An exposition of the constitution of the state of Wisconsin

Front matter

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COMBINED CONSTITUTIONS.

HIED SHIES AID WISCONSIN.

Preface

small capitals. The matter printed in smaller type may be omitted if there is lack of time, or with younger classes.

The author’s aim has been to use plain language, and direct and simple forms of statement.

The question of whether we are a Nation or a Confederacy, was settled by the framers of this Constitution. But it has also been setted by our civil war in a more effectual way than by any words written on paper. Any writer on the Constitution who dodges this most important issue is false to his country as well as to truth. On this and other questions about which there is a difference of opinion, the truth ought to be spoken without hesitation or equivocation. This the author has meant to do.

This work has been thoroughly revised in MSS. by the law firm of Lewis, Lewis & Hale, of Madison, the senior member of which is United States District Attorney. Portions of it have also been submitted to officers who have to deal with the subjects treated of in those portions. The author’s acknowledgments are also due to many teachers and superintendents of schools for suggestions which have helped to improve this work. Should, however, any errors still be found in it, the author will be thankful for due notice of the same.

Madison, Wis., August 23 , 1S80.

Note. — There is an apparent, but not a real, discrepancy between the property valuations given on pages 34 and 292. The former is the true valuation, the latter the assessed valuation. In estimat¬ ing the average wealth of our citizens, the true valuation is given. In estimating the effect of a property qualification for the suffrage, the assessed valuation is used, which is the one on which the quali¬ fication to vote would be based.

Table Of Contents

Pages.

PRELIMINARY MATTERS.. 3-8

Preface. 3

Section Fourth — Federal Protection of States... 244 Article Fifth—Amendments. 247-251

Article Sixth—Supremacy op this Constitu¬ tion . 252-256

Article Seventh—Ratification op this Con¬ stitution . 257-259

Amendments I-X — Bill op Rights. 260-279

Article I — Freedom of Thought. 265

Article II — The Right to Bear Arms. 266

Article III — Quartering Soldiers. 267

Article IV—Unreasonable Searches and Seiz¬ ures . 268

Article V — Rights of Accused Persons before

Trial. 269

Article VI — Rights of Accused Persons on

Trial. 272

Article VII — Trial by Jury in Civil Cases 274

Article VIII — Excessive Bail, Fines and Punish¬ ment. 276

Article iX — Strict Construction of Personal

Rights. 277

Article X — Limited Powers of the U. S. Gov¬ ernment. 277

Amendments XI and XII— Miscellaneous . 280-282

Article XI — State Repudiation. 280

Article XII — Election of President. 282

Amendments XIII-XV — Results op the Civil

Article XIII — Slavery Abolished. 285

Article XIV — Miscellaneous Provisions Relating

to the Civil War. 286

Article XV — Negro Suffrage. 297

* Thou too — soil on, O, Ship of St at*!

Sail on, O Union, strong and great!

Humanity, ■with all its fears,

With all its hopes of future years,

Is hanging breathless on thy fate!

We know what Master laid thy keel.

Who made each mast, and sail, and rope.

In what a forge and what a heat Were shaped the anchors of thy hope!

* Fear not each sudden souna and shock,

•

’Tis of the wave and not the rock;

1 Tis bid the flapping of the sail.

And not a rent made by the gale!

In spite of rock and tempest''s roar,

In spite of false lights on the shore,

Sail on, nor fear to breast the sea!

Our hearts, our hopes, are all with thee,

Our hearts, our hopes, our prayers, our tear i. Our faith triumphant o'er our fears,

Are all with thee,—are all with thee!"

— Longfellow

THE CONSTITUTION OF THE UNITED STATES.

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GENERAL PLAN OP THE CONSTITUTION.

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THE ENACTING CLAUSE.

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ART. I. Thk Legislative Department.

ART. II. The Executive Department.

ART. III. The Judiciary Department.

ART. IV. Relations op the States.

ART. V. The Method op Amendment.

ART. VI. The Supremacy op this OoKsimm®*, ART. VII. The Ratification of this Constisttti©®, f

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AMENDMENTS I-X. Bull op Rights.

AMENDMENTS XI-XII. Miscellaneous.

AMENDMENTS. XIII-XV. Results op the Ortik ^

THE CONSTITUTION OF THE UNITED STATES.

THE ENACTING CLAUSE.

"*A government of the people, by the people, and for the people."

— Abbaham Linoowt.

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.

I. The United States a republic. — Governments are classified according to their form as Monarchies, Aristocracies and Democracies.

1. A Monarchy is a government by one person. A monarchy may be either absolute or limited. In an absolute monarchy the sovereign is not restricted in his powers by any constitution; in a limited monarchy he is restricted in his power by some hind of constitution, written or unwritten.

2. An Aristocracy is a government by a small part of the people, who form a privileged class. An aristocracy may be one of birth, or of wealth, or of both combined.

3. A Democracy is a government by the people. A democracy may be either pure or representative. A pure democracy is one in which the voters themselves meet and make laws. In a representative democracy the voters elect representatives to make the laws. A representative democracy is usually called a republic.

ENACTING CLAUSE.

It is plain that in so large a country as ours the voters cannot assemble to make laws, but that they must do that work by representatives. So that in a large coun¬ try a pure democracy is impossible. If the government is democratic it must be a representative democracy.

The United States then is a republic. It is not the government of One or of the Few, but of the Many. And as it is representative in form, it is a Republic.

A republican form of government is guaranteed to every State in the Union, by this Constitution (Art. IV, Sec. 4). Whatever else this means, it means at least that no State shall ever become a monarchy or an aristocracy.

II. The people the source oe power. — A repub¬ lic is a government by the people through representa¬ tives. The representatives govern, but they do not govern by any inherent right, but only as representa¬ tives. The people are the source of power. In the words of President Lincoln, this is u a government of the people, by the people, and for the people.”

The members of the House of Representatives are the most direct representatives of the people, as their name indicates. But every officer of the United States or of any State, is directly or indirectly chosen by the people, and is responsible to the people for the faithful performance of his duties.

The Enacting Clause recognizes this fact, that the people are the source of power, and says expressly u We, the people of the United States, do ordain and establish this Constitution.”

III. A popular government best. — A demo¬ cratic government is best, in any country in which the people are fitted for it. Rude and barbarous nations, or nations intelligent, but debased morally, are not

ENACTING CLAUSE.

fitted to govern themselves. Hence monarchies or aris¬ tocracies are best for such nations. But where the peo¬ ple generally have a fair degree of intelligence and of moral character, a republican government is best.

The people will doubtless make mistakes and do wrongs, but so will any government, and the mistakes and errors of a republic are certainly no worse than those of a monarchy or an aristocracy. No one claims that republics will be perfect. Nothing human is perfect.

But we can reasonably claim that those oppressions and corruptions which are easy to begin and to keep up under other forms of government, are almost impossi¬ ble under a republic. In an absolute monarchy the interests of the king and his favorites are attended to, without much regard to the interests of the rest of the people. In an aristocracy the interests of the ruling class are the only interests thought of. But in a republic, the interests of one class are balanced by the interests of the other classes. All are represented; and the interests of all are secured as well as is possi¬ ble in human affairs. The public discussions, which are necessary in a popular government, prevent secret forms of corruption, and help to secure justice and purity of administration.

In short, when the people of any country are fit to take care of themselves, they can do it better than any kine: or nobles can do it for them.

IV. Objects of this constitution. — The objects of this constitution, as here stated, are six:

1. To form a more perfect union.

2. To establish justice.

3. To secure domestic tranquility.

4. To provide for the common defense.

5. To promote the general welfare.

6. To secure the blessings of liberty to the people of the United Btates and their posterity.

ENACTING CLAUSE.

These all refer to the defects in the government of the United States at that time, under the Articles of Confederation.

That union was (1.) a very imperfect one; (2.) it did not establish justice; (3.) it did not ensure domestic tran¬ quility; (4.) it did not provide efficiently for the com¬ mon defense; (5.) it could do but little to promote the general welfare; (6.) and therefore it was not strong enough to secure the blessings of liberty to this country for any great length of time.

The defects of the Confederation were many; but they may all be summed up in one phrase: The real power was vested in the several states, and Congress had no power to enforce its laws. Congress could resolve , but it could not execute; it could ash the states to pay taxes, to furnish troops, to conform to treaties, to do justice* to each other’s citizens, but it could not command them,

Y. The constitution compared with the artl

CLES OF CONFEDERATION.

1. This Constitution forms a more perfect union than that undei the Articles of Confederation. It is still not a perfect union; for it was not wished to destroy the States and make one centralized gov¬ ernment, nor would that have been wise. But the loose and ineffi¬ cient Confederation was exchanged for a Federation in which a strong national government was set up over States still retaining much power.

2. Justice is established by means of a national Judiciary, which protects foreigners and the citizens of other states against unjust decisions of any State courts. [See Article III.]

3. Domestic tranquility is ensured by the provision that the United States shall protect each State against domestic violence. [Article IV, Sec. 4.] Shays’s rebellion in Massachusetts in 1786, had called general attention to the need of a strong central govern¬ ment to assist the states against such insurrections. 1

1 Washington wrote at that time to a member of Congress: “You talk, my good s.r, of employing influences to appease the present troubles in Mas¬ sachusetts. Influence is not government . Let us have a government by which our lives, liberties and properties will be secured, or let u* know the worst at once.”

ENACTING CLAUSE.

4 . The common defense could only be provided for by a govern¬ ment capable of raising and supporting armies and navies. Even in the enthusiasm of the Revolutionary War, the central govern¬ ment showed how weak it was, to raise armies or collect taxes, and thinking men saw that in another war it might be still worse.

5. To promote the general welfare is an elastic expression, capa¬ ble of being lengthened or shortened according to our own ideas of what is for the general welfare. This clause has covered things as different as the purchase of Louisiana, an expedition to the North Pole, a system of weather reports, and the establishment of the Smithsonian Institution. Under this clause the powers of the gen¬ eral government may yet be greatly extended.

6. To secure the blessings of liberty, law is needed as well as liberty. Liberty alone soon degenerates into license, and that into anarchy, which is worse than despotism.

The American idea of liberty is of liberty protected by law. This principle is carried out in our own natioriat government. The power of the general government is given to it in order to secure the blessings of liberty to the people; not to destroy that liberty, but to protect it. Under this government we have flourished during this first century as few nations of the world have ever done. We have also survived the shock of a great Civil War, which settled the question whether this Constitution should be accepted for all it means. We may therefore reasonably hope that our liberty, pro¬ tected by the strength of our national government, will be handed down to a remote posterity.

VI. The United States a nation, not a con¬ federacy.

The enacting clause reads, “ We, the people of the United States, do ordain and establish this Constitution." It does not read, “We the States do contract and enter into a treaty with each other.” The United States is therefore one nation , and not a confederacy of independent allied states. The source of power is not in the several states, but in the people of . the United States. This Enacting Clause was not worded as it is, hastily or inconsiderately. There was a great difference of opinion in the United States, both before and after this Constitution was adopted, upon this very point. The Thirteen Colonies, though all alike dependent upon England, were independent of one another. They had formed several alliances among themselves for defense, and when the struggle with the

ENACTING CLAUSE.

mother country began they were drawn together by the necessities of the war. Many thoughtful men advocated a much closer union even in 1775; but the Articles of Confederation adopted in 1781, were as much as the states were then willing to concede. And it was not until experience had shown the great evils which come from the jealousies and rivalries of independent states, held together only by a weak confederate government, that the people became willing to establish a real national government. And even then there was a large minority opposed to the Constitution, because it took away the independence of the states.

After the Constitution was adopted the contest was carried on by the two parties which were immediately organized, the Federalist and the Anti-Federalist. As the Constitution by its practical work¬ ings showed its value, it came to be accepted generally by the people as the bond of our Union. The Supreme Court has decided that these words, “ We, the people of the United States,” etc., declare us to be one nation. And at last our great Civil War has settled the question practically. The seceding States claimed not only the right of revolution, which every oppressed people has, but the right of secession, claiming that we were not one nation but a con¬ federacy of independent allied States, and that any State had a right to dissolve the alliance at pleasure. The result of the war decided that the American people are one nation , and mean to remain so.

VII. Local self-government and national unity.

The United States differs from many republics in being composed of several States. It is a Federal Republic in which some powers are given to the state governments and some to the United States government. Just where to draw the line between these two sets of governmental functions, is a difficult question both in theory and in practice. Ever since the Constitution was adopted, there have always been two political parties, the one inclined to limit the pow¬ ers of the United States government and increase the powers of the states, and the other party inclined to increase the powers of the United States government and limit those of the states. But, on the whole, the general government has been slowly gaming power at the expense of the state governments. This growth in power, however, has not been so great as to change the essential relations of the two pets of governments. These principles may be stated thus*

ENACTING CLAUSE.

1. The United States government has all the power needed for

national independence.

2. The state governments have all the power needed for local self-government.

Every person in the United States (except in the District of Co¬ lumbia and unorganized territories, in forts, arsenals, and dock¬ yards, or on the high seas) is thus subject to two jurisdictions. Ha is subject to two sets of laws, which are made and administered by two different sets of officers, and he pays taxes and owes allegiance to both governments, that of the state or territory in which he is, and that of the United States. For nearly all the ordinary rela¬ tions of business and society, he looks to his state law and state government. He marries and is divorced, educates his children, transmits his property, buys and sells, and is protected from thieves and murderers, under the laws of the state or territory where he is at the time, But he is protected from foreign foes by United States troops and ships; he uses United States money; feends and receives letters through the United States postoffices; and, if he is a for¬ eigner, he can only be naturalized according to United States law. It is plain that in ordinary business and society the state govern¬ ment touches the citizen at far more points than the general gov¬ ernment does.

But the principle of local self-government is carried out still fur¬ ther. The states leave the affairs of each township, village, city or county to be regulated by the people thereof, under the general provisions of state laws which limit and define the powers of these subdivisions of a state. There is nothing in the United States Con¬ stitution which requires this, and not very much in the constitutions of the several states. But it is a part of the unwritten constitution,- the political habits of the American people. Thus the federal character of our republic harmonizes with the American habit ot local seli-govemment, and is thus sustained by a power far more effectual than any written constitution.

THE LEGISLATIVE DEPARTMENT.

[ 1 *

ARTICLE I.

THE LEGISLATIVE DEPARTMENT.

“ There the common sense of most shall hold a fretful realm In awe. And the kindly earth shall slumber, laptin universal law.”

— Tekktsow.

I. G-eneral plan op this article. — This Article is put first, because it is the most important and the longest Article in the Constitution. A republican gov¬ ernment is a government of laws, not a government of men, And therefore in such a government the most important part is to make the laws, which is the duty of the Legislative Department of the government. Laws must be made by the Legislative Department before they can be executed by the Executive Department, or before cases can arise under them to be brought before the Judicial Department.

This Article is divided into ten sections as follows:

Sec. 1, states in whom the Legislative power is vested.

Sec. 2, treats of the House of Representatives.

Sec. 3, treats of the Senate.

Sec. 4, treats of the elections and sessions of Congress.

Sec. 5, treats of the powers of each House separately.

Sec. 6, treats of the privileges of members.

Sec. 7, treats of the process of making laws.

Sec. 8, treats of the powers of Congress.

Sec. 9, treats of the prohibitions on Congress.

Sec. 10, treats of the prohibitions on the States.

1:1.] IN WHOM LEGISLATIVE POWER IS VESTED. IT