Juris Magazine- Spring 1987

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. Sdl. I. At L Icgi/blive powers ,herein ~raotrJ Ihall be vcftl"d' in a COIl~rdl of the Unitcd States. which alaI! conflll of a SenOl!e and ilciu(c ot aep,c!eflu\ivC1. , .; Sdl • •". The Houfe' of Reprerrntative. Ih~~ be: cotnpofcd of mtlnbtrt chorto cvery fccClnd ynt by the: people of tbe,feverallhtr"and thef1?rt in :each ftate: hll hue the quali/kalion. requi.

Cate for deaort of tlte moll mlnleroui bra ' t 'he Olte kglllacutc. , ' ' No perfon than be: ~ reprcfenl3live. who " not, ba~e 3ttaine,d lothe ageof Iwtnty.live),car1,andbeen fe,en yean a, I;ltIzcn of tbe UllIted aod;,wbo Dot, .. !)cD deaed, be an inhabitant of that Ilate in which he Ihall be chofen. , , ' ' : • .4 , • RcprCr~t~'tvC~ and .dircfl taxel !ball be. " , ni~ :nnong ,be f~YeT:lI /tatc. v.. hieh may be included wIthin tb,ll UDlon.aecord\ll~ to their , r~ruy.:.\Ulfllbere, willch thall be deternJincli bya~ ing to the ,!"hole ~umber o( free perfons. i. , Qifl~ 1t!~IbOOhd .t.~ 'crvice (\)'- I -,~~.m "',?f )'''lIra! and c:xcludlng rndlana not taxed. ,bree.fiftfi§ ~ 2ft' OlfIcT~., "l'~ lICloaf mOIftet'.non lM1l be made within thrcc ycars..after the Ii,J~~illg or··th~'"{' of the United State~. and .ilhin nery rubfc,qucnuerm of tenJears. in fuch ~a,nncr a1 tbey /hall by law dire4. The Jlumbu of J:qlrcfcntauyta.lhall not excee one (or I:v.ny thmy i.hoofarrd, but' each Itate fhaIl hue ;It leall Olle ~tativc; and until fucb enumer:1tioft Jb.Ube rn\lde. me lla~ of New.Hamp/hire !hall be en. titled tf) chufe three. Matfach"ktta eight, l\lt~c·Ul;lDd ladPro,idcnce Plaotations one, Conn .. clicut five, New·Y Qrk:. 'fix, ~cw. Jcrfcy four. Penarrlv;ania eight, Delaware -OPe, Maryland fill, Virg;ni, .teD, North-Carolioa l1,e. Soutb-CaroJina-fiyc,l- and Georgili three:. oj '. When. vacanc;ica happen in Ibe rc:prdcruation from any ftatc, tbe lJ:ecuti,e autbority tbcrcq( !hall UJ'ue wrilt of e!caion to fill filch ncuac:ie.. ' • '. The Houre of Ucpr(fcnlalivc& fhall eh"Cc~ir Speak... :!Dd ot.er otice"; and /hall hne ,be fole power of impeachment. . , "", , _' ,&d. 3. The ;SCnate of the United SI:ttCl · ~ be compof.c:d of two Cenaton from eacb nilte, tholen bY. the legiSabue thereof. for fur yarq ' ~d cadi feaawr Olall have onc ,ole.

Immediately 'aIle'r, they iIlall be affembles In conrcqucncc: ot the tirtl dcilion. they Ih~1I be djvj. dcd: la, equally aa may be into three cwr~ ; ,'the feau of ct-.c frnator'& of Ihe tidl clar. 11, .. 11 b~ 'Uca. ,led; a(,tbe cxpiruion oC tbe fccQlld yen. o~ ,' fecond dars at the expiration of the fuuuh year, and dfthe tbird' clafs. at the espiration. ohbe ' 7~' Co thaL onc.lhi",!may ~ c!lof.c:n every fccond .' year; . and'if v&CUlcic:s happen by retie:~~~!(herwife, during the reeds ot the Legilhture of ..my f'ate, the El't~!n,_UlGCOf DlI,, ' , .'1.ypubJunc:utJ lUIltJ me'uat meetmg of t!le ...... -ugtlIll~rCh -flialt then fill ruch va~a~cie... . , No perfon thall be a fenator who Ihall not have iltu.ined to the a~ of thirty yean, and heen nine ycut:adllaeft of tbe Unltc<J Sua", and who lbaU noc, wben elcaed, be an inhabitant of thlllhl<. , . for which he {hall be chofen. " ·The' Vi(e·r~6dcnt of tbe: United StaIl:'I Iball be PrefideDt tbe fen:lte, but Ih;all lI;ne no \"Ote. uud' ,bey be: equally di"ided.

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DON'T GET LOST IN THE SHUFFLE FOLLOW THE LEADER

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New Jersey

New York

Andrea Bower Cindy Dornish Edie Gaiser Ray Harmuth Rita Valdrini

'88 '88 '88 '88 '88 '89

Roberta Gick

Pennsylvania

Wendy Burns Barb Cinpinski Fred Erny Valerie Sacks Bill Smith Gene Giotto

'87 '87 '87 '87 '87 '89

Contact your Josephson/Kluwer campus representative or

LEGAL EDUCATIONAL CENTERS, INC. 10 East 21 st Street 1206-7 New York, NY 10010 (212) 505-2060 or (800) 253-3456 outside NY ,© 1986, Josephson/Kluwer Legal Educational Centers , Inc .

Editor's note .

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Is America's civil religion under siege? n 1989, Americans will commemorate the ratification of our Constitution. We will celebrate our solemn compact in which the people and the.ir publi~ s~rvants have obligated themselves to observmg certam mdividualliberties and limitations on government. And it is these individual liberties and notions OUf Constitution of a limited governmen t which serve as the basis of America's civil religion.

As students of the Renasissance and eighteenth century Enlightenment, Madison, Jefferson, Adams, Franklin, and Hamilton, among others, were aware that their efforts were experimental. They recognized that neither the Constitution or the Bill of Rights stood as a perfect or absolute sense of human or political perfection. Wisely, they left to future generations the task of ensuring social and political stability.

Not so long ago, Attorney General Edwin Meese took the position that a Supreme Court decision, "lacks the character of law." Parties in the particular case must obey it and the government must force· them to if necessary, but the ruling "does not establish a 'supreme law of the land' that is binding on all persons and parts of the government."

As the years have passed, the Constitution has grown to be a more venerable part of our heritage. And without losing any of its flexibility, its guardians have been charged with the task of providing stability. While lawyers may appreciate the technical correctness of Meese's remarks, such comments do not serve the more critical objective of the Framers - to avoid albeit benign statements from high government officials which may diminish or dilute the constitutional instincts of the general public.

Fortunately, the Supreme Court's view of the Constitution will carry the day. But Meese's remark must give pause to those who stop and consider exactly what he is saying. Under his construction, would it not be logical to conclude that we, the people, would not benefit from the judicial prescriptions of equal protection and due process? Would not this arcane philosophical argument remove the Court as the principle bulwark against legislative and executive violations? And most importantly, is this the type of statement that should be made by not only our nation's attorney general but also one of the president's closest advisors.

Perhaps some comfort is available in that many of Meese's tautologous statements implode the moment he makes them. And these are numerous. But it strikes me that this particular utterance, if spoken loudly and often enough, could serve to upset that delicate balance to which our founders and subsequent generations have committed themselves.

J.R.

Inside This Issue of JURIS About our cover . ..

Two days after the Constitution had been adopted in convention, the Packet and Daily Advertiser published it and gave the new nation its first chance to read the document which was to guard its treasure of freedom.

Page 4 JURIS Squibbs 6 JURIS visits Lt. Governor Mark S. Singe I.

8 Amnesty International: The Constitution and Human Rights .

10 Two Hundred Years of Constitutionalism in the Americas .

16 Professor A. E. Dick Howard - An essay from one of our nation's most respected constitutional scholars and legal educators .

24 America's dates with destiny - A compilation

of commemorative dates for the celebration of the Bicentennial of the United States Constitution.

VOLUME 20

NUMBER3

SPRING 1987

Editor-In-Chief John T. Rago Senior Associate Editor Terence A. Plizga Managing Editor James Winzenreid Associate Editors James M. Catanzarite Thomas Sarkus Thomas Smith Timothy Uhrich Enrique Ventura Senior Staff Coordinator Kevin Lee

Articles Editor Glenn Taverna Alumni Editor Barb Cinpinski News Editors Valerie Sacks Robert Sebastian Production Editors Lynn Cummings Tamera Ochs Photographer David Kennedy

Staff Donna Kruman Marcia Allen-Aston Robert Downey Vito Bochicchio Renee Gonzalez-Schirra J. Kenneth Myers Joseph Bucci Monica Kowalewski Michael Sherman Faculty Advisor Administrative Assistant Patrick J. Basial Jan Daschbach

JURIS is a student publication of the Duquesne University School of Law. Views and opinions expressed are not necessarily those of JURIS or Duquesne University.

All manuscripts and comments may be addressed to:

JURIS Duquesne University School of Law 900 Locust Street Pittsburgh, Pennsylvania 15282 Telephone (412) 434-6305 Copyright © 1987 Duquesne University

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JURIS SQUIBBS PROMOTION AND TENURE NEWS

DUQUESNE. HARVARD 0 Fourth year evening students, Pete Marcoline and Mark Newberger

DUQUESNE SWEEPS ABA REGIONAL COMPETITION Duquesne continued its tradition of excellence in its moot court programs as the team of Pete Marcoline and Mark Newberger took top honors in the American Bar Association's National Appellate Advocacy Competition for Region One. In mid-March, Duquesne joined host school The University of Baltimore as well as Harvard; Vermont; Bridgeport; Delaware; and Temple Universities in this annual ABA competition. Duquesne defeated Harvard in the first round and went on to face Vermont in the final. The team of Marcoline and Newberger was the only team to remain undefeated throughout the competition as they distanced second place Vermont by a remarka?le 31 points, one of the largest marg~ns of victory recorded. Both Marcohne and Newberger are fourth year evening students. Readers of JUI,US will recall that fourth year evemng student, Mary Arena Hagen took third place for her individual advocacy and Duquesne finished third overall in the National Tax Moot Court competitions.

COMMENCEMENT SPEAKER ADVOCATES NO MORE BLUEBOOK The University of Chicago Law Review will issue a fifteen-page maroon-colored guide to legal writing citation in an attempt to ~ep!ace The Uniform System of CItatIon, Harvard's time honored, 255 page guideline for legal citation. This year's law commencement speaker, The Honorable Richard A. Posner says in the University of Chica~o Law Review, "The Bluebook dlsplays an excessive, unhealthy one is tempted to say - an unAmerican obsession with uniformity." Judge Posner further adds that the Bluebook encourages lawyers to "be vague, always weasel" and "insinuate that only a fool, or a person untutored. in the mystries of the law would dlsagree with you." The seventy-fourth annual Law School commencement will be held on Sunday, June 14, 1987 at 11:00 a.m. in the ballroom of the Duquesne Union.

CLS VISITED The next issue of JURIS will feature an interview with the cofounder of the Critical Legal Studies Movement, Harvard University Law Professor, Morton J. Horwitz.

Professor Ronald J. Ricci was recently granted tenure and promotion to the rank of full professor.

Professor Ricci presented an article to the Wake Forest Law Review titled, "The Perils of Caesar's Wife: Special Litigation Committees v.

The Judiciary; Is Anyone Above Reproach?" The Business Symposium, "Rights of Minority Shareholders," included articles from Professor J. A. C. Hetherington of the University of Virginia School of Law ("Defining the Scope of Controlling Shareholders' Fiduciary Responsibilities"); Nigel Furey, Lecturer in Law at the University of Bristol (England) ("The Statutory Protection of Minority Shareholders in the United Kingdom"); Donald F. Clifford, Jr., Aubrey L. Brooks, Professor of Law at the University of North Carolina ("Close Corporation Shareholder Reasonable Expectations: The Larger Context"); and Lewis D. Solomon, Professor of Law, The George Washington University National Law Center, and Janet Stern Solomon, Associate Professor of Business, Towson State University ("Using Alternative Dispute Resolution Techniques to Settle Conflicts Among Shareholder's of Closely Held Corporations").

Professor Ricci's panel included James Cox, Professor of Law at Duke University, and John Englar, General Counsel for Burlington Industries.

MORE FACULTY NEWS Professor Maureen Lally-Green has accepted a tenure-track position with the Law School. Tax Moot Court Faculty Advisor, Professor Mark Yochum is directing the McKeesport Little Theater production of "Once Upon A Mattress."

Performances are Friday, Saturday and Sunday, May 1 through ~ay 31. The musical is an adult verSlon of the story of the The Princess and the Pea. For ticket information call 673-1100.

JURIS SQUIBBS

(Continued)

REUNION REMINDER, CLASS OF 1977 A reunion cocktail party has been scheduled to celebrate the 10th anniversary of the Law Class of '77.

The reunion will be held on June 13, 1987 on the patio/concourse of the R.K. Mellon Science Hall located in the center of Duquesne's campus .

For additional information, contact Bill McGarvery at (215) 887-8339, or Arnie Schulberg at (412) 241-7252.

Professor Cynthia Baldwin

PROFESSOR ENDORSED FOR COMMON PLEAS Visiting Professor Cynthia Baldwin has been endorsed by the Allegheny County Bar Association for one of the two vacancies with the Allegheny County Court of Common Pleas. Professor Baldwin, a Duquesne Law School alum, currently teaches consumer law, criminal law, and legal research and writing at the Law School. Stressing commitment, competence, and conscience, Professor Baldwin's campaign will mirror these virtues and talents which she brought to the classroom. The editors of JURIS wish her and Terry O'Brien, L'75, well in their campaigns for Judge in the Court of Common Pleas.

O'Brien is also a Duquesne undergrad ('72).

GUATEMALAN LAW PROFESSOR VISITS DUQUESNE UNIVERSITY Dr. Leonel Ponciano Leon, Professor of Law at the University of San Carlos in Guatemala, visited the Law School on February 24 and participated in a question-and-answer session with Professor Robert Barker's Comparative Law class.

Dr. Ponciano, a former Mayor of Guatemala City, was in the United States in connection with the celebration of the Bicentennial of the United States Constitution.

Volume 26 Law Review Editors Chosen Editor-in-Chief Mary-Jo Perella Executive Editor Mary T. DePasquale Production Editor Joe Schaper Managing Editor Donn Butkovic Executive Article Editor Donna Long Associate Article Editor Dan Garfold Executive Comment Editor Ed Long Associate Comment Editor Chet Karas Executive Recent Decisions Editor Jana Phillips Associate Recent Decisions Editors Linda Amoroso, Joanna Budde, A.M. Gulas, John Orsini, Karen Sirianni

Congratulations To These Intra-School Moot Court Competition Winners Tax Alexander Bicket (3E) William Colleran (3E) John Orsini (3E) General Appellate Donna Long (2D) Rita Hathaway (2D) Mary Theresa DePasquale (2D) Karen Sirianni (2D) Constitutional Criminal Procedure Barbara Ochs (3E) Rita Valdrini (3E) Bruce Campbell (3E) Randy Hareza (3E)

Judge Mansmann

JUDGE CAROL LOS MANSMANN NAMED DISTINGUISHED DUQUESNE ALUM The Honorable Carol Los Mansmann, Judge for the Third Circuit Court of Appeals, has been named 1987 recipient of Duquesne University's College of Liberal Arts and Sciences Distinguished Alumna Award. Judge Mansmann is a 1964 B.A. graduate of the College, and a 1967 graduate of the Law School. A member of Duquesne University's Century Club of Distinguished Alumni, she was formerly an associate professor at the Law School; an associate with the law firm of McVerry Baxter and Mansmann; and chief of the appellate division of the Allegheny County District Attorney's Office before becoming a United States District Judge in 1982.

Judge Mansmann lives in Sewickley, Pa. with her husband, attorney J. Jerome Mansmann and their four children.

CORRECTIONS AMPLIFICATIONS The editors would like to point out an error which appeared in a story in Issue 2 written by Professor Liu. To the section of his article, "Collection Quality," we inadvertently added the following untitled section concerning the professional staff.

We apologize to Professor Liu and his staff for our oversight.

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Governing Pennsylvania

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Marked By His Candor

£dzt?r.s Not~: .The e~ztors gratefully acknowledge the efforts of Dennis Scarpiniti obtammg thzs mterozew. '

by TIMOTHY UHRICH, L'88

T

he Casey administration took office this past January 21, and '- the new lieutenant governor took time from his pre-inauguration agenda to visit Duquesne's Law School and talk with Juris about his duties as lieutenant governor, his role in the Casey administration, and most importantly, his own expectations and visions of the future for Pennsylvania.

"While the lieutenant governor has certain duties under the constitution of the Commonwealth, it's important to remember that the office is only as powerful as the governor allows it to be," Singel contends. "We have seen some lieutenant governors put out to pasture for an entire administration, and we have seen some serve as a strong right arm for the administration .

"The governor and I have been plotting some strategy and economic development initiatives that bode well for me being an active partner. Many expect to serve that way, but few become confidants and a first-team player.

"What's important is that Governor Casey has a high degree of respect for what I have done as a senator, so there is reason to believe that I will be in the inner circle. So far, the cabinet selections have been most positive . They are good for the administration and the Commonwealth, and were not necessarily made on political whim."

Constitutionally, the lieutenant governor serves in two capacities.

First, he is the chair of the state's Board of Pardons, which Singel views as an interesting assignment.

"Of course, it depends upon the philosophy of the man in the governor's seat," Singel pOints out, noting that the governor has final action on the Board's recommendations. "Recently, there has been a

decided decrease in the number of times the board has met, and a dramatic falloff in the number of times ~he governo.r has granted clemency In the last eIght years. It's an interesting study of the governor's philosophy, whether it be liberal, conservative, or just plain 'get-tough .'

It's quite reflective of the administration's mindset."

The second mandated role is President of the State Senate, and as a six-year veteran, Singel hopes to become more than a figurehead

(4£),

m

at the front of the Senate chamber.

"I have a unique perspective of the legislature, and I can serve as a positive salesman for the CaseyS.in~e~ program. I hope to play a SIgnifIcant role in spreading the Casey message in the legislature."

It was in the state legislative process that Singel received his political indoctrination. Before graduating magna cum laude from Penn State University, he spent several summers working for then the Majority Leader, K. Leroy Irvis, and for the

An Evening for Political Hislory . was a li~t1e more than a year ago when Pennsylvania's Dem~ratlc powerbrokers gathered in the suburbs of

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Hamsburg to hammer-out a statewide ticket that would return control of state government to the democrats after an eight-year hiatus.

Robert P. Casey, the Scranton attorney who seroed the Commonwealth in the 1970s as one of its most distinguished Attorney Generals, was assured of the party's endorsement.

The only remaining task for the Democratic Committee was to ticket Casey's running-mate for lieutenant governor.

As the committee people began filling the Penn Harris Motor Lodge for the spring endorsement meeting, various party leaders tried in vain to convince Edward Rendell, the fonner Philadelphia district attorney and Casey challenger, to accept the post of Casey's lieutenant in a show of unity.

Negotiations failed and other names began to surface.

Hoping to bring the focus of Western Pennsylvanians to the campaign, the names Frank Lucchino, David Sweet, and James Dodaro surfaced as possible contenders.

Virtually unnoticed in the Friday evening fray was a 32-year-old state senator from Johnstown who, six years earlier, had become the youngest member ever elected to the Pennsylvania Senate. He was enjoying a second term in which he was re-elected by a more than 75 percent plurality. As Mark Stephen Singel and a handful of Cambria County supporters pumped hands with relative obscurity in their hospitality room that evening, only they could be sure that Singel would soon become a major player in what he, himself, called the Bob Casey "Vision of Pennsylvania. " The rest is now political history. That endorsement meeting ended without a consensus lieutenant governor candidate, and a few weeks later, Casey tapped Singel as his choice for the second spot and his Western Pennsylvania balance. Singel, with heavy support in the state's west, easily won nomination in the May primary, and last November, helped carry the Casey-Singel ticket into the Pennsylvania Governor's office.

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House Law and Justice Committee.

It was on to Washington in 1975, when he joined the staff of U.5.

Rep. Helen S. Meyner (D-N.J.) as a legislative assistant, rising to the chief of staff position a year later.

When Meyner left office, he assumed the similar post with U.S. Rep . Peter A. Peyser (D-N.Y .), serving until his 1980 election to the state senate.

It is this background that Singel hopes to successfully nurture into his most significant role as lieutenant governor, that of an expeditor of state and federal relations. Singel maintains that simple improvement of communications between the congressional delegation and the state officials will result in a cooperative legislative agenda that will best benefit Pennsylvania.

"For too long, everyone has been on their own. It's time we make sure everyone is working together, especially for the creation of jobs," he said. "We might then be able to effect some consensus on how the demise of revenue sharing is going to effect us. Why are we sitting back and watching this tax code go through without the appropriate amendments to protect Pennsylvania's interests?

"We must ask our federal officials: Are you pulling on the same oar as the governor and his programs? If not, what can we do to bring about this kind of cooperation and communication?"

While Singel believes that we are finally reaching the downside of the Reagan cutbacks to the state and local governments, he still maintains that we are suffering because of them. "We estimated, through a Senate study, that Pennsylvania has lost $1 billion of direct and indirect federal assistance. Now, it's all well and good to talk about deficit reductions and balancing the budget on a federal level, but we must realize that the price you pay is a reduction in services. These reductions are a

crushing blow to the industrial states of the Northeast, especially when we have come to rely heavily upon federal assistance."

The worst may be over, however, and Singel attributes that to the wind-down of the Reagan presidency and the false notion that supply-side economics is beneficial and helpful to the industrial states.

"I think people have realized that Reagan's economic policies were a charade and quite detrimental to the areas that needed it. Because we did not receive these funds, we

Lt. Governor Mark S. SiDgel

were left to drift and find our own way with state funds," Singel said.

"The problem mounted when Governor Dick Thornburgh refused to use state funds to make-up the cutbacks from the federal government~ He chose to 'out-Reagan: Reagan, and passed that terrible burden on to the local governments.

It was completely irresponsible to pass-on that burden without passing-on the dollars to do so," he adds. "With the phase-out of the Reagan revolution, rationality will

return to economic planning, and there will be less hostility between the states and the federal government."

Still, Singel believes that Pennsylvania will have to get tough at times with the federal government when the interests of Pennsylvania are threatened. "We will not toe the line with federal policies that may be in direct opposition to our interests," he said. "We are willing to make that break it necessary, and challenge the decisions on the federallevel.

"We are not afraid to establish programs and directions to replace lost federal funds. We do not worship at the altar of supply-side economics, and we intend to set our own agenda.

Any rational student of government will understand that the only way to develop surpluses is to cut services. Some sectors have been ignored or underfunded for the past several years and we are now faced with that dilemma."

While Casey and Singel can both be viewed as moderate Democrats, the lieutenant governor feels there are certain issues about which they can be both passionate and progressive. "We intend to be more compassionate than the Thornburgh administration. It is absolutely sickening that we have 5,000 homeless people wandering the streets of Philadelphia while the former governor has taken bows for generating a surplus.

If Singe 1carries any forte from his Senate days, it is economic development. For six years, he was minority chairman of the Senate Committee on Community and Economic Development, and is the founder and former co-chairman of the Commonwealth Coal Caucus. He was also a member of the Senate Education Committee; the Senate Finance Committee; the Senate Committee on Local Government; the Pennsylvania Public Television Network (Continued on page 28)

Editor's note . ..

The Author is Mid-Atlantic Regional Director, For Amnesty International oriure chambers, secret detention centers and electric chairs are the property of governments. Governments employ the people who operate the equipment and who perfonn the work at these locations. In many contexts, an an:zy of professi?~a.ls can be co-opted or pressured into legitimIzing and sanztlzlng acts of inhumanity carried out in the name of the government or in the professed national interest.

It is abundantly clear that when a government wishes to move against an individual, or a designated group, it has the resources to detain, to inflict pain and take away life. So many governments which come to power heralding ideals around which their nations might fruitfully gather end in a posture of 'attacking problems' rather than nurturing solutions or

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seeding positive chan$e in their societies. In too many instances people of conSCIence, opponents of the government, disempowered groups or individuals become convenient scapegoats for a government's inability to find creative solutions.

The champion of the people turns upon its own in order to legitimize itself. It wrests power from the people in order to maintain its own power and, ultimately, becomes a yoke of oppression. That which was to serve the people, the people now have to serve or otherwise brutally suffer the consequences: over 45 countries in the world executed their citizens last year; over one-th~rd of the world's governments systematIcally torture, and In many countries, people of conscience are silenced beh ind prison walls.

Amnesty International - 25 years of protecting human rights

THE CONSTITUTION AND HUMAN RIGHTS

by JAMES O'DEE

ince we are celebrating the bicentennial of the Constitution of the United States of America, we are well served to do so with a view toward understanding its relationship to the promotion and development of human rights. It is therefore useful to look at 1787 as the time when the new government of the day came to power heralding these ideals to which the people of the United States can gather around. Clearly, the document was not intended to be a government manifesto. Rather, it was to provide a model for forming federal government. But, in as much as it was written by people who were in power, it functions well to reflect their vision of society and the powers and limitations they perceived the government to have. The Preamble to the Constitution presents the rationale for securing the new order much in the same way as a new government would promote its own rationale for coming to power. For the new order to take over, the enticement and promise has to be great - as in, "to form a more perfect Union, establish Justice, insome domestic Tranquility, provide for the common defense, promote the general welfare and secure the Blessings of Liberty."

But, though the promise was great, in 1787 the Constitution was not an enlightened document if you were a black, a woman or native American Indian: full human rights were for white men. Fortunately, these white men, though not adverse to slavery, did not entirely believe in their own infallibility and insured that the legal framework of their day could be amended by the

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generations to come. The Constitution as amended thus became a living and more vital reflection of our growth in consciousness as a people. 'We the people of the United States' have not fully realized our rights and status as blacks, WOmen or native American Indians but we are on the way. The truth, however, is clear that we, the people, are the real agents of transformation, and a document such as the Constitution only reflects the spirit, courage and conscience that has preceded it.

The Constitution of 1787 was not only flawed because it reflected the limited consciousness of those who wrote it but because its vision was less than the vision which informed the Declaration of Independence before it. A recent poll conducted by the Hearst Corporation to mark the Constitution's bicentenial indicates that Americans are very muddled about its content and purpose. Not only were the people polled unaware that the Bill of Rights constitutes the first 10 amendments to the Constitution, but 75 percent also understood that it guarantees them certain rights which it does not - such as the right to a free education through high school. The reason for this confusion is, possibly, because Americans believe that the spirit of the Declaration of Independence is contained in the Constitution. If anything, the Constitutional Convention of '87 managed to put in check the spiritual ardor stirred up by jefferson's visionary words. While jefferson's explicit condemnation of slavery was striken from the original draft, the final declaration pOints to the highest of human ideals -

the proposition that all men, being created equal, are endowed with "certain unalienable Rights . . . Life, Liberty and the pursuit of Happiness." The' fathers' of the Constitution, however, were dedicated to the proposition that government should rest upon the dominion of property. Thus, securing domestic tranquility is not equated with pursuing happiness, but in making sure that (Art. IV. Sec. 2) fugitive slaves, a dimension of one's property, be returned to their owners.

As noted, the expansive inclusivity of the declaration had its wings clipped in the Constitution of '87.

However, in successive amendments the sense of community was expanded beyond the propertied white men to include, almost 80 years later, "all persons born or naturalized in the United States." The Fourth Amendment also requires "the equal protection of the laws" for all persons.

Amnesty International and other justice-oriented groups have indicated that poor people and minorities

"The truth, however, is clear that we, the people, are the real agents of transformation - the Constitution only reflects the spirit, courage and conscience that preceded it."

have not received "the equal protection of laws" when it comes to capital cases - poverty can exclude a person from the full advantages of the Constitution. Those who ar~ the disemp~wered members of society have paid the pnce for the failure of successive U.S. governments to find a solution to the social disease of 20,000 homicides per annum. Last year 18 people were executed but their deaths will not deter the 15-20,000 people who will murder this year. Those who are executed are overwhelmingly black people and poor people. If you can afford the best lawyer you will generally escape execution. The Constitution fails for them as it does for the 20,000 murder victims: There can be no 'general welfare' or' domestic tranquility' while these conditions persist. In restoring our vision of human rights so that all members of society truly have equal access to justice we may have to carry the language and spirit of the Declaration of Independence into the Preamble of the Constitution.

The declaration has found its great themes born aloft in the Universal Declaration of Human Rights, and humanity might rest easy and safe if that document were truly to be enacted as a guaranteed constitution for the global community. It must surely be true that

human rights are inspired by both a vision of what it is to be human and by the courage and conscience of those who can live out that vision and stand up for it at critical junctures. And if that vision of human rights is really contained in the Preamble to the Constitution then this: "We the people of the United States, in order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common Defense, promote the general Welfare, and secure the blessings of Liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.

"Poverty can exclude a person from the full advantages of the Constitution. "

might read like this: "We the people of the world, who live in the United States establish this Constitution so as to develop a more profound unity amongst us, bring about justice for each and every person, enjoy peace in our neighborhoods, promote equal opportunities for all, protect ourselves from being oppressed by others and enjoy for ourselves and our families the endless possibilities of a society that celebrates freedom."

There is, perhaps, no better way to celebrate the bicentenial of the Constitution than to breathe new life and meaning into words written 200 years ago. We are, of necessity, going to have a more inclusive vision of human rights since our consciousness has evolved, we hope, since that time. But, do we have the courage to realize that vision?

____________________ nnus

IITwo Hundred Years of

Constitutionalism in the Americas"

by ROBERT S. BARKER Professor of Law

Duquesne Univenity

he title of this article did not originate in the United States.

It was coined in Quito, Ecuador, in October, 1986, when the governing council of the InterAmerican Bar Association decided that the central theme of the Association's 1987 Conference (to be held in Buenos Aires in May) will be

T

Doscientos Anos de Constitucionalismo en las Americas. Although the theme refers to the bicentennial of the United States Constitution, the purpose is not merely to honor a single country. Rather, the theme has been chosen in recognition of the fact that the United States Constitution has had such a profound effect throughout the Western Hemisphere that it has become part of the common patrimony of all the Americas .

Even the most casual reading of a Latin American constitution will reveal that much has been taken from the document drafted in Philadelphia in 1787. A good example is the Constitution of Argentina, which begins: We, the representatives of the people of the Argentine Nation, meeting in General Constituent Congress by the will and election of the provinces, . . . in order to establish a national union, insure justice, consolidate domestic peace, provide for the common defense, promote the general welfare, and secure the benefits of liberty for ourselves, our posterity, and all people of the world who wish to live on Argentine soil; invoking the protection of God, source of all reason and justice; do ordain, decree, and establish this Constitution for the Argentine nation.

Almost every Latin American constitution contains provisions which are strikingly similar to provisions of the United States Constitution.

The similarities are important not so

much because they are numerous, as because they are fundamental.

Like the United States Constitution, Latin American constitutions divide national governmental power among three branches. The European, or parliamentary, model, in which the executive is dependent upon a legislative majority, was rejected in favor of the United States, or presidential, model. Latin American constitutions guarantee numerous rights, privileges, and immunities, often in the language of our Bill of Rights, and terms such as due process, equal protection, and full faith and credit are part of Latin America's constitutional law vocabulary. Like the United States Constitution, Latin American constitutions are rigid and supreme; that is, they cannot be changed by ordinary legislative majorities, and their provisions are the highest law of the land, prevailing over any contradictory governmental action .

If Latin America's use of the United States Constitution had been just a matter of copying, or cu tting-and-pasting, the results would have been juridically uninteresting and practically unsuccessful, reflecting poorly on all concerned . The United States Constitution has had a significant and worthwhile influence on Latin America precisely because Latin American jurists have known when to use the United States Constitution, when to draw upon their Continental heritage, and when to rely upon their own national traditions. In proceeding selectively, they have paid the United States Constitution the highest possible compliment ~y asserting that its principles are valId in, and adaptable to, countries with

different legal traditions and national experiences. To appreciate the contribution which the United States Constitution has made to Latin American jurisprudence, and the contribution which Latin American jurists have made to United States constitutional ideas, it is helpful to look at the reasons why the United States Constitution was attractive to Latin Americans, the problems created by their adoption of provisions derived from the United States Constitution, and the methods developed by Latin American, republics to adapt United

States constitutional principles to their own situations.

In the first quarter of the Nineteenth Century, when most of Latin America won its independence, the United States was a young but established country which, like the new nations of Latin America, had endured a long period of colonial rule under European monarchy and had fought a successful war against its mother country in the name of liberty. Many Latin American revolutionary leaders acknowledged that the constitutional example of the United States was a major source of inspiration to them. 1

The affinity created by similar colonial and revolutionary experiences was reinforced by philosophical attitudes prevalent when the Latin American republics were writing their constitutions. Those who led the Wars of Independence in Latin America, and who drafted its constitutions, had been raised in the tradition of the Enlightenment, with its emphasis on reason and its concomitant belief that human beings, by the use of reason, could construct political institutions so in harmony with the natural laws of the universe that the inevitable result would be the ideal civil socie-

ty. For those in the early Nineteenth Century who thought in such terms, the young but successful Constitution of the United States seemed to be the ultimate application of human reason to the task of civil government. 2 Later in the Nineteenth Century, when the Argentines were writing their constitution, the Mexicans were re-writing theirs, and the Brazilians were replacing their imperial constitution with a republican one, the Positivist philosophy of Auguste Comte was exerting tremendous influence on Latin American thought.

Comtean Positivism was a sociological science based on the premise that history was progressing toward a thoroughly rational and humane stage. Positivists believed that this process would be both manifested in and accellerated by the adoption and use of the most "advanced" or "progressive" models in government, commerce, and other fields of human activity . In the late Nineteenth Century, when Positivism was in fashion in much of Latin America, scientific indicators pointed to the United States as the most progressive of societies. It was a short step to the conclusion, which many Latin American Positivists made, that the United States Constitution was the most advanced model for orderly, progressive government. 3 The Enlightenment and Positivism appealed to a numerically small but politically influential group in Latin America - urban intellectuals and merchants with close ties to freemasonry and only tenuous connections with the Roman Catholic tradition of their own countries.

Practicing Catholics needed no new philosophies to explain the nature of man, government or society, but they did need assurance that ideas associated with the Protestant and deistic North were not, at bottom, hostile to their Faith. The assurance came in the writings of the French nobleman Alexis de TocqueviIle, whose classic study of United States society and politics, Democracy in America, was read widely by Latin Americans of all persuasions, and was an important source of their understanding of United States institutions. De TocqueviIle was a practicing Catholic. He was also a constitutionalist whose evaluation

of the democratic experience of the United States, while not uncritical, was decidedly favorable. He wrote at length about the relationship between religion and democracy, and he concluded that the constitutional system of the United States was not only compatible with, but indeed congenial to, religion in general and Catholicism in particular. Although the definitive historical research has yet to be done, it is reasonable to suggest that the writings of de TocqueviIle were instrumental in disposing Latin American Catholics to view the United States Constitution in a favorable light.4 If historical experience and philosophical inclination made the United States Constitution attractive to Latin Americans, those same forces made the Civil Law tradition of the European continent irresistible. For three centuries the American colonies of Spain and Portugal had lived under Civil Law systems.

At the very time that those colonies were fighting to win their independence, the Civil Law was being given new vitality in France. The five Napoleonic codes promulgated between 1804 and 1811 were hailed as modern, rational, and progressive .s Thus, the Civil Law of the European Continent, Roman in its origin and French in its contemporary manifestation, became the basis of most Latin American law and legal institutions. More important, the Civil Law determined how Latin American lawyers learned, spoke, and thought about law. The result might be visualized as a legal pyramid whose apex (i.e., the constitution) was built largely of materials from the United States, and designed in the style of the English Common Law, but whose base was transported whole from the European Continent. To enthusipsts of the Enlightenment and Positivism, this duality was not seen as a problem, because (so the theory went) the most rational and advanced models would prove to be harmonious, regardless of their diverse origins . However, the harmony proved to be ephemeral.

The first decades of Latin American independence demonstrated to even the most optimistic that constitutions are not self-enforcing .

Almost everywhere in the region, dictators regularly disregarded limi11

tations on their own authority and guarantees of the rights of others. If constitutional government was to be more than an aspiration, ways had to be found to raise and decide constitutional questions and to enforce constitutional guarantees. In this regard, the United States example was of only limited value. Here the Constitution was an extension of the Common Law tradition; constitutional provisions presupposed the existence and operation of Common Law rules and practices. This was demonstrated most poignantly in Marbury v. Madison, 6 in which the Supreme Court made clear that any litigant who believed himself to be injured by governmental conduct contrary to the Constitution could raise the constitutional issue as part of his claim or defense in an ordinary lawsuit before any court having jurisdiction. Thus, any court, state or federal, of general or limited jurisdiction, might declare unconstitutional an act of Congress or of a state legislature, or an action of a federal or state executive. Given the Common Law principle of stare decisis, a decision of the United States Supreme Court would have the practical effect of rendering an unconstitutional statute or action invalid erga omnes.

Such an approach, however, did not fit comfortably into the Civil Law systems of Latin America.

From Roman times through the Eighteenth Century, the Civil Law had little tradition of judicial control over governmental action. Moreover, the French Revolution, with its glorification of legislative power and its hatred of the judges of the ancien regime, endowed the Civil Law with a profound anti-judicial bias, which was manifested in a number of interrelated doctrines: 7 judicial decisions are not a source of law; the judiciary must not interfere with the legislative function; and judges must not decide cases by following the decisions of other judges. For these reasons, mo.st Latin American jurists, educated 10 the legal tradition of post-~ev?l.u­ tionary France, regarded )udIc?al review as judicial interference wIth legislative prerogatives, and saw stare decisis as a device which made court decisions a source of law.

The problem is forcefully illustrated in Mexican history. Article

133 of the Mexican Constitution establishes constitutional supremacy in language almost identical to that found in the Supremacy Clause of the United States Constitution.

The Mexican version reads: This Constitution, the laws of the Congress of the Union that emanate therefrom, and all treaties that have been or shall be made in accordance herewith . . . shall be the supreme law of the Union. The judges of each state shall comply with the said Constitution, laws, and treaties, ... anything in the constitutions or laws of the states notwithstanding.

In Marbury v. Madison, the United States Supreme Court reasoned that the supremacy clause of the United States Constitution made it not only permissible, but necessary,

liThe United States Constitution . . . has become part of the common patrimony of all the Americas."

for every court in the country to declare a statute unconstitutional whenever, in the course of any suit, a conflict arises between a statute and the federal constitution. One might expect that article 133 of Mexico's Constitution would have led to a similar exercise of judicial review by every court, federal and state, in the country. Although arguments have been made to that effect, the rule in Mexico is that article 133 does not confer upon the courts any general power of judicial review.

One contemporary Mexican jurist has described the second sentence of article 133 as "obscure and incongruous, ... out of place in our system."s Given th.e fact that. Mexico's legal system IS rooted 10 the Civil Law, this conclusion is not surprising. .

To many it seemed that the Lat10 American republics were in a constitutional dilemma from which they could extricate themselves only

by either foregoing the enforcement of constitutional guarantees or undermining the Civil Law foundations of their legal systems. But the dilemma did not cause the Latin Americans to abandon their experiment with the United States Constitution, nor did it lead them to repudiate their Civil Law heritage.

Mexico solved the dilemma by creating a new and distinctively Mexican form of action called the amparo, which literally means "protection." Amparo is a federal proceeding which may be brought by anyone who believes that his constitutional rights are being violated by a public official, even where the official is acting within the scope of authority conferred on him by statute or regulation. If the judge, after hearing, determines that a constitutional right of the petitioner is being violated, the judge orders the official, or his superiors, to cease the violation and to take such steps as may be necessary to restore the petitioner to the full enjoyment of the right in question. Amparo combines the principles of a rigid constitution and judicial review, derived from the United States, with the limitations on judicial power which are characteristic of the Civil Law. This combination, or accommodation, is made by what is called the "Otero Formula," for Mariano Otero, the lawyer who in 1847 drafted the constitutional amendment which both guaranteed and defined amparo. It reads: The federal courts shall protect any inhabitant of the Republic in the exercise and preservation of those rights granted to him by this Constitution and by laws enacted pursuant hereto, against attacks by the Legislative and Executive powers of the federal or state governments, limiting themselves to granting protection in the specific case in litigation, making no general declaration concerning the statute or re§ulation that motivated the violation.

Mexico's present constitu tion guarantees and limits amparo in similar terms. 10 Thus, amparo enables courts to enforce the constitution by protecting individual righ ts in particular cases w ~ile pr~­ venting the courts from us10g thIS power to make law for the entire nation. Amparo is today the most important procedural device in the Mexican system, and it has served as a model for many other Latin American countries. 11

The Religious Impulse Tocqueville had not been in America more than a month when he observed, "Never have I been so conscious of the influence of religion on the morals and the social and political state of a people."

Tocque'lJille greatly admired the mOTal influence of tbe socially active sects like tbe Quakers (above). Americans, be tbougbt, bad little taste for symbols, ritual, and complicated tbeology, preferring to bave tbeir religion "bared to tbe ligbt of day."

The Mexican amparo is but one of several Latin American approaches to constitutional adjudication. The Argentine approach has been, from the Civil Law point of view, more radical. After the overthrow of the dictator Rosas in 1852, a Constituent Congress was convened in the city of Santa Fe. The delegates were strongly influenced by the writings of Juan Bautista Alberdi, a Comtean Positivist and admirer of the United States Constitution . I2 The Constitution produced by the Congress contained so many similarities to its North American counterpart that Argentine statesmen seriously debated whether their country had not also, by implication, adopted the constitutional jurisprudence of the United States Supreme Court.13 Strictly speaking, the answer is "no," but the fact that the question was asked and argued demonstrates the influence of United States Constitution in Argentina. By the turn of the century, Argentine courts were exerciSing judicial review according to a rationale reminiscent of Marbury v. Madison, and had recognized a rule of precedent not very different from that of Common Law countries .14 Two present-day Argentine jurists explain the role of

judicial decisions in their country this way:

. . . the decision of the judges may come to have binding force similar to that of a statute ... It occurs when a decision is made in plenary session; that is, when a judgment is rendered at a meeting of all of the judges who are members of a particular tribunal . . . Such a decision is as binding as a statute . . . In this way a judicial dicision clearly becomes a formal source of law. IS

One Common Law institution which has fit easily into the constitutional systems of Latin America is the writ of habeas corpus. The first Latin American country to adopt the writ was Brazil, which at the time (1832) was influenced more by the example of the British constitutional monarchy than by any American republic. However, in most other Latin American nations, including Mexico, the attraction of habeas corpus was due primarily to the constitutional experience of the United States . (The Mexican amparo was patterned in large part after habeas corpus, but because amparo protects the full range of constitu-

tiona I guarantees, Mexico did not - and had no need to - adopt habeas corpus.) However, since habeas corpus protects only those rights which involve personal liberty, and Civil Law judges have no general injunctive powers, there was a need in most Latin American countries for a way to protect those rights not protected by habeas corpus . Most Spanish-American countries have bridged the gap by adopting, by statute or constitutional provision, modified versions of ampara to protect those constitutional rights not associated with personal liberty and, therefore, not protected by habeas corpUS. I6 It is indicative of Argentina's relatively expansive view of judicial power that amparo in that country was adopted by Supreme Court decision. I7 Among the most interesting and successful mergers of diverse jurisprudential traditions has occurred in Costa Rica. Is Like most of its neighbors, Costa Rica has adopted both habeas corpus and amparo. In the tradition of the Civil Law and of the Mexican amparo, the Costa Rican habeas corpus and amparo do not lie against legislative acts. Where official conduct is authorized by statute or regulation, relief will not be granted, even where it appears that the statute or regulation itself might violate the Constitution. For a time Costa Rica, whose constitutions have been influenced strongly

by Argentina's, experimented with diffuse judicial review; that is, every court had the power to delcare legislative acts unconstitutional. However, because Costa Rican law accorded no precedential value to judicial decisions, court judgments concerning the constitutionality of statutes lacked both uniformity and permanence, and the situation was regarded as highly unsatisfactory .

The Costa Rican solution was not to adopt a rule of precedent, but to limit the power of judicial review of legislation to a single court, the Supreme Court, and to a single 1

form of action, the action of unconstitutionality. The action of unconstitutionality may be brought only by a person who is already a party to a lawsuit involving a statute w hose constitutionality he disputes. The litigant files a petition of unconstitutionality in the Supreme Court, identifying the pending lawsuit, the allegedly unconstitu tionality statute, and the constitu tional provision allegedly violated. The Supreme Court thereupon orders the suspension of proceedings in the underlying lawsuit and in all other cases then pending in the country which involve the challenged statute. The petitioner and the Public Ministry then submit briefs, and the parties to the other suspended suits are invited to do so as well. The Supreme Court then decides the matter on the briefs, without oral argument. If twothirds of the members of the Court vote to declare the statute unconstitutional, then that statute may not be applied in any case then pending or thereafter commenced . The erga omnes effect of the Supreme Court decision does not proceed from any theory of binding precedent, but from the express command of article 10 of the Constitution:

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Dispositions of the Legislative Power or of the Executive Power which are contrary to the Constitution shall be abSOlutely null . ..

The Supreme Court, by vote of not less than two-thirds of all its members, has the power to declare the unconstitutionality of dispositions of the Legislative Power and decrees of the Executive Power.

There are many more examples of ingenious procedures and institutions for constitutional adjudication in Latin America. The Brazilian approach, for instance, is as rich and distinctive as any mentioned above. 19 Each of these diverse institutions and procedures reflects the history and culture of the particular country which has created it; but while their differences are important, their similarities are even more significant. They all involve the measured application of Common Law ideas to Civil Law systems, in ways consistent with the unique needs and traditions of each nation.

They were all inspired by the desire to protect constitutional rights, and they were all assisted, in no small way, by the example of the United States Constitution.

HOLD HESE

in Latin America there is a residual spirit of Constitutionalism which, even in the worst of times, causes lawyers and laymen to think of the constitutional order as the normal and proper state of affairs, and the dictatorship of the moment as but an unfortunate exception."

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POST SCRIPT ny discussion of Latin American constitutionalism is likely to meet with the objection that constitutions in that part of the world are suspended and ignored so often that constitutionalism there is merely cosmetic . The answer to this objection is three-fold. To begin with, many Latin American countries have enjoyed long periods of constitutional government. Costa Rica maintains one of the most respected constitutional systems in the world. Governments in Venezuela and Colombia have changed hands in constitutional fashion for nearly thirty years. Mexico's present constitution (which dates from 1917) has proven to be both workable and durable. Argentina enjoyed seven decades of uninterrupted constitutional government in this century and the last, and Chile's current situation is an obvious departure from her long tradition of constitutional democracy. In other words, we tend to forget the successes of constitutionalism because they are not as sensational as its failures.

Second, even during periods of dictatorship, Latin American constitutions retain considerable vitality because of the tenacity of lawyers who continue to assert constitutional principles, and the ingenuity and courage of judges who continue to apply constitutional norms in

A

TRUTHS spite of the suspension and subordination of constitutional guarantees by authoritarian rules.

Finally, and most important, the cynics forget that in Latin America there is a residual spirit of constitutionalism which, even in the worst of times, causes lawyers and laymen to think of the constitutional order as the normal and proper state of affairs, and the dictatorship of the moment as but an unfortunate exception. This spirit is much more than just a desire for constitutional government; it is an awareness that the constitution is at all times the juridical and political point of reference and standard of

judgment, as well as the legal and political goal. This explains the persistent demands for the restoration of the rule of law, and the success of so many Latin American countries in re-establishing democratic constitutionalism in the 1980's.

RSB ditor's Note: Professor Barker teaches Constitutional Law, Comparative Law, and Civil Procedure at the Law School. His experience in Latin America began as a U.S. Peace Corps Volunteer-lawyer working in the Urban Community Development Program of the Republic of Panama.

Since then, he has participated in international legal conferences in Mexico and Brazil, done legal research in Costa Rica, and lectured in Mexico and Costa Rica. His article, "Constitutional Adjudication in Costa Rica" was recently published in the University of Miami Inter-American Law Review. Professor Barker has been Chairman of the Constitutional Law Committee of the Inter-American Bar Association since 1984, and is Vice President of Western Pennsylvania Partners of the Americas (the local affiliate of the private, nonprofit organization which promotes economic, social and cultural development through voluntary cooperative effort between citizens of the United States and citizens of partner states in Latin America). Professor Barker earned his B.A., M.A., and J.D. degrees at Duquesne University.

Endnotes 1. See, e.g., Robertson, Rise of the SpanishAmerican Republics.

2. Concerning the influence of Enlightenment thought on Latin American leaders of that era, see Griffin, The Elightenment and Latin American Independence, in Whitaker, Latin America and the Enlightenment 119-143 (2d ed. 1961) .

3. Concerning the influence of Positivist thought on Latin American, see Davis, Latin American Thought: A Historical Introduction 97-134 .

4. See de Tocqueville, Democracy in America (H . Reeve trans. 1899), Vol. I, pp. 304-320; Vol. II, pp. 21-31.

5. The five Napoleonic codes and the years of their promulgation are: the Civil Code (1804), the Code of Civil Procedure (1807), the Commercial Code (1808), the Penal Code (1811), and the Code of Criminal Procedure (1811).

6. 5 U.S. (1 Cranch) 137, 2 L.Ed. 60 (1803) .

7. For an excellent discussion of the influence of the French Revolution on Civil Law ideas about the role of the judiciary, see Dawson, The Oracles of the Law 263-373.

8. Dr. Felipe Tena Ramitez, as quoted in Padilla, Sinbpsis de Amparo 58.

9. Act of Reforms of 1847, art. 25, amending the Constitution of 1824.

10. Mexico' s present Constitution was promulgated in 1917. The Otero Formula is embodied in article 107, which reads, in pertinent part : The judgment (in amparo) shall always be such that it affects only private individuals, being limited to affording them redress and protection in the particular case to which the complaint refers, without making any general declaration as to the law or act on which the complaint is based.

11 . Concerning the Mexican amparo, see

Fix-Zamudio, A Brief Introduction to the Mexican Writ of Amparo, 9 Calif. W. Int' l L.J. 306 (1979) .

12. Davis, supra ., at 74-75.

13. See the discussion in Linares Quintana, Comparison of the Constitutional Basis of the Unit ed States and Argentine Political Systems, 97 U. Pa . L. Rev. 641 (1948-49).

14. See Quiroga Lavie, Derecho Constitucional 839-846.

15. Torres-Lacroze and Martin, Manual de Introduccibn al Derecho 337 (4th ed. 1983).

16. Concerning the use of amparo throughout Latin America, see Rosenn, Judicial Review in Latin America, 35 Ohio St. L.J . 785, 7%-804 (1974) .

17. Amparo was established by a 4-1 decision of the Argentine Supreme Court in Siri, 239 Fallos 459, 1958-11 J.A. 478, 89 La Ley 532 (1957), and has been defined in a series of subsequent cases, the most important of which is Samuel Kat, S.R.L. , 241 Fallos 291, 1858-IV J.A. 227, 92 La Ley 626 (1958). Since 1966 amparo has been regulated to some extent by statute .

18. Concerning Costa Rican constitutional law and procedure, see Gutierrez (ed.), Derecho Constitucional Costarricense ; Hernandez, EI Control de la Constitucionalidad de las Leyes; and Herahdez, Las Libertades Pl<blicas en Costa Rica.

19. The best English-language study of Brazilian constitutional adjudication is found in Karst and Rosenn, Law and Development in Latin America 98-124.

20. An interesting analysis of this process, from a Latin American perspective, is found in Fix-Zamudio, "Influencia del Derecho Angloamericano en la Proteccibn Procesal de los Derechos Humanos en America Latina," in Com mager, et aI. , Festschrift fur Karl Lowenstein 485 (1971) .

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Why Celebrate the Constitution Today?

by A. E. DICK HOWARD

e Americans have a hagiographic instinct, a reverential approach to our Constitution. We celebrate, as we should, the founders' accomplishment. But in doing so we tend to conceive the Constitution as springing from the creative imagination of those framers as if from the head of Zeus .

A moment's reflection will dispel that kind of mythmaking. The Constitution, great achievement that it was, owes a great deal to hundreds of years of Anglo-American constitutional history, indeed to western thought in general. Let me ask you to think of the Constitution as an hourglass, the upper half receiving the distillation of an extraordinary amount of thoughtful, often turbulent experience in constitutionalism.

There are at least three sources from which our Constitution is drawn.

One of these is the British constitution. By "British constitution" you understand that I do not mean something that exists as a single piece of paper; it is all those documents, precepts, conventions, customs, and practices that, taken together, may be understood to comprise the British constitution.

Among those British precedents is, first of all, the thirteenth century Magna Carta. Then we should look at the English experience in the seventeenth century. At the same time that American colonists were planting settlements up and down the eastern seaboard, the English were undergoing a thorough testing of constitutional principles in the mother country. Beginning with the struggles between the king and parliament that gave rise to the Petition of Rights, the unrest continued through the civil war in the 1640s. The struggles culminated in the socalled Glorious or Bloodless Revolution, which gave rise to the English Bill of Rights, the Act of Settlement, and the Habeas Corpus Act. By the turn of the eighteenth century, the English had assembled what they often call their Liberty Documents. Those documents together make up the bedrock of the British constitution. The experiences of seventeenthcentury England coincide precisely with colonial settlement on this continent.

While that experience was unfolding on the other side of the Atlantic, there were, of course, important events here as well. We come then to the second source of the Constitution, the colonial experience. Each of the original colonies had a charter - not a constitution by name, but a piece of paper that purported to set out the fundamental terms by which that colony would be governed. In each charter one finds language assuring the colonists that they will enjoy the "privileges, franchises, and immunities" of English law, as if they had continued to live in England. The colonists who emigrated from Madrid or from Lisbson were not given like guarantees in the New World.

The proclamations in the charters may simply have been rhetoric to those who drafted them, but the colonists understood them to have substantive meaning.

They took the guarantees of the rights of Englishmen to be part of their patrimony . If one reads the pamphlets and resolutions that appeared in great numbers in the 1760s and 1770s, one finds over and over again the same theme being struck: that the colonists enjoyed in America as late as the 1770s precisely those guarantees written into their charters a century and a half before the American Revolution.

There is a remarkable consensus in the tracts of the pre-Revolutionary period. The New England tracts and pamphlets may lean somewhat more to the natural-law side, and the Southern tracts may lean a bit more to the legalistic side, Southern lawyers often having been trained in the Inns of Court in London. But there was a consensus on underlying principles. In fact, this eclectic

mix of legalism and natural law became then and remains today, one of the hallmarks of America'n constitutional thinking.

The third sour~e of American constitutional thought that I might mention is political theory. Those who framed and interpreted the Constitution were well read in the works of the Enlightenment, in such works as the treaties of John Locke. When James Madison finished his baccalaureate studies at Princeton he stayed on about six months to study under John Witherspoon, Princeton's president. Witherspoon had recently arrived at Princeton from Edinburgh, which was the seat of the Scottish Enlightenment. I think it fair to say that much of Madison's thinking, much of his approach to constitutional law, was framed by Scottish Enlightenment assumptions.

Consider, then the hourglass metaphor. All of this experience - in England, in the colonies, in political theory - comes together, and in the intense, fevered period between 1776 and 1787 one sees the distillation.

Once again, do not suppose that the process of constitution-making began in Philadelphia. Each of the thirteen states had already adopted a state constitution, beginning with Virginia in 1776. Each had its own constitution and bill or declaration of rights. By the time the framers arrived in Philadelphia, there was a great body of American experience to draw upon. (Of course, there was also a great deal of debate among Americans about whether those early state constitutions were working well or not.)

This editorial cartoon was published in 1937 in the New York Mirror. The caption TeiUl, "Don't Dim That Light. "

A. E. DICK HOWARD ................................... .

Professor Howard

A. E. Dick Howard is the White Burkett Miller Professor of Law and Public Affairs at the University of Virginia. Born and raised in Richmond, Virgina, he is a graduate of the University of Richmond and received his law degree from the University of Virginia. He was a Rhodes Scholar at Oxford University, where he read philosophy, politics, and economics.

After graduating from law school, Professor Howard was a law clerk to Mr. Justice Hugo L. Black of the Supreme Court of the United States. He has practiced law in Washington, D.C., and since 1964 has been a member of the Law faculty at the University of Virginia.

Active in public affairs, Professor Howard was executive director of the commission that wrote Virginia's new Constitution and directed the successful referendum campaign for ratification of that constitution. He has been counsel to the General Assembly of Virginia and a consultant to state and federal bodies, including the United States Senate Judiciary Committee. In January 1982 he was named as Counselor to the Governor of Virginia, and he chairs Virginia's Commission on the bicentennial of the United States Constitution.

Professor Howard has been twice a fellow of the Woodrow Wilson International Center for Scholars, in Washington, D.C. His recognitions have included his recent election as chairman of the Virginia Academy of Laureates and his having been named, in 1981, as recipient of the University of Virginia's Distinguished Professor Award for excellence in teaching.

James Madison University, the University of Richmond, and Campbell University have conferred upon him the honorary degree of Doctor of Laws.

An authority in constitutional law, Professor Howard is the author of a number of books, articles, and monographs. These include The Road from Runnymede: Magna Carta and Constitutionalism in America and Commentaries on the Constitution of Virginia, which won a Phi Beta Kappa prize.

Philadelphia is the neck of the hourglass. Where we stand now, two hundred years later, is past the neck, several generations of Americans having placed their gloss on the American Constitution .

Thomas Jefferson, in a letter he wrote in 1816, called upon each generation to revise the Constitution, to bring it up to date, and to ensure that it responded to modern conditions. Over the past two hundred years a number of American states have followed that precept by periodic revision of their state constitutions . Yet we continue to live under the same federal document that was handed down in 1787. There have been, to be sure, some very important amendments, but the basic outline - the separation of powers, the checks and balances, the federal system - remain as they were.

I might therefore pose the question, "00 we in fact live under the same Constitution?" Consider these successive events before saying, " Yes, there is unquestionably continuity over those two hundred years ." After the first Constitution was adopted, there was the push to adopt a bill of rights, a major event in its own right.

Then one comes to the Marshall Court era, a period of nationalism and judicial review. Then comes the Civil War and Reconstruction, which brought a great cata-

clysmic reordering of the federal system, especially the Fourteenth Amendment. The fourth period arrives in this century with the rise of modern government especially in the years of the New Deal - the welfare state, administrative agencies, and the rest. And finally one comes, in more recent times, to the period of judicial activism that we associate in particular with the Warren Court.

What then is the real hallmark of the American system? Continuity - because overall the document looks much as it did two hundred years ago? Or discontinuity - because so many of the principal functioning aspects of the constitutional system are either implicit in the document or often not even referred to at all?

One of the key developments in this most recent period has been a tendency to enlarge the sphere of constitutional norms . That is, we expect the Constitution to do more things, to cover more ground - in general, to touch more aspects of our lives. This goes hand in glove with the judicial activism of the modern Supreme Court. Philip Kurland once remarked, "If the road to hell is paved with good intentions, then surely the Warren Court must be one of the great road builders of all

19

time." ~n 1968 President Nixon said he was going to do somethmg about that court. If you recall the campaign of 1968, you will remember Nixon's law-and-order rhetoric, accusing the Supreme Court of turning criminals loose in the street. Nixon had the rather unusual opportunity to put four justices on the Supreme Court in about two-and-one-half years. So many vacancies in such a short period of time has been rare in American history .

The country was aquiver with expectations that this was going to be a very different sort of court. You may remember the Herblock cartoon with nine Justices, all of whom looked like Richard Nixon. If you look back on the last fifteen years or so of the so-called Burger Court and compare it with the fifteen or so years of the Warren Court, what is striking is that it simply isn't that different.

My journalist friends on the editorial pages might quarrel with that conclusion. They might say, "But what about criminal justice cases such as those involving search and seizure?" There have been, to be sure, important new directions in some areas. But if judicial activism, if using the Constitution to do new things, is the test, then surely the Court of the last fifteen years is no stranger to activism. Consider the subjects that have surfaced since 1970 in the Supreme Court that did not even concern the Warren Court: abortion, capital punishment, prison reform, and sex discrimination.

You can add to the list. Each of these is a major area of public policy that was hardly raised in the Warren Court's cases but is now commonplace in Supreme Court adjudication.

What we are witnessing, to give it a label, is the constitutionalization of American life, a growing American tendency to discover in the Constitution an answer to problems. Government doesn't function well if the different branches can't agree on the budget, if the administrative apparatus bogs down. But go to a court, tell it that there is something in the due-process or equalprotection clause, and the judge will come up with an answer.

What this highlights - and I hope this is one of the things you will think about during the Constitution's bicentennial - is the essential question: Precisely what is it you think the Constitution is there to do? What do you expect of the Constitution?

In the eighteenth century a constitution, at least in the Anglo-American tradition, was framed largely along the lines of natural rights, leaving most activities to the private sector. In contrast, a typical twentieth-century constitution - that of almost any nation that has come into being since World War II - will include provisions that resemble those of our Bill of Rights (such as free speech and free exercise of religion). But you will also find in these constitutions provisons that I would characterize as positive or affirmative rights. That is to say, they don't keep government at a distance or off your back, but actually lay claims upon it. These are entitlement provisions, service-state provisions, welfarestate provisions. And they will often declare that the citizens of country "x" have rights to such services as education, maternity benefits, and old-age benefits.

J

No~. obviously one must pause before believing that the ~Ihzens of any and all of these countries actually receive all these entitlements. That's an empirical problem. But it is interesting that they are written into their constitutions in the spirit that a constitution is thought to reflect the fundamental aspirations of a society.

One of our bicentennial questions, therefore, ought to be: Though our Constitution is framed in negative terms, has it in two hundred years in fact evolved into a positive or affirmative document? Do we have a constitution that is more like these twentieth-century documents than we might have thought? Certainly, ours is a constitution that has been proven to be an extraordinarily elastic receptacle into which to pour all of our social and political problems - race, criminal justice, abortion, privacy, school prayer, busing: You name it, they are all on the list.

The Constitution has become, in short, a mirror of the American mind. It is almost a litmus test of how intensely people feel about an issue. If you feel intensely enough, chances are you will find yourself talking not simply about a conventional claim or interest, but about a constitutional right, something that the Constitution has to address.

You have all heard the often cynical-sounding statement that the Constitution is what the judges say it is.

I'm not sure how true this is; perhaps that statement should be reformulated to say that the Constitution is what the people ask the judges to say it is. Judges are essentially reactive. They can't decide a case until one comes before them . Somebody has to ask a judge to lay down a rule before there will be constitutional change.

My mentor, perhaps the most important influence on my thinking about the Constitution, was Hugo Black.

Justice Black, one of the great twentieth-century constitutionalists, was a man who came to the U.s . Senate from Alabama with precious little of what passed for formal education in those days, and certainly not what you would expect of a senator or Supreme Court justice today. On coming to the Senate, Black embarked upon a reading program. He set out to read Greek and Roman history, English history and biography, and so forth the classical education he thought he had not gotten. As his law clerk, I found myself constantly being pressed to take home with me copies of Thucydides or Tacitus or Gibbon or Carlyle. I confess that after reading certiorari petitions all day, I wasn't keen to go home and read Thucydides, but what was I to do? The next morning he would ask me, "Wasn't that great stuff? What did you find?" So I read Thucydides.

What Justice Black understood was the place and force of history, of principles, of ideas. Perhaps it is faintly antiquarian to talk about ideas as mattering, but Hugo Black thought they did. He was no party to the debunking exercise that one associates with writers such as Charles Beard. I am grateful that it is once again respectable, whatever may have been the case a few decades ago, to talk about the force and place of ideas. I ran across an essay by Matthew Arnold, the great English essayist of the nineteenth century; he was concerned (this was in 1868) about the imminent danger that England would become a minor nation in European

UNCLE SAM. "Whe-ewll And what will the tew hundredth be?"

This adaption of an 1889 cartoon portrays "Uncle Sam" relllxing after the flurry of centennial constitution cele-

brations had ended. Courtesy: The Smithsonian Institution.

history, for want of what (in his words) "I must still call ideas, for want of perceiving how the world is going and must gO." I invite you, therefore, never to underestimate the force of ideas . We are faced in the twentieth century with the challenges of totalitarian ideologies, of Marxism, and of other powerful and compelling ideas . There is, as well, in some parts of the world, the rise of religious fervor and yet other ideas that govern the minds of men and women. It is sobering for me to suppose that the United States might itself prove ideologically bankrupt, that it might lurch from one instinct to another without the guiding sense of ideas, and that behaviorism, materialism, or other kinds of forces might be allowed to work themselves out and control our destiny.

The Life of Our Great Documents

satisfying the needs of our day? How fares federalism?

Do the states still make any sense? Reading the Supreme Court's opinion in Garcia v. San Antonio Metropolitan Transit Authority, one discovers at the moment a majority of five justices seems to think the states don't make much sense. But I invite you to watch this space .

Five-to-four opinions have a way of being evanescent.

Second: Should we periodically revise the entire Constitution as Jefferson urged and as states have often done with their constitutions? Should we amend the Constitution or call constitutional conventions, as we have been urged to do? Or should we by and large acquiesce in judicial constitutional change as we have often done in the nation's history?

Third : At what point do you want government not to have the power to deal even with a problem that's

"] have cast about for a theme for the bicentennial. Many volumes have been written by people who have thought about constitutional principles. I offer you - and I think it 1.oould be Izard to improve upon - the theme of George Mason's declaration of Rights for Virginia, written in 1776. It says: 'No free government, nor the blessings of liberty, can be preserved to any people, but by ... a frequent recurrence to fundamental principles. ' That, I submit, is ample reason for celebrating the Constitution's birthday. It is the challenge of the bicentennial.

1/

Let me turn, therefore, to the question that has been put to me: "Why celebrate the Constitution today?/I Each of us no doubt has his or her own checklist of questions worth asking.

I want to share with you a short list of ways in which I would use the bicentennial, questions that I hope this bicentennial period will address. First: How is the Constitution working? Do the parts work in a way that is

worth dealing with? This is the flip side of the question of how one deals with protecting individual liberties.

Fourth: Are we succeeding in unleashing the talent of a nation? This is a complicated question. On the one hand, you may read that question to mean unfettered free enterprise, economic prosperity, the pursuit of economic well-being. The Constitution clearly does have economic implications in the due-process and

"Never underestimate the power of ideas." Our constant vigil over liberty. other clauses. At the same time, there is the problem of overcoming obstacles that are placed in the way of individual citizens because of their race, their gender, or their economic circumstances .

Fifth: We could look to the Constitution as a symbol of impartial government and the rule of law. I realize that's the kind of highfalutin' language you hear a lot. But maybe it's talked about a lot because it's worth talking about. I raise the question here to throw light on the following problem. We hear about the consent theory, that people consent to live together in a democracy. This is an amiable fiction. None of us were in Philadelphia .

None of us had a hand in crafting the Constitution . Very few of us have access to power in Congress or the presidency or elsewhere. A small number of people make very important decisions. So the problem of consent theory is how to justify imposing upon the body of citizens laws they have had very little hand in making.

In this respect, the Constitution may create an impartial referent, something that pre-existed and is external to the people who make political decisions.

Sixth: The Constitution may offer a sense of shared values. The larger the country grows, the more heterogeneous its population. Perhaps the Constitution offers common ground for people who are otherwise divided by ideology, race, party, or section of the country.

Seventh : Looking at a particular constitution enlarges our understanding of the uses of constitutionalism.

Once again, the force of ideas. "Isms" usually have an ugly ring to them. But constitutionalism is surely one of the great principles of Western history and theory.

Finally, let us use the Constitution at its bicentennial to pose once again the fundamental but tough questions that one puts to a free society. These are the questions that require accommodations of values, when the values one cares about come into collision with each other and have to be reconciled. I have in mind such accommodations as those between liberty and equality, between the instinct for stability on the one hand and the acceptance of change on the other, between government's proper role and that of private initiative. There needs to be a resolution of the tension between heritage and heresy, a synthesis of the old and the new worked out to be handed on to the next generation.

I associate myself with the notion that the Constitution is more than simply an instrument of government.

Clearly it is at least a piece of machinery that one hopes works rather well. But it's much more. At birthday parties, people make toasts and think about what the last year was like and hope that the next year will be a good one. That's the spirit in which we ought to be celebrating the Constitution's two hundredth birthday, because the bicentennial offers, as does the Constitution itself, a continuing seminar in government.

The Constitution inspires a kind of dialogue between two groups of people, those who hold power (we hope temporarily) and those who are governed. Among the people who make up the citizenry, the dialogue is a discussion about the nature and ends of governmental institutions - a debate over the effective means of living together under conditions of ordered liberty.

I have cast about for a theme for the bicentennial.

Many volumes have been written by people who have thought about constitutional principles. I offer you and I think it would be hard to improve upon - the theme of George Mason's Declaration of Rights for Virginia, written in 1776. It says: "No free government, nor the blessings of liberty, can be preserved to any people, but by ... a frequent recurrence to fundamental principles." That, I submit, is ample reason for celebrating the Constitution's birthday. It is the challenge of the bicentennial. Š1985 by A.E. Dick Howard (used by permission of author).

This essay is adapted from remarks first presented at the bicentennial symposium sponsored by the Constitution Study Group of the National Archives Volunteers.

This article first appeared in PROLOGUE, Journal of the National Archives, Vol 17, NO.3.

23

u.s. CONSTITUTION * * * U.S. CONSTITUTION Our sourc~ for the follo~ing list i~ Report No. 85--100S of the Congressional Research Service of the Library of Congress ..T~e lIst was complIed by Project '87 of the American Political Science Association and the American Historical AssociatIon.

Calendar of Commemorative Dates for the Celebration of the Bicentennial of the United States Constitution March 28, 1785: Mount Vernon Conference. George Washington hosted a meeting at Mount Vernon of four commissioners from Maryland and four from Virginia to discuss problems relating to the navigation of the Chesapeake Bay and the Potomac River. After negotiating agreements, the commissbners recommended to their respective legislatures that annual conferences be held on commercial matters, and that Pennsylvania be invited to join Maryland and Virginia to discuss linking the Chesapeake and the Ohio River.

January 16, 1786: Virginia's legislature adopted a statute for religious freedom, originally drafted by Thomas Jefferson and introduced by James Madison.

The measure protected Virginia's citizens against compulsion to attend or support any church, and against discrimination based upon religiOUS belief. The law served as a model for the First Amendment to the United States Constitution.

January 21, 1786: Virginia's legislature invited all the states to a September meeting in Annapolis to discuss commercial problems.

August 7, 1786: The Congress of the Confederation considered a motion offered by Charles Pinckney of South Carolina to amend the Articles of Confederation in order to give Congress more control over foreign affairs and interstate commerce. Because amendments to the Articles required the unanimous consent of the states, an unlikely eventuality, Congress declined to recommend the changes.

September 11-14, 1786: Annapolis Convention. New York, New Jersey, Delaware, Pennsylvania and Virginia sent a total of twelve delegates to the conference that had been proposed by Virginia in January to discuss commercial matters. (New Hampshire, Massachusetts, Rhode Island and North Carolina sent delegates, but they failed to arrive in time.) The small attendance made discussion of commercial matters fruitless. On September 14, the convention adopted a resolution drafted by Alexander Hamilton asking all the states to send representatives to a new convention to be held in Philadelphia in May of 1787. This meeting would not be limited to commercial matters but would address all issues necessary "to render the constitution of the Federal Government adequate to the exigenci~s of the Union."

February 4, 1787: The end of Shays' Rebellion.

General Benjamin Lincoln, leading a contingent of 4,400 soldiers enlisted by the Massachusetts governor, routed the forces of Daniel Shays. A destitute farmer, Shays had organized a rebellion against the Massachusetts government, which had failed to take action to assist the state's depressed farm population. The uprisings, which had begun in the summer of 1786, were com:4

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pletely crushed by the end of February. The Massachusetts legislature, however, enacted some statutes to assist debt-ridden farmers.

February 21, 1787: The Congress of the Confederation cautiously endorsed the plan adopted at the Annapolis Convention for a new meeting of delegates from the states " for the sole and express purpose of revising the Articles of Confederation and reporting to Congress and the several legislatures such alterations and provisions therein ."

May 25, 1787: Opening of the Constitutional Convention . On May 25, a quorum of delegates from seven states arrived in Philadelphia in response to the call from the Annapolis Convention, and the meeting convened . Ultimately, representatives from all the states but Rhode Island attended . The distinguished public figures included George Washington, James Madison, Benjamin Franklin, George Mason, Alexander Hamilton, Gouverneur Morris, James Wilson, Roger Sherman and Elbridge Gerry.

May 29,1787: Virginia Plan opposed. On the fifth day of the meeting, Edmund Randolph, a delegate from Virginia, offered 15 resolutions comprising the "Virginia Plan" of Union . Rather than amending the Articles of Confederation, the proposal described a completely new organization of government including a bicameral legislature that represented the states proportionately, with the lower house elected by the people and the upper house chosen by the lower body from nominees proposed by the state legislatures; an executive chosen by the legislature; a judiciary branch; and a council comprising the executive and members of the judiciary branch with a veto over legislative enactments.

June 15, 1787: New Jersey Plan proposed. Displeased

by Randolph's plan, which placed the smaller states in a disadvantaged position, William Patterson proposed instead only to modify the Articles of Confederation.

The New Jersey plan would give Congress power to tax and to regulate foreign and interstate commerce, and would establish a plural executive (without veto power) and a supreme court.

June 19, 1787: After debating all the proposals, the convention decided not merely to amend the Articles of Confederation, but to conceive a new national government. The question of equal versus proportional representation by states in the legislature then became the focus of the debate.

July 12, 1787: The Connecticut Compromise (I) . Based upon a proposal made by Roger Sherman of Connecticut, The Constitutional Convention agreed that representation in the lower house should be proportional to a state's population (all of the white residents, and threefifths of the blacks).

25

u.s. CONSTITUTION * * * U.S. CONSTITUTION July 13, 1787: Northwest Ordinance. While the Constitutional Convention met in Philadelphia, the Congress of Confederation crafted another governing instrument for the territory north of the Ohio River. The Northwest Ordinance, written largely by Nathan Dane of Massachusetts, provided for interim governance of the territory by Congressional appointees (a governor, secretary and three judges), creation of a bicamerallegislature when there were 5,000 free males in the territory, and ultimate establishment of three to five states on an equal footing with the states already in existence.

Freedom of worship, right to trial by jury, and public education were guaranteed, and slavery prohibited.

July 16, 1787: The Connecticut Compromise (II). The Convention agreed that each state should be represented equally in the upper chamber.

August 6, 1787: The five-man committee, appointed to draft a constitution based upon 23 "fundamental resolutions" drawn up by the convention between July 19 and July 26, submitted a document containing 23 articles.

August 6 - September 10,1787: The Great Debate. The Convention debated the draft constitution and agreed to prohibit Congress from banning the foreign slave trade for twenty years.

August 8, 1787: The Convention adopted a two-year term for representatives.

August 9, 1787: The Convention adopted a six-year term for senators.

August 16, 1787: The Convention granted to Congress the right to regulate foreign trade and interstate commerce.

September 6, 1787: The Convention adopted a fouryear term for the President.

September 8, 1787: A five-man committee, comprising William Samuel Johnson (chair), Alexander Hamilton, James Madison, Rufus King and Gouverneur Morris, was appointed to prepare the final draft.

September 12, 1787: The committee submitted the draft, written primarily by Gouverneur Morris, to the Convention.

September 13-15,1787: The Convention examined the draft, clause by clause, and made a few changes.

September 17, 1787: All twelve state delegations voted approval of the document. Thirty-nine of the forty-two delegates present signed the engrossed copy, and a letter of transmittal to Congress was drafted. The Convention formally adjourned.

September 20, 1787: Congress received the proposed Constitution.

September 26-27, 1787: Some representatives sought to have Congress censure the Convention for failing to abide by Congress' instruction only to revise the Articles of Confederation.

September 28, 1787: Congress resolved to submi.t the Constitution to special state ratifying conventions.

6

Article VII of the document stipulated that it would become effective when ratified by nine states.

October 27, 1787: The first "Federalist" paper appeared in New York City newspapers, one of 85 to argue in favor of the adoption of the new frame of government. Written by Alexander Hamilton, James Madison and John Jay, the essays attempted to counter the arguments of anti-Federalists, who feared a strong centralized national government.

December 7, 1787: Delaware ratified the Constitution, the first state to do so, by unanimous vote.

December 12, 1787: Pennsylvania ratified the Constitution in the face of considerable opposition. The vote in convention was 46 to 23.

December 18,1787: New Jersey ratified unanimously.

January 2, 1788: Georgia ratified unanimously.

January 9, 1788: Connecticut ratified by a vote of 128 to 40.

February 6, 1788: The Massachusetts convention ratified by a close vote of 187 to 168, after vigorous debate.

Many anti-Federalists, including Sam Adams, changed sides after Federalists proposed nine amendments, including one that would reserve to the states all powers not "expressly delegated" to the national government by the Constitution.

March 24, 1788: Rhode Island, which had refused to send delegates to the Constitutional Convention, declined to call a state convention and held a popular referendum instead. Federalists did not participate, and the voters rejected the Constitution, 2708 to 237.

April 28, 1788: Maryland ratified by a vote of 63 to 11.

May 23, 1788: South Carolina ratified by a vote of 149 to 73.

June 21,1788: New Hampshire became the ninth state to ratify, by a vote of 57 to 47. The convention proposed twelve amendments.

June 25, 1788: Despite strong opposition led by Patrick Henry, Virginia ratified the Constitution by 8~ to 79. James Madison led the fight in favor. The convenhon recommended a bill of rights comprising twenty articles, in addition to twenty further changes.

July 2, 1788: The President of Congre~s, ~yrus Griffin of Virginia, announced that the Constitution ~ad been ratified by the requisite nine states. A commIttee was appointed to prepare for the change in government.

July 26, 1788: New York ratified by ~ vote of ~O to 27 after Alexander Hamilton delayed action, hopmg that news of ratification from New Hampshire and Virginia would influence anti-Federalist sentiment.

August 2, 1788: North Carolina declined to ratify the Constitution until a bill of rights was added.

September 13, 1788. Congress selected New York as the site of the new government and chose dates for the appointment of and balloting by presidential electors, and for the meeting of the first Congress under the Constitution.

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October 10, 1788: The Congress of the Confederation transacted its last official business.

December 23, 1788: The State of Maryland ceded ten square miles to Congress for a federal city.

January 7, 1789: Presidential electors were chosen by ten of the states that had ratified the Constitution (all but New York).

February 4, 1789: Presidential electors voted; George Washington was chosen President, and John Ad~ms Vice President. Elections of senators and representatives took place in the states.

March 4, 1789: The first Congress convened in New York, with eight senators and thirteen representatives in attendance, and the remainder en route.

April 1, 1789: The House of Representatives achieved a quorum, with 30 of its 59 members present, and elected Frederick A. Muhlenberg of Pennsylvania to be its speaker.

April 6, 1789: The Senate, with 12 of 22 senators in attendance, achieved a quorum and chose John Langdon of New Hampshire as temporary presiding officer.

April 30, 1789: George Washington was inaugurated as the nation's first President under the Constitution .

The oath of office was administered by Robert R. livingston, chancellor of the State of New York, on the balcony of Federal Hall, at the corner of Wall and Broad Streets.

July 27, 1789: Congress established the Department of

Foreign Affairs (later changed to Department of State).

August 7,1789: Congress established the War Department.

September 2, 1789: Congress established the Treasury Department.

September 22, 1789: Congress created the office of Postmaster General.

September 24, 1789: Congress passed the Federal Judiciary Act, which established a Supreme Court, .13 district courts and 3 circuit courts, and created the office of the Attorney General.

September 25, 1789: Congress submitted to the states twelve amendments to the Constitution, in response to the five state ratifying conventions that had emphasized the need for immediate changes .

November 20, 1789: New Jersey became the first state to ratify ten of the twelve amendments, the Bill of Rights .

November 21, 1789: As a result of Congressional action to amend the Constitution, North Carolina ratified the original document, by a vote of 194 to 77.

December 19, 1789: Maryland ratified the Bill of Rights.

December 22, 1789: North Carolina ratified the Bill of Rights.

January 25, 1790: New Hampshire ratified the Bill of Rights.

January 28, 1790: Delaware ratified the Bill of Rights.

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America's Dates with Destiny (Continued) February 24,1790: New York ratified the Bill of Rights.

March 10, 1790: Pennsylvania ratified the Bill of Rights.

May 29, 1790: Rhode Island ratified the Constitution by a vote of 34 to 32. ' June 7, 1790: Rhode Island ratified the Bill of Rights.

January 10, 1791: Vermont ratified the Constitution.

March 4,1791: Vermont was admitted to the Union as the fourteenth state.

November 3, 1791: Vermont ratified the Bill of Rights.

December 15, 1791: Virginia ratified the Bill of Rights, making it part of the United States Constitution.

Lt. Govenor Mark Singel (Continued from page 5) Commission; the Local Government Commission and the Pennsylvania MILRITE Council .

Concerning other topics of interest to the new administration, the lieutenant governor offered these thoughts :

The Death Penalty: "I am not a fan of the death penalty . I do not believe it is a great deterrent. I have trouble with the concept of taking a life as a form of punishment. In a civilized society, the taking of a life is not a usual or humane punishment. I would have a problem recommending the death penalty and signing a warrant, but that is not my role. It still remains the governor' s prerogative. "

VJ ~~ T

Abortion: "1 have voted pro-life on many occasions. It is never an easy vote.

People think it is clear cut, you are either pro-life or a murderer. This makes no sense to me and both sides have been allowed to reach unusual levels of vitriol. It' s time we sit down to reach a compromise.

If we can't do it with a moral or religious sense, then we will have to do it politically. I am hopeful this issue can be disposed of at some point. I don't think we are that far apart. No one is really pro-abortion, or likes the notion of abortion for its own sake. People are concerned with life, and that is their motivating factor on each side of the issue. We should be able to fashion some direction on the state level, and determine exactly under what circumstances the procedure is justified. This will require the cooperation of the church, the politicians, and the public sector and the private sector."

The Judiciary and Merit Selection: "The judiciary shapes our legislative thinking and daily lives just as surely as the legislative and the executive branches. The improvements that are necessary in the judiciary, however, can be achieved without abandoning the notion of popular election. I am skeptical of the merit selection process because it transfers the elective process into a hand-picked selection by the governor. Merit selection is a misnomer. It is an elitist type of concept. I would rather see the regional election of judges, where the state is divided just as the federal district courts are divided. You then give a qualified person from each part of the state a chance to get elected.

The judges ought to have to put their qualifications before the people and let the people determine whether or not they are qualified ."

The Future of Pennsylvania " If there is a message, it is that the next administration has been called upon to take some chances, to focus in on the needs of the state and to stop toeing the line on an ideology that is directly detrimental to Pennsylvania. Bob Casey has a tremendous reserve of personal drive when it comes to his program.

I've signed onto his vision of Pennsylvania . As long as he sticks to it, and we give him the support necessary, we will accomplish it."

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