians and 12 Kuwaitis captured abroad during the hostilities, are being held in military custody at the Guantanamo Bay, Cuba, Naval Base, which the United States occupies under a lease and treaty recognizing Cuba's ultimate sovereignty, but giving this country complete jurisdiction and control for so long as it does not abandon the leased areas. Petitioners filed suits under federal law challenging the legality of their detention, alleging that they had never been combatants against the United States or engaged in terrorist acts, and that they have never been charged with wrongdoing, permitted to consult counsel, or provided access to courts or other tribunals.” (Rasul v. Bush, 2004) 28. “Pursuant to Congress' Joint Resolution authorizing the President to "use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed or aided" the September 11, 2001, al Qaeda terrorist attacks (AUMF), U. S. Armed Forces invaded Afghanistan. During the hostilities, in 2001, militia forces captured petitioner Hamdan, a Yemeni national, and turned him over to the U. S. military, which, in 2002, transported him to prison in Guantanamo Bay, Cuba. Over a year later, the President deemed Hamdan eligible for trial by military commission for then-unspecified crimes. After another year, he was charged with conspiracy "to commit ... offenses triable by military commission." In

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habeas and mandamus petitions, Hamdan asserted that the military commission lacks authority to try him because (1) neither congressional Act nor the common law of war supports trial by this commission for conspiracy, an offense that, Hamdan says, is not a violation of the law of war; and (2) the procedures adopted to try him violate basic tenets of military and international law, including the principle that a defendant must be permitted to see and hear the evidence against him.” (Hamdan v. Rumsfeld, 2006) 29. “Petitioners are aliens detained at Guantanamo after being captured in Afghanistan or elsewhere abroad and designated enemy combatants by [Combatant Status Review Tribunals]. Denying membership in the al Qaeda terrorist network that carried out the September 11 attacks and the Taliban regime that supported al Qaeda, each petitioner sought a write of habeas corpus in the District Court, which ordered the cases dismissed for lack of jurisdiction because Guantanamo is outside sovereign territory. The D.C. Circuit affirmed, but this Court reversed, holding that 28 U.S.C s. 2241 extended statutory habeas jurisdiction to Guanatanamo. See Rasul v. Bush….While appeals were pending, Congress passed the Detainee Treatment Act of 2005, sec. 10005(e) of which amended 28 U.S.C. sec.2241 to provide that ‘no court, justice, or judge shall have jurisdiction to…consider…an application for…habeas corpus filed by or on behalf of an alien detained…at Guantanamo’….The D.C Circuit concluded that…petitioners are not entitled to…the protections of the Suspension Clause [of the US Constitution]…and that it was therefore unnecessary to consider whether the DTA provided an adequate and effective substitute for habeas” (Boumediene v. Bush, 2008). 30. “The City of Farmers Branch, Texas, (“the City”) appeals the district court’s summary judgment enjoining it from implementing a purported housing ordinance that requires all adults living in rental housing within the City to obtain an occupancy license conditioned upon the occupant’s citizenship or lawful immigration status. The district court concluded that the ordinance was preempted by federal law as a regulation of immigration that infringed Congress’s constitutional power…. We conclude that the ordinance’s sole purpose is not to regulate housing but to exclude undocumented aliens, specifically Latinos, from the City of Farmers Branch and that it is an impermissible regulation of immigration. We hold that the ordinance is unconstitutional and presents an obstacle to federal authority on immigration and the conduct of foreign affairs. We therefore AFFIRM the district court’s judgment” (U.S. 5th Circuit Court of Appeals, Villas at Parkside Partners, et al. v. City of Farmers Branch, Texas, 2012). 31. “The petition for a writ of certiorari is granted limited to the following question: Whether Congress’ decision in 2006 to reauthorize Section 5 of the Voting Rights Act … exceeded its authority under the Fourteenth and Fifteenth Amendments and thus violated the Tenth Amendment … of the United States Constitution” (Certiorari Granted, U.S. Supreme Court, Shelby, AL v. Holder, 2013). “Held: Section 4 of the Voting Rights Act is unconstitutional; its formula can no longer be used as a basis for subjecting jurisdictions to preclearance…. The formula captures States by reference to literacy tests and low voter registration and turnout in the 1960s and early 1970s. But such tests have been banned for over 40 years. And voter registration and turnout numbers in covered States have risen dramatically” (U.S. Supreme Court, Shelby AL v. Holder, 2013).

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Basic Principles of Texas Government
Michael S. Iachetta

Introduction: The Basic Rights of Human Beings

Activity 1: The Basic Rights of Human Beings
For the rights of women, see:
For the rights of Africans, see:
For the authority of William Blackstone, see:
For a definition of civil rights, see:

Features of the Texas/American System of Government that
Protects Against the Evil Side of People
Protective Barrier Number 1A/1B:
Evil Side of People/The Law of Nature

Activity 2: The Evil Side of People; the Law of Nature Establishes a Clear Definition of Right and Wrong

Protective Barrier Number 2:
Government

Activity 3: The Purpose of Government is to Protect the Person and Property of Citizens from the Evil Side of People

Protective Barrier Number 3:

Activity 4: The Political Purpose of the Family is to Protect the Person and Property of Citizens from the Evil Side of People

Texas History from the Perspective of Liberty, Part 1

Activity 5: Based on T.R. Fehrenbach, Lone Star (See PowerPoint slides for this activity on eCampus)
Activity 6: T.R. Fehrenbach, Lone Star Based on T.R. Fehrenbach, Lone Star (See PowerPoint slides for this activity on eCampus)

Protective Barrier Number 4: Religion

Activity 7: The Political Purpose of Religion is to Protect the Person and Property of Citizens from the Evil Side of People
Activity 8: Liberty Analysis (Religion)

Protective Barrier Number 5:

Activity 9: Equality and the Security of Person and Property
For the text of the Texas abortion statute, see:
For the question of whether or not government can show preference to one group of citizens over others, see:
Activity 10: Liberty Analysis (Government Protection of Person and Property of All Citizens, No Exceptions)

Texas History from the Perspective of Liberty, Part 2

Activity 11: Based on T.R. Fehrenbach, Lone Star (See PowerPoint slides for this activity on eCampus)
Activity 12: Based on T.R. Fehrenbach, Lone Star (See PowerPoint slides for this activity on eCampus)

Not Being Harmed By the Evil Side of Government:

Activity 13: Liberty as living under a government that does not harm us (in our person and property)
Activity 14: Liberty Analysis (Living under a Government that does not Harm the Person and Property of its Citizens)

Features of the Texas/American System of Government that
Protects Against the Evil Side of Government
Protective Barrier Number 2: Religion
Protective Barrier Number 3:

Activity 15: Personal Liberty (freedom from physical restraint)

Texas History from the Perspective of Liberty, Part 3

Activity 16: Based on T.R. Fehrenbach, Lone Star (See PowerPoint slides for this activity on eCampus)
Activity 17: Based on T.R. Fehrenbach, Lone Star (See PowerPoint slides for this activity on eCampus)
Activity 18: Examples of Governments that Violate the Right of Personal Liberty
Activity 19: Liberty Analysis (Personal Liberty)

Protective Barrier Number 4:

Activity 20: The Meaning, Importance, and Primary Purpose of Self-Government
For the primary purpose of self-government, see also:
Activity 21: Another Purpose of Self-Government; Two Potential Problems with Self-Government
Mini Lecture: We enjoy the greatest degree of self-government when the laws under which we live are made by our state legislature.

Texas History from the Perspective of Liberty, Part 4

Activity 22: Based on T.R. Fehrenbach, Lone Star (See PowerPoint slides for this activity on eCampus)
Activity 23: Based on T.R. Fehrenbach, Lone Star (See PowerPoint slides for this activity on eCampus)
Activity 24: Liberty Analysis (Having input into laws through our representatives in a legislature)
Activity 25: Texas Legislature

Political Requirements for Living under a Government that Protects and Does Not Harm Its Citizens (Continued)
Protective Barrier Number 5:

Activity 26: Living under a government that has limits through a constitution
Activity 27: More on living under a government that has limits through a constitution
For the lack of ambiguity in the U.S. Constitution, see:
For the general welfare clause and constitutionally limited government, see:

Texas History from the Perspective of Liberty, Part 5

Activity 28: Based on T.R. Fehrenbach, Lone Star (See PowerPoint slides for this activity on eCampus)
Activity 29: Based on T.R. Fehrenbach, Lone Star (See PowerPoint slides for this activity on eCampus)
Activity 30: The “Inviolable Sovereignty” of the States
Activity 31: The Increase of the Power of the Federal Government in the 20th Century
Activity 32: Political Philosophies and Political Parties
For the entire William Appleman Williams quotation:
Activity 33: Liberty Analysis (Living under a government that has limits on what it can do through a constitution, Part 1)
Activity 34: Texas Constitution
Activity 35: Executive Branch of the Texas Government

Texas History from the Perspective of Liberty, Part 6

Activity 36: Based on T.R. Fehrenbach, Lone Star (See PowerPoint slides for this activity on eCampus)
Activity 37: Based on T.R. Fehrenbach, Lone Star (See PowerPoint slides for this activity on eCampus)
Activity 38: Texas Courts; Federal Courts and Judicial Review
For the reason why a second highest court was added in Texas, see:
For the Court Structure of Texas, see:

Protective Barrier Number 6: Federalism

Activity 39: Federalism and the U.S. Constitution

Protective Barrier Number 7:

Activity 40: Independence from Other Nations
Activity 41: Independence of States within the United States

Texas History from the Perspective of Liberty, Part 7

Activity 42: Based on T.R. Fehrenbach, Lone Star (See PowerPoint slides for this activity on eCampus)
Activity 43: Based on T.R. Fehrenbach, Lone Star (See PowerPoint slides for this activity on eCampus)
Activity 44: Texas Declaration of Independence, part 1
Activity 45: Texas Declaration of Independence, part 2
Activity 46: Liberty Analysis (Liberty in the sense of independence—that is, not being ruled by people living outside of your political community)

Protective Barrier Number 8: A Bill of Rights

Activity 47: The original purpose of the Bill of Rights

Texas History from the Perspective of Liberty, Part 8

Activity 48: Based on T.R. Fehrenbach, Lone Star (See PowerPoint slides for this activity on eCampus)
Activity 49: Based on T.R. Fehrenbach, Lone Star (See PowerPoint slides for this activity on eCampus)

Protective Barrier Number 9:

Activity 50: Equality and the Declaration of Independence

Protective Barrier Number 10:

Activity 51: The Right of Secession; Texas Secession in 1861
Activity 52: More on the Right of Secession

Civil Society: The Non-Political Requirements for Living under a Government that Protects and Does Not Harm Its Citizens
Protective Barrier Number 11: Traditional, Father-Led Family; Father as Provider/Protector

Activity 53: The role of men in a free Society; the purpose of marriage

Texas History from the Perspective of Liberty, Part 9

Activity 54: Based on T.R. Fehrenbach, Lone Star (See PowerPoint slides for this activity on eCampus)
Activity 55: Based on T.R. Fehrenbach, Lone Star (See PowerPoint slides for this activity on eCampus)
Activity 56: The role of the family in a free society; the role of women
For more on women and the right to vote, see:
Activity 57: Liberty Analysis (Family)

A brief history of the birth control pill
Protective Barrier Number 12:

Activity 58: Personal choices and their consequences
Activity 59: Personal responsibility and ethics; personal responsibility and wealth

Texas History from the Perspective of Liberty, Part 10

Activity 60: Based on T.R. Fehrenbach, Lone Star (See PowerPoint slides for this activity on eCampus)
Activity 61: Based on T.R. Fehrenbach, Lone Star (See PowerPoint slides for this activity on eCampus)
Activity 62: Lack of personal responsibility and poverty
Activity 63: Public assistance and personal responsibility
Activity 64: Politics and Personal Responsibility
Activity 65: Liberty Analysis (Having a large area of personal responsibility without help from government)

Protective Barrier Number 13:

Activity 66: More ways to address poverty that are compatible with limited government

Protective Barrier Number 14:

Activity 67: The Meaning of Personal Liberties
Activity 68: Liberty Analysis (Personal Liberties)
For the difference between civil liberties (or personal liberties) and civil rights, see:

The Transformation of the Fourteenth Amendment

Activity 69: 14th amendment and its relationship to the Civil Rights Act of 1866
Activity 70: The meaning of the terms of the 14th amendment; Present Application of the Fourteenth Amendment (Bill of Rights)
The complete text of Section 1 of the Fourteenth Amendment:
Activity 71: Present Application of the 14th Amendment
See also the Supreme Court’s ruling in Obgerfell v. Hodges (2105):
For more on the present application of the 14th amendment, see:
Activity 72: Constitutional Change; Judicial Activism and Judicial Restraint
Mini-Lecture on Judicial Activism and Judicial Restraint
For the difference in rhetoric between conservatives and liberals in regard to judicial activism and resrtraint, see:
Activity 73: Liberty Analysis (Living under a government that has limits on what it can do through a constitution), Part 2

Texas History from the Perspective of Liberty, Part 11

Activity 74: Based on T.R. Fehrenbach, Lone Star (See PowerPoint slides for this activity on eCampus)
Activity 75: Based on T.R. Fehrenbach, Lone Star (See PowerPoint slides for this activity on eCampus)

Texas History from the Perspective of Liberty, Part 12

Activity 76: Based on T.R. Fehrenbach, Lone Star (See PowerPoint slides for this activity on eCampus)
Activity 77: Based on T.R. Fehrenbach, Lone Star (See PowerPoint slides for this activity on eCampus)

Texas History from the Perspective of Liberty, Part 13

Activity 78: Based on T.R. Fehrenbach, Lone Star (See PowerPoint slides for this activity on eCampus)
Activity 79: Based on T.R. Fehrenbach, Lone Star (See PowerPoint slides for this activity on eCampus)

Activities on Critical Thinking

Controversy: Was it legal for a man to beat his wife in the early days of the United States? (The answer is no … just keep on reading.)
Activity 80: Critical Thinking
Activity 81: Critical Thinking (Continued)
For the unabridged Blackstone text, see:
Activity 82: Plato’s Image of the Cave
Passage A: Plato’s Image of the Cave in Republic, Book VII (tr. Iachetta)
Additional Questions:

Suggested Readings
Scenarios from Actual Supreme Court Cases