What I'm going to say, I'm afraid comes Under The Heading of something. I'm a patriotic stump stump speech. Least attended up that way. So you will forgive me if it if it is just that. in February 1798 Thomas Jefferson wrote his friend James Madison that a great ball was to be given in Philadelphia on the 22nd of the month Washington's birthday. You will remember that Jefferson was a man of democratic manners who after being inaugurated as president 3 years later. I walked back to his boarding house and waited his turn for dinner. And the he said that the very indelicate idea of celebrating Washington's birthday aroused uneasy Sensations, but he consoled himself with the thought that the birthday being celebrated was that not of the president but of the butt of the general once someone suggested to Jefferson that the nation mark his birthday the only birthday I recognize he replied is that of my country's liberties? We're in the middle now celebrating the 200th anniversary of our country's Liberties the birth of our country's Liberties. Sometimes it must seem a suffocating business drained of Feeling by repetition. But I think it has meaning still if we can find it. And the question is what is it? We are celebrating not temporal power surely not the unexampled wealth of this country. We celebrate a victory of ideas of principles of government. And the question is whether we really do still share faith in those ideas with the extraordinary group of people who created this country. It's necessary to recognize at the start that we commemorate this year much more than the events of July 1776. There was no United States then or after the war successfully ended. There was a collection of States acting together with difficulty in war and ineffectual in peace. And if the genius of the founders had run out there it is hard to imagine. What would be said in the bicentennial speech or indeed whether they would be any We're a nation today because the delegates to the Philadelphia Convention of 1787 Wrote a document beginning we the people of the United States. If birthdays are a celebration of survival. As they tend to become with age. I say that rather friendly because my wife has just written a book about birthdays. Then we really are celebrating what has made it possible for America to last two centuries in Freedom. And that is the Constitution. The relationship between the two documents the Declaration in the Constitution has been the subject of much dispute early in this Century. There was a fashion for debunking the Constitution for treating its framers as reactionary conspirators out to preserve their property. And the Declaration was seen then as a flame of revolutionary Purity democracy and egalitarianism snuffed out in 1787. That particular historical fashion seems to be passing perhaps because recent history makes it hard to maintain the image of the Constitution as a reactionary device. the two documents were show plainly responses to the necessities of two different times in 1776. The need was to establish Independence and Liberty as legitimate ends and to Rouse A desperate people to war against Colonial Masters. There was no occasion then to ponder the means of preserving Freedom under civil government the Declaration concern to legitimize revolution. In fact mentioned only recurring Rebellion as a remedy for tyranny. The time to consider the means of maintaining civil order with Liberty came with the Constitution. Lord Acton summed it up well in considering the influence of American history on France what the french took from the Americans he said was their theory of Revolution not their theory of government their cutting not their sewing we have exceptional insight into the minds of those who did The Sewing in 1787 because three supporters of the new constitution Hamilton Madison and Jay explained its purposes in a brilliant work of advocacy. It risks repetition to quote from the Federalist, but I think the risk must be run if there is one passage that best plays out the premises of the Constitution it maybe Madison statement in Federalist number 51. If men were angels He said no government would be necessary. Is Angels were to govern men? Neither external nor internal controls on government would be necessary. In framing a government, which is to be administered by men over men. You will notice you are reminded that in the 18th century. They spoke only of men. The great difficulty lies in this you must first enable the government to control the governed and in the next place oblige it to control itself a dependence on the people is no doubt the primary control on the government, but experience has taught mankind the necessity of auxiliary precautions. The Federalist Papers all the more remarkable if one considers the external realities when they were written It was a sprawling land much of an untamed. Where to hook 7 days for Virginia to hear the news that New Hampshire had provided the needed 9th State vote for ratification of the Constitution security was at risk from Indian and foreign Nations and the burden of War debts threatened Financial ruin. It sounds today like the setting for a totalitarian movement. But in no circumstances Hamilton and Madison and Jay put their faith in reason they believed that men were creatures rational enough to govern themselves. They believe the institutions could overcome the defects of human nature and keep men in Freedom and perhaps most amazing to us and these more cynical times. They believed that men could be persuaded to these views by philosophical argument. Faith and reason and in institutions that is the secret of Liberty that the framers tried to leave us. They recognized as the Federalist put it that Republican government was subject to Mortal diseases, but they thought there was a republican remedy in the extent and proper structure of the new federal government. It was in that structure and institutions that Americans were to find Madison's auxiliary precautions for their Liberty. Now the idea of riding into the very foundations of a government protections against future abuses was not new in 1787. It was found the ideas can be found. In fact in the document of 1776. The Virginia Declaration of Rights in good part the work of Jefferson's great libertarian friend George Mason. Not so well-known at least not to me until recently. It was adopted on June 12th, 1776 immediately published circulated in the colonies and known to Jefferson. It begins with the statement. All men are by Nature equally free and independent and have certain inherent rights namely the enjoyment of life and Liberty with the means of acquiring and possessing property and pursuing and obtaining happiness and safety. It is not hard to see their The Germ of Jefferson's bold assertion in the Declaration about certain unalienable rights among them life liberty and the pursuit of happiness. But the Virginia Declaration went on as the Continental Congress did not go on on July 4th to list some means of preventing abuse of government power. It said the legislative and executive powers of the state should be separate and distinct from the Judah captive. In language, like the 6th amendments. It said that those accused of crime should have the right to know the charge be confronted by Witnesses and be Tried by a local jury. It said that no man should be deprived of his Liberty except by the law of the land language that looks ahead to that mystical phrase due process of law. It called for freedom of the press and the free exercise of religion. It's easy to understand why the author of the Virginia Declaration opposed ratification of the Constitution of the United States because it contained no Bill of Rights. George Mason live to see the adoption of the first 10 amendments and he was reassured but I think the authors of the Federalist were right when they argued Madison directly against Mason in the Virginia ratifying convention that the original Constitution contained in the very nature of the government created safeguards as important as any in the Bill of Rights. What are the auxiliary precautions that the constitution provides against tyranny? Here again one can only be unfamiliar ground. There is first the pervasive theme that the federal government has only limited powers those granted by the Constitution something that we find. We assumed to be the case, but it's not the case with other governments. In other countries. It is not true. In other countries that officials must Point as they must in this country whether the president or a park service ranger to some legal Authority for any action he takes 2nd and closely related there is the federal system the division of power between the states and the federal government. Again, we take that for granted. But it is unusual the fact that the existence of independent systems of law of state governments of divers taxes and social legislation. All of that is different from almost any other country on Earth. And third there is the separation of powers among the three branches of the federal government. We lived a lie with the conflicts that result from that structure the Congressional struggles for executive information, the presidential vetoes the judicial negatives. They may seem inconvenience and they would be quite Unsinkable in Britain or France or most other countries, but the framers intended conflict their theory was but the natural tendency of anyone in government to be jealous of his own power would produce resistance when someone else in another Branch tried to over reach their purpose as Justice Brandeis put it a hundred and forty years later was not to promote efficiency, but to preclude the exercise of arbitrary power not to avoid friction, but by means of the inevitable friction incident to the distribution of the governmental Powers among three departments to save the people from autocracy. From all of these structural devices The Limited grant of authority the division between the federal government and the states in the separation of powers and from the specific guarantees of individual rights added in the first eight amendments on the 14th that follows one fundamental truth about our constitution. It gives us the most legalized system of government on Earth. Today we look to judges to decide how students made dressing School. To regulate the conditions of life in prisons and to decide what limits they may be on campaign contributions and expenditures in national elections example is chosen at random from recent cases, and I'm sure quite beyond the business of Judges outside the United States. As the American Constitution has worked in practice its most striking contribution to political theory has been the doctrine of judicial review the power of Courts to hold unconstitutional acts of Congress and the president and state legislators and officials. We're so used to the idea that we take it again for granted but it really is an extraordinary notion that judges should have the last word in a democracy overruling the acts of elected representatives and officials. I want me pick out a numerable cases. to say why the doctrine is so important in any case when selected would be familiar to many to me the case that makes the point most powerfully is Youngstown sheet and Tube company against Sawyer. In 1952 President Truman facing a crippling steel strike during the Korean War ordered his secretary of Commerce Charles Sawyer to seize and operate the country steel mills the company sued and a majority of the Supreme Court held the president's action unlawful President Truman immediately the same day ordered Mr. Sawyer to return the Mills to their owners. now what's the weather saying about the decision is that it was based not on any of the specific guarantees in the Bill of Rights such as freedom of speech repressor religion, but on the structural doctrines of the original Constitution, The opinions were varied. It's a little difficult to send them all up accurately. But in a generality majority found that the president had exercised the power that he had at least a share with Congress and very likely to have on the authority of Congress and Congress had not authorized it Justice Frankfurter Warren and his opinion that the founders of our country had no illusion that our people enjoyed biological or psychological or sociological immunity from the hazards of concentrated power and Justice Douglas said today a kindly president abused power to keep the steel mills running. But tomorrow another president might have other purposes. The Marvelous thing from me about Supreme Court decisions and it remained so for me, it's the way the principles established in one case may be applied in another 2 on early different facts and circumstances. When the steel case was decided it was right widely regarded treated in the law journals as a victory for conservative property interests, but twenty years later its principle that a president must point to specific Authority in law for his exercise of power was an important factor in the Supreme Court's refusal to prohibit newspaper publication of the Pentagon papers. An injunction for which they would have been no Authority in any statute and the Steelcase play depart again. In the willingness of the courts to join issue with President Nixon over the White House tapes and in the ultimate rejection of his claim that presidents are immune from the judicial process. What may have doubts about the role of courts in this country and it's wise to be cautious and not to expect judges to do everything. But I continue to have myself a warm feeling especially for the process. Because courts above all are or ought to be concerned with principal. The other branches of government are entitled to act on the basis of expediency. They are political and to act even without explanation the Supreme Court and courts generally must give reasons for what they do reasons that appeal to the intellect and the ethical sense of the country. The Supreme Court introduces at its best a model element into our political life. It listens to the despised attend the rejected minorities the politically unorthodox prisoners when no one else went well. I want a free countries depend on Unwritten understandings to avoid abuse of official power. The obvious example is sprinting where judges must and force as Law whatever Parliament Annex and where it where very large and undefined power is delegated to the executive once when I lived in England, I complain to a friend about a law that seemed to me grossly arbitrary he replied. You don't understand you Americans take pride in being a country of laws. Not men. This is a country of men not laws. In short the British rely on a tradition of decency in public service, but even the British are not so sure any longer. The tradition is enough of a safeguard. There is talk of bringing in some kind of entrenched Bill of Rights. Given the volume of a official brutality in the world today. It is not surprising that people elsewhere should look with Envy at the independent power of American courts to protect basic human rights the feeling struck me with particular force on a recent visit to South Africa a country where the official mechanisms of inhumanity have been constructed with a devilish Ingenuity in a way the worst thing about South Africa a country that has many good things about it to an American visitor is the subservience of law to the cruelest policies of the state. There are superb and courageous lawyers, but they operate within a system where judges must carry out. The harshest statutes where it is law that blacks should have separate and unequal public facilities where law labels as terrorism, but we were to guard has the mildest kind of political dissent. But the American Reliance on Law and institutional structures to maintain our liberties carries with it a considerable risk if law fails if institutions are distorted then the United States may be left vulnerable more vulnerable than a society like Britain's that looks to tradition for safety. Watergate is what comes to mind. Of course, we congratulated ourselves when it was over. But we also had a prickly feeling of having come close to a Corruption of Institutions. That would not have been easy to undo and Watergate was the signal of a more profound Distortion in the Constitutional structure. the lopsided growth of Presidential Power what has happened to the presidency in this century? Shows that even the authors of the Federalist lacked perfect. Foresight Madison's said that in a Republican government the legislative branch would necessarily predominates. The executive was safer. He said being restrained within an hour or compass and being more simple and its nature. To expose imperfection to the full I should add that Hamilton foresaw a moral certainty that the office of President will sell them fall to the lot of any man who is not in an eminent degree endowed with the requisite qualifications, and he foresaw a constant probability of presidents preeminent for ability and virtue. He must have been reading Theodore White. In the last 40 years the power of the presidency. If not, the virtue of its occupants has grown beyond the imagination of the framers and the reasons are evident. Presidents were usually creatures of modest Authority so long as most problems and most responsibility in this country remained local in character. But since 1933, the American economy has been nationalized the public looks to Washington now for all the fundamental economic and social decisions on prices interest rates unemployment welfare, and an endless number of other matters inevitably people look to the president our one most visible figure and simile perhaps even more so In foreign affairs. The pressure is always for presidential action. One is reminded of that moving passage in Shakespeare's Henry V. When the king walks alone in the English Camp the night before action Court talks with his soldiers in disguise. And hears them speak of the king as bearing all their burdens upon the king. He says to himself. Let us our lives our souls our debts our careful wives our children and our sins lay on the king. It would take a person of exceptional modesty and Clarity of vision to resist the corrupting effects of such attention and we have been in rather short supply of such presidents lately. Two recent presidents were so we can he go or character that they mimicked the style of a monarch. Mr. Nixon grass the White House guards in chocolate Soldier suits until after exploded that pretension. Mr. Johnson, we have learned lately actually walk down the aisle of Air Force One One Night shouting I am the king. His press secretary followed saying that's off the Record. You'll find the episode described in Helen Thomas's new book on her experiences as White House correspondent for United Press International. A single examples of vices to indicate how Presidential Power has slipped away from the conception of the framers. It is an example related to the war power and you may recall that the constitution reserves to Congress the power to declare war. In 1973 after the Paris agreement that ended direct American military action in Vietnam. American aircraft were shifted at President Nixon's direction to bomb Cambodia. There was no Authority for such a war on Cambodia in any statute resolution or treating. The Tonkin Gulf resolution which had offered a form of justification for American action in Vietnam had been repealed. There were no American troops to protect by bombing. The only attempt that I know of that a legal justification was offered by the then Secretary of Defense Elliot Richardson. He said that the Cambodian government had asked us to bomb the fact that I think could hardly add to the Constitutional power of an American president. Then came what I think may have been the most Brazen attempt by any president to break the bounds of the Constitution attempt may be the wrong word because it's excited to an extent. Congress passed a piece of legislation forbidding all US military action in or over or off the shores of the four states of indo-china. Mr. Nixon veto the bill and claim the authority to go right on bombing as he did. He'd us assume the power to wage your War not only in the absence of congressional approval but in the face of express disapproval it was as if the Constitution has been amended by Presidential fire to read the president shall have the power to wage war unless the Congress by a two-thirds vote of both houses shall order him to desist. That particular issue was resolved when a compromise applied at a later date the prohibition on bombing or other military action in Indochina. But I wonder whether the Constitutional damage was limited. One year ago next week. Another president bombed Cambodia in retaliation for the seizure of an American merchant ship. The law I've just mentioned. Which simply and flatly prohibits the use of military force in Indochina was and is still on the books, but hardly any member of Congress or of the Pressed mentioned in discussing the Maya goes episode. I fear that the habit of shrugging at presidential lawlessness in foreign and Military Affairs will be hard to break. The Cambodian episode shows how much we depend on chords to hold us to our principles. The bombing seemed to me more flagrantly Lawless then President Truman's still see but a lawsuit to stop it failed because of traditional judicial reluctance to get into anything labeled Foreign Affairs it often seems puzzling that our country has devoted to civil liberties and human decency is at home as I believe the United States is can be so involved in in Humanities abroad One reason must be that environment has the courts do not perform their vital function of Illuminating the ethical implications of policy. What other factor in foreign affairs should be mentioned the greater tendency to do business in secret just as this country is more vulnerable to a failure of law or institutions because it relies on them. So I think it is especially vulnerable to the corrupting effects of official secrecy comparison with Britain May again be helped. In a country governed in good part still buy an old boy Network where certain things are. Just not done. Secrecy need not nurture abuse of power though even in England there is growing awareness of danger in secrecy. The United States has no old boy network. No morality of the playing fields accountability and our system depends as so much does on more formal institutions. In the London Stock Exchange discipline is applied by the club itself without laws hours is applied by a federal commission and one to which the law requires disclosure. We depend not only on law but on openness with us, it might be said there can be no accountability in the dark. The history of the last Dozen Years is littered with the terrible results of secrecy one need mention only Vietnam war that we ended by stealth and wage by methods that we can seal for Marcel abuses of the intelligence agencies could only have been nurtured in secrecy. I am confident. The plans would never have been made if those making them had been even faintly aware that they might come to like because they would have been ashamed the most Insidious effect of secrecy may be on the attitudes of the people they met and did some of them do come to accept that they should be excluded from a large part of the business of government since when does the president of the u.s. Have to have public discussion when he considers it necessary to bomb or send troops into a country? One wonders how such a question would have struck the men who risk their lives their fortunes and their sacred honor to make a revolution against George the third demanding government with the consent of the governed. Since 1776 the conditions of Life have been transformed. But the meaning for our experiment in Freedom is not necessarily so encouraging. What an Oxford? Politics lecture Allen Ryan Road recently of Liberty and his country has meaning for hours by old standards. He said we have surely Concord scarcity, but we often feel worse off our knowledge of the natural order and are controls over it are quite extraordinary but far from making us feel more like free and rational beings that makes us aware of a humiliating dependence on Experts and an altar to many cases resentful of logic let alone science. We may have reduced political arbitrariness, but we have locked ourselves in an iron bureaucratic cage. We live in an age of juggernauts of scientific and Industrial and military power. So huge and so remote that we wonder whether any government can control those powers. We have begun to worry about destruction of the life-sustaining environment in society. We sense dangerous divisions dangerous because those excluded from the benefits of civilization on account of race or poverty are not likely to have much stake in civilized behavior. And as the problems grow larger the political leaders seem to grow smaller, or is that only an optical illusion? Perhaps most troubling as we celebrate the birth of our country's Liberties are signs that Americans are straying from the truth written into our fundamental law in 1787 that the only way to preserve the end of Liberty is to concern ourselves with the means of political Society. There are disturbing signs not limited to one party or ideology. They cover the political Spectrum signs of sacrificing disregarding means And assuming that the end will justify them. Liberals and courage presidents to make executive agreements instead of treaties to take warlike actions without a declaration of war to use executive orders on domestic social issues all because they would be easier than going to Congress for authority. Conservatives were prepared to jettison law and the Constitution itself in the name of fighting subversion. In 1954 a committee advised President Eisenhower on Covert activities and it said that it might be necessary for this country to use tactics more ruthless than those employed by the enemy Heather to acceptable Norms of human conduct do not apply long-standing American concepts of Fairplay must be reconsidered. Then last fall when they sent it report on CIA assassination plots was published. and the Lord was proposed to Bar such assassinations Spiro Agnew said that the CIA should keep the option of assassination. It's typical of Americans. He said to expect themselves to abide by the rules While others don't. Yes, it is typical and it is precisely what the founders of this country had in mind. They thought the liberty of Americans depended on following the rules no matter what others did they lived in a time of acute dangerous? But that did not lead them to say that the end justify the means they did not limit the powers of government except during Indian Wars. They did not guarantee Free Speech unless the British burn the White House. They gambled instead on following the rules whether convenient or not. Our question is whether the ideals of the 18th century fit the crude realities of the 20th. Can there really still be safety in the vision of Jefferson and Madison of freemen delegating the most limited powers to those who govern in their name? Or is that an Arcadian Fantasy on suited to life in a disorderly country on a bristling planet? But I suppose if I thought the vision of 1776 and 1787 had become outmoded I would not be here. I think it is more meaningful and more important now than ever just think what has happened to this country in the last Dozen Years. The assassination of a president did Grievous damage to our confidence the two presidents who followed had faults of character so grave that they went to the edge of destroying our sense of political legitimacy a terrible War sack belief in our own values a criminal conspiracy operated at the top of our political system. Not many countries could go through all that and emerge intact as I think we did that's not reason for smugness. The poison of Doubt introduced into our national Life by Vietnam and Watergate will be with us for a long time. But there is reason for pride in our institutions. We survived the cause of laws. Not men because of the formal structures created in 1787. And most important I think because of our commitment to the enforcement of those understandings by law. Even Richard Nixon felt obliged to bow in the end to law to the Supreme Court the branch of government that the Federalists said would be Beyond comparison the weakest of the three having neither Force nor will but merely judgment in the tradition. We have forged judgment was enough Regretfully too few Americans prize as they should our histories one incontestably great achievement, which is constitutionalism. Recently a most sophisticated student of social thought Daniel Bell of Harvard looked at the decline of American Illusions. I was familiar illusions of omnipotence of having been picked out as special people different than Merrill's from everybody else on the earth and erode of all the gifts bestowed on this country at its founding the one that alone remains as the element of American exceptionalism is the Constitutional system. But in our distraction I fear our Zeal for getting and spending we forget sometimes the essential values of our political Society or worse yet. We are ready to trade them for Promises of instant gratification. I think we need more faith in self-government not less more openness not more secrets a deeper commitment to law not new ways of avoiding its inconveniences, like human beings. Generally we yearn for order but experience has added weight to the framers teaching that it must be an order made tolerable by reason and Humanity. I'll finish with another an old story after a lot of old stories. when he was 83 Jefferson was invited to Washington for the 50th anniversary of the Declaration of Independence, July 4th, 1826. He replied that he was too ill to make the journey, but he offered this still amazingly vigorous and confident thought. The general spread of the light of science. He said has already laid open to every view the palpable truth that the mass of mankind was not born with saddles on their backs for a favored few booted and spurred ready to ride them legitimately by the grace of God. On the morning of that July 4th Jefferson died at Monticello a few hours later in Quincy Mass his political rival and great friend. John Adams died Adams. His last words were Jefferson still lives. As the man who promised life liberty and the pursuit of happiness to those who would fight for ideals. I believe he does. Thank you.