Lesson 39
What Does Returning to Fundamental Principles Mean?
Purpose
One of the Founders, George Mason from Virginia, said,"No free government, or the blessings of liberty can be preserved to any people, but by frequent recurrence to fundamental principles." In this concluding lesson, you have the opportunity of relating some fundamental principles and ideas of our government to contemporary issues.
The format of this concluding lesson differs from the others. Critical Thinking Exercises similar to others throughout this text present a series of quotations that represent great ideas and principles that have shaped our constitutional heritage. Some of these ideas contradict each other. However, American constitutional history has witnessed many conflicts between competing principles of equal merit. Examples include the conflict between majority rule and minority rights, between sovereign power and fundamental rights, between liberty and order, and between unity and diversity. Examples of conflicts appear in the following exercises. In each case you will be asked to apply the principles and ideas suggested in the quotations to a contemporary issue, to work through the issue on your own or in small groups, and to reach your own conclusions. In so doing you will use the skills of citizenship?observation, analysis, debate, and careful selection of value judgments?to reach, express, and defend an opinion. These exercises provide practice for the responsibilities you will encounter in the years ahead.
One of the Founders, George Mason from Virginia, said,"No free government, or the blessings of liberty can be preserved to any people, but by frequent recurrence to fundamental principles." In this concluding lesson, you have the opportunity of relating some fundamental principles and ideas of our government to contemporary issues.
The format of this concluding lesson differs from the others. Critical Thinking Exercises similar to others throughout this text present a series of quotations that represent great ideas and principles that have shaped our constitutional heritage. Some of these ideas contradict each other. However, American constitutional history has witnessed many conflicts between competing principles of equal merit. Examples include the conflict between majority rule and minority rights, between sovereign power and fundamental rights, between liberty and order, and between unity and diversity. Examples of conflicts appear in the following exercises. In each case you will be asked to apply the principles and ideas suggested in the quotations to a contemporary issue, to work through the issue on your own or in small groups, and to reach your own conclusions. In so doing you will use the skills of citizenship?observation, analysis, debate, and careful selection of value judgments?to reach, express, and defend an opinion. These exercises provide practice for the responsibilities you will encounter in the years ahead.
Biography
George Mason (1725-1792) George Mason wrote the Virginia Declaration of Rights. Later, as a delegate to the Philadelphia Convention (see Lessons 9-12) Mason led the movement against ratification of the U.S. Constitution because it lacked a bill of rights (see Lesson 13). Mason did not want government in America to become like government in England, and he believed declarations of rights as limits on government were one way to prevent this. Like anti-federalist Patrick Henry, Mason was a leader of those who pressed for the addition of explicit States rights[7] and individual rights to the U.S. Constitution as a balance to the increased federal powers, and did not sign the document in part because it lacked such a statement. His efforts eventually succeeded in convincing the Federalists to add the first 10 amendments of the Constitution. These amendments, collectively known as the Bill of Rights, were based on the earlier Virginia Declaration of Rights, which Mason had drafted in 1776. On the issue of slavery, Mason walked a fine line. Although a slaveholder himself, he found slavery distasteful for a variety of reasons. He wanted to ban further importation of slaves from Africa and prevent slavery from spreading to more states. However, he did not want the new federal government to attempt to ban slavery where it already existed, because he anticipated that such an act would be difficult and controversial. |
Court Cases
Planned Parenthood v. Casey (1992)
Facts of the Case:
The Pennsylvania legislature amended its abortion control law in 1988 and 1989. Among the new provisions, the law required informed consent and a 24 hour waiting period prior to the procedure. A minor seeking an abortion required the consent of one parent (the law allows for a judicial bypass procedure). A married woman seeking an abortion had to indicate that she notified her husband of her intention to abort the fetus. These provisions were challenged by several abortion clinics and physicians. A federal appeals court upheld all the provisions except for the husband notification requirement.
Question:
Can a state require women who want an abortion to obtain informed consent, wait 24 hours, and, if minors, obtain parental consent, without violating their right to abortions as guaranteed by Roe v. Wade?
Conclusion:
Sometimes. In a bitter 5-to-4 decision, the Court again reaffirmed Roe, but it upheld most of the Pennsylvania provisions. For the first time, the justices imposed a new standard to determine the validity of laws restricting abortions. The new standard asks whether a state abortion regulation has the purpose or effect of imposing an "undue burden," which is defined as a "substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability." Under this standard, the only provision to fail the undue-burden test was the husband notification requirement. The opinion for the Court was unique: It was crafted and authored by three justices.
United States v. Carolene Products (1938)
Facts of the Case:
A 1923 act of Congress banned the interstate shipment of "filled milk" (milk with skimmed milk and vegetable oil added). A manufacturer, indicted for shipping filled milk, challenged the law.
Question:
Does the law violate the commerce power granted to Congress in Article I, Section 8 and the due process clause of the Fifth Amendment?
Conclusion:
No. The Court upheld the act. In this otherwise unremarkable case, the Court planted the seeds for a new jurisprudence in a footnote to Stone's opinion for the Court. Here Stone gives a presumption of constitutionality to economic regulation. The Court would no longer substitute its views on economic policy for the views of Congress. Stone went further in footnote four by cautiously asserting that certain types of legislation might not merit deference toward constitutional validity. The most controversial element in the footnote was the suggestion that prejudice directed against discrete and insular minorities may call for "more searching judicial inquiry," establishing the rational basis test and the strict scrutiny standard of review. Strict scrutiny would not be used until Korematsu v. U.S. in 1944.
Planned Parenthood v. Casey (1992)
Facts of the Case:
The Pennsylvania legislature amended its abortion control law in 1988 and 1989. Among the new provisions, the law required informed consent and a 24 hour waiting period prior to the procedure. A minor seeking an abortion required the consent of one parent (the law allows for a judicial bypass procedure). A married woman seeking an abortion had to indicate that she notified her husband of her intention to abort the fetus. These provisions were challenged by several abortion clinics and physicians. A federal appeals court upheld all the provisions except for the husband notification requirement.
Question:
Can a state require women who want an abortion to obtain informed consent, wait 24 hours, and, if minors, obtain parental consent, without violating their right to abortions as guaranteed by Roe v. Wade?
Conclusion:
Sometimes. In a bitter 5-to-4 decision, the Court again reaffirmed Roe, but it upheld most of the Pennsylvania provisions. For the first time, the justices imposed a new standard to determine the validity of laws restricting abortions. The new standard asks whether a state abortion regulation has the purpose or effect of imposing an "undue burden," which is defined as a "substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability." Under this standard, the only provision to fail the undue-burden test was the husband notification requirement. The opinion for the Court was unique: It was crafted and authored by three justices.
United States v. Carolene Products (1938)
Facts of the Case:
A 1923 act of Congress banned the interstate shipment of "filled milk" (milk with skimmed milk and vegetable oil added). A manufacturer, indicted for shipping filled milk, challenged the law.
Question:
Does the law violate the commerce power granted to Congress in Article I, Section 8 and the due process clause of the Fifth Amendment?
Conclusion:
No. The Court upheld the act. In this otherwise unremarkable case, the Court planted the seeds for a new jurisprudence in a footnote to Stone's opinion for the Court. Here Stone gives a presumption of constitutionality to economic regulation. The Court would no longer substitute its views on economic policy for the views of Congress. Stone went further in footnote four by cautiously asserting that certain types of legislation might not merit deference toward constitutional validity. The most controversial element in the footnote was the suggestion that prejudice directed against discrete and insular minorities may call for "more searching judicial inquiry," establishing the rational basis test and the strict scrutiny standard of review. Strict scrutiny would not be used until Korematsu v. U.S. in 1944.
Primary Sources
Federalist No. 39
In No. 39, James Madison argues that the operation of the government will be republican but the principles of that operation will be democratic.
Brookhiser, Richard. What Would the Founders Do?: Our Questions, Their Answers. .
With his characteristic wit and insight, Brookhiser used his knowledge of the Founders and of modern politics to apply their views to today's issues. An early chapter compares "Their World, Our World". Brookhiser then looks at what the Founders might think about current concerns such as war and peace, race and identity, and education and the media. A brief work, but it is a provocative and enjoyable one.
Clapham, Andrew. Human Rights: A Very Short Introduction.
Very readable introduction to human rights. After a brief review of the historical development of international human rights, the book focuses on specific concerns including torture, privacy, discrimination and equality, education, and the death penalty.
Dahl, Robert A., Shapiro, Ian, and Cheibub, Jose Antonio, eds. The Democracy Sourcebook.
A superb collection of classic and contemporary readings. The book is divided into nine self-contained chapters. The Final chapter, "Democracy and the Global Order," expands on ideas presented in Unit Six.
Kagan, Robert. Dangerous Nation: America's Place in the World from its Earliest Days to the Dawn of the Twentieth Century.
In this very readable book, Kagan refutes what he calls "The myth of America's isolationist tradition." The Declaration of Independence firmly established America's conviction that the inalienable rights of all humankind transcended territorial borders and blood ties. A re-examination of early American foreign policy, Kagan contends, will show that the United States has not only been regarded as a wellspring of political and social revolution, but as an ambitious and, at times, a "dangerous nation."
Koser, Khalid. International Migration: A Very Short Introduction.
A balanced, thoughtful introduction to migration, a matter of worldwide concern. Koser puts migration to the United States in a global perspective.
Power, Timothy J., and Rae, Nicol C., eds. Exporting Congress?: The Influence of the U.S. Congress on World Legislatures.
Analysis of how the United States Congress has influenced elected assemblies in both old and new democracies. The essay comparing the U.S. House of Representatives with the European Parliament is especially insightful.
Sabato, Larry J. A More Perfect Constitution: 23 Proposals to Revitalize Our Constitution and Make America a Fairer Country.
Twenty-three proposals, ranging from reforming Congress and the electoral college to requiring national service and a new constitutional convention, are intended to stimulate discussion and debate.
Federalist No. 39
In No. 39, James Madison argues that the operation of the government will be republican but the principles of that operation will be democratic.
Brookhiser, Richard. What Would the Founders Do?: Our Questions, Their Answers. .
With his characteristic wit and insight, Brookhiser used his knowledge of the Founders and of modern politics to apply their views to today's issues. An early chapter compares "Their World, Our World". Brookhiser then looks at what the Founders might think about current concerns such as war and peace, race and identity, and education and the media. A brief work, but it is a provocative and enjoyable one.
Clapham, Andrew. Human Rights: A Very Short Introduction.
Very readable introduction to human rights. After a brief review of the historical development of international human rights, the book focuses on specific concerns including torture, privacy, discrimination and equality, education, and the death penalty.
Dahl, Robert A., Shapiro, Ian, and Cheibub, Jose Antonio, eds. The Democracy Sourcebook.
A superb collection of classic and contemporary readings. The book is divided into nine self-contained chapters. The Final chapter, "Democracy and the Global Order," expands on ideas presented in Unit Six.
Kagan, Robert. Dangerous Nation: America's Place in the World from its Earliest Days to the Dawn of the Twentieth Century.
In this very readable book, Kagan refutes what he calls "The myth of America's isolationist tradition." The Declaration of Independence firmly established America's conviction that the inalienable rights of all humankind transcended territorial borders and blood ties. A re-examination of early American foreign policy, Kagan contends, will show that the United States has not only been regarded as a wellspring of political and social revolution, but as an ambitious and, at times, a "dangerous nation."
Koser, Khalid. International Migration: A Very Short Introduction.
A balanced, thoughtful introduction to migration, a matter of worldwide concern. Koser puts migration to the United States in a global perspective.
Power, Timothy J., and Rae, Nicol C., eds. Exporting Congress?: The Influence of the U.S. Congress on World Legislatures.
Analysis of how the United States Congress has influenced elected assemblies in both old and new democracies. The essay comparing the U.S. House of Representatives with the European Parliament is especially insightful.
Sabato, Larry J. A More Perfect Constitution: 23 Proposals to Revitalize Our Constitution and Make America a Fairer Country.
Twenty-three proposals, ranging from reforming Congress and the electoral college to requiring national service and a new constitutional convention, are intended to stimulate discussion and debate.
Secondary Sources
Majority Rule/Minority Rights: Essential Principles
Democracy therefore requires minority rights equally as it does majority rule. Indeed, as democracy is conceived today, the minority's rights must be protected no matter how singular or alienated that minority is from the majority society; otherwise, the majority's rights lose their meaning. In the United States, basic individual liberties are protected through the Bill of Rights, which were drafted by James Madison and adopted in the form of the first 10 amendments to the Constitution. These enumerate the rights that may not be violated by the government, safeguarding—in theory, at least—the rights of any minority against majority tyranny. Today, these rights are considered the essential element of any liberal democracy.
The British political philosopher John Stuart Mill took this principle further. In his essay On Liberty he wrote, "The only purpose for which power can be rightfully exercised over any member of a civilized community against his will is to prevent harm to others." Mill's "no harm principle" aims to prevent government from becoming a vehicle for the "tyranny of the majority," which he viewed as not just a political but also a social tyranny that stifled minority voices and imposed a regimentation of thought and values. Mill's views became the basis for much of liberal political philosophy since, whether it is free market or economic liberalism or social liberalism.
Majority and Minority Rights
A great explanation of majority, minority rights and their affect.
Majority Rule/Minority Rights: Essential Principles
Democracy therefore requires minority rights equally as it does majority rule. Indeed, as democracy is conceived today, the minority's rights must be protected no matter how singular or alienated that minority is from the majority society; otherwise, the majority's rights lose their meaning. In the United States, basic individual liberties are protected through the Bill of Rights, which were drafted by James Madison and adopted in the form of the first 10 amendments to the Constitution. These enumerate the rights that may not be violated by the government, safeguarding—in theory, at least—the rights of any minority against majority tyranny. Today, these rights are considered the essential element of any liberal democracy.
The British political philosopher John Stuart Mill took this principle further. In his essay On Liberty he wrote, "The only purpose for which power can be rightfully exercised over any member of a civilized community against his will is to prevent harm to others." Mill's "no harm principle" aims to prevent government from becoming a vehicle for the "tyranny of the majority," which he viewed as not just a political but also a social tyranny that stifled minority voices and imposed a regimentation of thought and values. Mill's views became the basis for much of liberal political philosophy since, whether it is free market or economic liberalism or social liberalism.
Majority and Minority Rights
A great explanation of majority, minority rights and their affect.
What the founders meant by returning to first principles | |
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Why are fundamental principles important?
The individuals who founded our government cherished and respected ideas. They were excited about them. Ours is a nation that was created by ideas. It is not the product of a common culture or geography or centuries of tradition. The United States began as an experiment to see if certain ideas about government--never before tried on such a scale and in such a way--would work.
The English economist, John Meynard Keynes, once remarked that "in the long run it is ideas and not men who rule the world." If the upheavals of this century have taught us anything, it is that ideas have consequences, sometimes for good, sometimes for evil. We like to believe that in the end, good ideas will prevail over bad. Whatever the case, ideas do matter. One of the twentieth century's most compelling images comes from the Chinese student uprising of 1989. It was the photograph below of a young man, armed only with the moral authority of his cause, confronting a column of armored tanks. The picture moved and inspired the world.
What did the Founders mean by returning to first principles?
When George Mason spoke of the importance of a frequent recurrence to fundamental principles, he was invoking an old idea associated with republican government. The ancient Greeks and Romans believed that a government established with the purpose of serving the public good and involving the participation of all citizens could not survive unless each generation was reminded of that government's reason for being and the principles by which it operated.
"If a nation means its systems, religious or political, shall have duration," said another of the Founders, "it ought to recognize the leading principles of them in the front page of every family book. What is the usefulness of a truth in theory, unless it exists constantly in the minds of the people and has their assent?"
It is doubtful that these Founders had in mind an uncritical acceptance of the "wisdom of the past." In revisiting these principles, each generation must examine and evaluate them anew. Indeed, it is probable that the Founders would be somewhat surprised at the reverence in which they and their writings have been held by subsequent generations of Americans.
The Founders, themselves, were vigorous critics of the wisdom they inherited and the principles in which they believed. They were articulate, opinionated individuals who loved to examine ideas, to analyze, argue, and debate them. They expected no less of future generations. They would expect no less of you. To go back in thought or discussion to first principles requires us to make principled arguments and ground our opinions in ideas of enduring value. It is what citizenship in a free society is all about.
The individuals who founded our government cherished and respected ideas. They were excited about them. Ours is a nation that was created by ideas. It is not the product of a common culture or geography or centuries of tradition. The United States began as an experiment to see if certain ideas about government--never before tried on such a scale and in such a way--would work.
The English economist, John Meynard Keynes, once remarked that "in the long run it is ideas and not men who rule the world." If the upheavals of this century have taught us anything, it is that ideas have consequences, sometimes for good, sometimes for evil. We like to believe that in the end, good ideas will prevail over bad. Whatever the case, ideas do matter. One of the twentieth century's most compelling images comes from the Chinese student uprising of 1989. It was the photograph below of a young man, armed only with the moral authority of his cause, confronting a column of armored tanks. The picture moved and inspired the world.
What did the Founders mean by returning to first principles?
When George Mason spoke of the importance of a frequent recurrence to fundamental principles, he was invoking an old idea associated with republican government. The ancient Greeks and Romans believed that a government established with the purpose of serving the public good and involving the participation of all citizens could not survive unless each generation was reminded of that government's reason for being and the principles by which it operated.
"If a nation means its systems, religious or political, shall have duration," said another of the Founders, "it ought to recognize the leading principles of them in the front page of every family book. What is the usefulness of a truth in theory, unless it exists constantly in the minds of the people and has their assent?"
It is doubtful that these Founders had in mind an uncritical acceptance of the "wisdom of the past." In revisiting these principles, each generation must examine and evaluate them anew. Indeed, it is probable that the Founders would be somewhat surprised at the reverence in which they and their writings have been held by subsequent generations of Americans.
The Founders, themselves, were vigorous critics of the wisdom they inherited and the principles in which they believed. They were articulate, opinionated individuals who loved to examine ideas, to analyze, argue, and debate them. They expected no less of future generations. They would expect no less of you. To go back in thought or discussion to first principles requires us to make principled arguments and ground our opinions in ideas of enduring value. It is what citizenship in a free society is all about.