Chapter Two: In the Beginning Six Thousand Years Ago and The Constituation of 1789-91

Combined, what is now North America, South and Central America, Canada and Alaska covers an area of about 16,000,000 square miles, a quarter of the earth's land mass and an area four times that of Europe. Geologists all agree that this land mass was once linked to Asia by a land bridge, now under water. This bridge allowed overland travel between Russia and Alaska. Some forty thousand years before Christopher Columbus ever landed in this new world, it had cultures distinctive to the areas in which each flourished, such as Central America, South America and North America. In 1492, the population of this land mass between the Atlantic and Pacific Oceans was variously estimated at between 65 and 150 million people.

The natives of the land now submerged by melt from the Ice Age naturally followed climate-dictated changes from the extreme cold of Alaska to the more temperate zones of Central and South America. Glaciation occurred in what is now China and Russia. It may have created a climate so disagreeable that humans were compelled to leave via the land bridge connecting Asia with North America. The end of the Ice Age in North America, during which a huge sheet of ice about two miles thick covered the land as far south as Illinois and Wisconsin has been estimated as occurring about 8000 years ago. As these glaciers in the Ice Age melted, they raised the world's water level by many feet over time. The sheer weight of ice also depressed land levels by as much as 200 feet.

For those believing that an even earlier civilization once existed long before the Ice Age, Graham Hancock offers some evidence in Fingerprints of the Gods published by Crown Books in 1995. This essentially unsupported theory relies on movement of the lithosphere, the crust and upper mantle of the earth. Hancock advances the notion that Antarctica was once located in a temperate zone capable of supporting an advanced civilization until some unknown catastrophe moved this area of the planet further south by crustal movement. It is now no more than a rapidly growing ice cap and portends another catastrophe by the year 2013, according to speculation from a few pessimists. A map showing the land mass of Antarctica as it was over 15,000 years ago was found in 1513, long before anything at all was known about Antarctica, and its lines of latitude and longitude were remarkably accurate. A cartographer would need a sophisticated knowledge of spherical trigonometry to use these lines. In 1958, the International Geophysical Year, the land mass of Antarctica was measured and conformed in every respect with the map of 1513. Hancock combines this fact with myths of the ancients and the calculus of equinoctial precession -- the slow, conical motion of the earth's axis of rotation, caused by the gravitational attraction of the sun and moon, and, to a smaller extent, of the planets, on the equatorial bulge of the earth -- to predict a catastrophe by 2013. Hancock's evidence, while interesting for its use of astronomy as its underpinnings, deserves primary attention for its discussion of the remains of the pre-Columbian era.

Traces of areas inhabited by people compelled to migrate by a hostile climate and geological changes have been found by archaeologists all along the Pacific Coast of North, Central and South America. In America itself, several distinctive cultures existed at least 3000 years ago in the Middle Atlantic region. As many as 500 Adena culture living sites have been uncovered by modern archaeologists. They have determined that these early sedentary people lived in towns with houses circular in design because of their presumed use for religious ceremonial purposes. The Hopewell culture occurred about the same time as the Adena culture. The Hopewell people also lived in permanent communities deriving their support from extensive agriculture and trade with both Florida, Michigan, and Wyoming. From different nations of indigenous natives, they acquired copper, gold, and other raw materials which their artisans worked into jewelry and other more practical objects. Trade, however, was not all that simple except for commerce using the rivers and boats. The horse, together with huge animals like the mastodon were extinct, until the Spanish brought their own breeds in the sixteenth Century.

Some marine archaeologists suggest an interesting possibility. Once there were boat people who travelled by sea from the Mediterranean area to the land mass to their west. Traces of their presence have been found in South America. Writings cut in obsidian and rock surfaces in the American land mass have been found and translated from Phoenician and Hebrew. A few scholars equate ancient Cretan linguistics with those used by the Mayans, suggesting a common origin. On Easter Island in the Pacific, wooden tablets beneath the huge stones were inscribed with symbols very much like the script used by the Indus Valley civilization. Some of these findings have been dismissed as forgeries, but most scholars disagree. Other evidence of common origin is quite persuasive in areas of knowledge like mathematics, time measurement, and astronomy.

Stonehenge in Great Britain was erected about 5000 years ago. Its builders had a knowledge of mathematics and astronomy of considerable sophistication. They were essentially calendar clocks used to determine date and time. The construction of Stonehenge was in some way governed by astronomy. Its builders used the stones to take sightings on the sun, moon and stars, an exercise that required sophistacated surveying equipment. Mayan architecture discovered in Mexico and urban planning invites comparison with Stonehenge. So precise were the Mayan calendar measurements and observations of astronomy that the Mayans planned and built their cities in such a way that the street pattern lined up exactly with specific celestial movements. All this suggests that Mayans had the same, or even more sophisticated knowledge of mathematics and astronomy as the Druids of Stonehenge. Since it is unlikely that this knowledge arose independently in both places, it is believed that artisans got to the new world by sea from various parts of Europe, Mesopotania and Egypt long before the birth of Christ. There was trade in raw materials, and it makes sense to send artisans for dissemination of knowledge.

Historians have barely begun to recognize or understand the rich cultural intricacies of pre-Columbian America, including Aztec, Inca and Ameridian cultures. In 1987, for example, a huge basalt stone was uncovered in Mexico. It showed some 500 hieroglyphs in Mayan script, which still has not been translated. For a far more detailed discussion of archaeology and the history of pre-Columbian civilization, the book by Jim Bailey, Sailing to Paradise: The Discovery of the Americas by 7000 B.C. is recommended. Bailey is an Oxford graduate and a former RAF pilot during World War II. It was published in 1994 by Simon & Schuster. What Bailey suggests is that the new world of what is now North America alone had a civilization more primitive then -- 1492 -- than Central and parts of South America. In North America, Indian tribes were unbelievably numerous and used some 2000 different languages to communicate, a clearly impossible task for those artisans who normally followed commerce with their knowledge.

Another factor needs to be considered. The climate of North America was inhospitable due to the Ice Age which seemingly did not seem to have affected more temperate zones like Central America and Peru. The land bridge apparently used by Asians and Mongols to cross over to what is now Alaska was probably buried by water at the end of the Ice Age about 6800 B.C. With the melt from glaciers, the water level rose by almost 200 feet. Accordingly, those migrating from Asia to America later had to use boats; the land bridge was beneath the Bering Sea. There is some possibility that the Ice Age may have interrupted the flow of migrants from Asia. If so, it may be one of the reasons later arrivals from either Asia or Europe may have found a civilization less advanced than that of the Aztecs, Mayans, and Incas.

Travel by sea from Western Europe seems to have reached Central and South America before there was much trade with North America, except for copper. This metal in its pure form was essential during the Bronze Age, partly for weapons where copper combined with tin to create bronze. Pure copper was sent from northern Michigan to Europe for smelting. Some of it remained where it was found. Before smelting, copper had to be hammered into shape by hand, and the copper miners left hundreds of tiny stone hammers used by indigenous natives to make useful objects like bowls. While the Vikings are known to have visited North America by the year 1000 and even established some settlements, they brought very little with them in the way of knowledge leading to a higher civilization like that of the Toltecs that predated the Aztecs.

The first half of the fifteenth Century in Europe saw the beginnings of the Renaissance and Gutenburg's invention of printing using movable type. However, nations in Europe were almost constantly at war among themselves.When not at war, those who lived in a French or Spanish countryside were in perpetual danger of starvation. If they migrated to the cities in search of food, they often so crowded the cities that disease spread like wildfire. Waste management did not exist, so human waste simply lay in the streets or flowed into the river.

In Spain, the Inquisition replaced war as an instrument of violence and death. Heresy had to be punished and the truth often could not surface without the cruelest torture. Some 20,000 Jews were put to death by the Inqusition and its torturers. King Ferdinand presided over and had authorized this murderous monstrosity, but Torquemada was the king's agent for carrying out Ferdinand's orders. But Queen Isabella found time to listen to a story from Christopher Columbus. He did not say the world was flat as so many childrens' textbooks erroneously claim. What Columbus did say was that the royal couple needed gold to finance the wars of the Spanish monarchy, and he would find it in the Indies by sailing to the west. European states, and Spain was no exception, had exhausted their coffers with wars and needed a certain source of gold. So, in August, 1492 Columbus set sail and arrived in the new world 32 days later.

He or his crew first saw land in the Bahamas, where the three vessels in the squadron from Spain dropped anchor to be greeted by the Arawaks, indigenous natives of the new world. The Arawaks lived in village communes with well-developed agriculture, including the cultivation of corn, yams and other fruit. They could spin and weave, but they had no work animals or horses. The Arawaks also wore small gold rings in their ears. This fact was to have tragic consequences. While Columbus willingly accepted food from the Arawaks, he took some natives by force to find out where the gold came from. Still in search of an answer to this question, Columbus sailed on to what is now Cuba and then Hispaniola, the island that today is Haiti and the Dominican Republic. Before returning to Spain, Columbus built a fort and left some men behind to find the gold. He also took about 500 Arawaks on board as slaves to be sold in Spain. Only 200 survived the voyage, and the rest died in Spain after being sold as slaves.

On return, letters about Columbus suggested he was treated in extravagant fashion befitting an intrepid sailor throughout much of Europe. However, most of the time he did not know where he was in the Caribbean Sea. On his second voyage a year later, Columbus had seventeen ships with many soldiers and trained dogs to track Indians and, if necessary, kill them. His objectives were gold and slaves. When the Indians were unable to deliver gold, they were either put to death by the Spanish soldiers or put in chains for the trip back to Europe as slaves. In two years, about half the Indians in Hispaniola had died either from disease imported by the Spanish crew or were killed outright, the beginnings of genocide. Most of this information and perhaps the only source on many matters was Bartolomé de las Casas, a young priest present during the conquest of Cuba, who later became an outspoken critic of Spanish cruelty.

What Columbus did to the Arawaks of the Bahamas, Spanish explorers later did to the Aztecs, the Mayans, the Incas of Peru, and the settlers of Virginia and Massachusetts did to the Indians of the Powhatan and Pequot tribes. Hernando Cortés arrived in Mexico in search of gold. Like Columbus, Cortés had a chronicler in his entourage, Bernal Díaz del Castillo. Much of what we know may be found in the letters Bernal Díaz wrote describing the march of death led by Cortés. He and his soldiers killed the Aztecs almost randomly, but with a purpose. He was determined to paralyze the will of the people by a sudden, frightful deed. The deed occurred at Tenochtitlán, a beautiful city where Montezuma ruled the Aztecs. Cortés was greeted in friendship by Montezuma who may have thought this bearded man arriving in a strange vessel was the legendary Quetzalcoatl who had promised to return. Cortés and his soldiers were invited to attend a festive event, the feast of the god Huitzilopochtli. In a crowded hall where dancing was underway, Spanish soldiers turned on the unarmed guests and killed most of them before being driven out by superior numbers of Aztecs. However, the Spanish soldiers left an invisible killer behind, the smallpox bacillus.

Over a period of two months, Aztecs died by the thousands, while Cortés returned with soldiers and laid siege to the once white brilliant city and its dwindling population of diseased and starving people. Cortés had built ships using them to cut off food supplies to this island. Then he destroyed the great aqueduct that brought fresh water to the city. According to David Stannard, author of the American Holocaust, the soldiers of Cortés " burned magnificent public buildings and marketplaces, and the aviaries with their thousands of wondrous birds; they gutted and laid waste parks and gardens and handsome boulevards. The metropolis that the Spanish had just months earlier described as the most beautiful city on earth, so dazzling and beguiling in its exotic and brilliant variety, became a monotonous pile of rubble, a place of dust, flame, and death."

Apologists for this auto da fé at Tenochtitlán accused the Aztecs of ritual human sacrifices of about 20,000 defeated warriors a year. However, in just a few weeks, Cortés and his soldiers had killed about 350,000, including innocent women, children and the elderly, murdering them in a brutal manner, after first starving them and infecting the Aztecs with smallpox. Genocide again. Other conquistadores from Spain gave the same bloody treatment to almost all of Central America for El Salvador, Honduras, Nicaraugra, and Guatemala to Costa Rica and Panama, leaving behind them a legacy of cruelty that lingers invisibly today. They were described as Indians, only because Cortez thought he'd found the Indies. All too often, people are saddled with the names of their conquerors.

The Pilgrims, for example, left England to avoid further religious persecution and some of the other practices later proscribed by the Constitution in a country named after a Portugese explorer, Americus Vespucius.The early settlers in New England and Virginia knew nothing about growing their own food, so they should have been grateful for the presence of Indians. Instead, the settlers followed the same cruel example of the Spanish. In 1585, for example, Richard Grenville landed in Jamestown, Virginia with seven ships. The Indians greeted the new arrivals with great warmth and provided food. However, when one of them stole a small silver cup, Grenville sacked and burned the whole Indian village, including fields of corn surrounding it.

In the sixteenth Century, explorers, whether Spanish or French and later English settlers all found Indians generally peaceful and generous. The Indians from Florida to Massachusetts had a distinct culture of their own and ways of governance unfamiliar to the new arrivals. Howard Zinn in his book, A People's History of the United States described the Iroquois, saying that "land was owned in common and worked in common. Hunting was done together and the catch was divided among the members of the village. The concept of private ownership of land was foreign to the Iroquois. Women were important and respected in Iroquois society, ...and families were grouped in clans and a dozen or more clans made up a village. The senior women in the village named the men who represented the clans at village and tribal councils. They also named the forty-nine chiefs who were the ruling council for the Five-Nation confederacy of the Iroquois....Children in Iroquois society, while taught the cultural heritage of their people and solidarity with the tribe were also taught to be independent, not to submit to overbearing authority."

All of this was totally alien to Europeans, who controlled the family through the father. He in turn was answerable in religious matters to a priest. Women were subservient in all matters. Thus, at the very outset, a clash of cultures was inevitable, and the foreigners won in most cases because of superior weapons. Furthermore, the Europeans were determined to take the land considering themselves as blessed by the Lord in secular matters like seizure of lands. No real effort was made to deal with Indians as equals; they were potential slaves for export in the 16th Century.

In Guatemala, American cruelty has been reported only intermittently by the national press. In El Salvador, the right wing military of today has conducted a campaign against its opposition just as vicious as anything Columbus and later Spanish marauders did in the sixteenth Century. Pedro de Alvarado, one of the leaders of the slaughter in Tenochtitlán even encouraged Las Casas to write letters describing his genocidal exploits. They appear in a book about this, An Account of the Conquest of Guatemala in 1524 edited by S.J. Mackie and published in 1972 by Milford House. What Las Casas wrote was:

By other massacres and murders besides the above, they have destroyed and devastated a kingdom more than a hundred leagues square, one of the happiest in the way of fertility and population in the world. This same tyrant (de Alvarado) wrote that it was more populous than the kingdom of Mexico; and he told the truth. He and his brothers, together with the others, have killed more than four or five million people in fifteen or sixteen years, from the year 1525 until 1540, and they continue to kill and destroy those who are still left; and so they will kill the remainder.

De Alvarado was not alone in this genocidal enterprise. He was followed by others equally cruel. And as elsewhere, disease, enslavement, and outright murder combined to extinguish entire Indian cultures throughout Central America. While Spain had a brief period of Empire, all the gold and silver stolen and shipped back to Spain made only its kings richer. They had more money to hire mercenaries to fight their wars, all but a few of them lost. All that remained in Spain was inflation, and starvation, with the rich richer and the poor poorer. And so it remained until the 1930s, when King Alphonzo XIII was forced to leave his country. Fascist Francisco Franco took over, but not without fierce resistance from Spanish Republicans and American volunteers. The Spanish Civil War was a testing ground for Hitler's weapons. They were used by the soldiers of General Franco in a prelude to World War II in which Spain compromised its neutrality.

When Columbus visited America in 1492, he described its inhabitants asIndians for the same reason as the other early explorers. They all thought they had found the Indies. However, the Europeans brought with them the invisible bacillus of deadly diseases like bubonic plague, smallpox, measles and many other diseases for which the Indians had neither cure nor immunity. Those not killed by settlers or diseases, or exported as slaves were fortunate to have survived at all.

There was never any doubt that the Europeans believed the Indians had to be exterminated. They acted as barriers to an expanding population that needed food. The European settlers were generally incompetent to grow food, and they clearly resented Indian agricultural superiority. The settlers were also shortsighted. To punish the Indians for some imagined misdeed, the settlers simply burned the Indian's corn in the fields or in storage, instead of using it for their own consumption. English settlers even punished their own by executing those who sought food and comfort by living with the Indians who offered both.

This genocidal slaughter continued in Virginia and all of New England for over a century. By the end of King Phillip's War in 1676, the Indian population had been reduced by almost 90 percent in both areas. The Europeans indiscriminately killed women and children in these wars, a policy that was flatly and intentionally genocidal. No population could survive if its women and children were destroyed, and America's settlers carried out the destruction of the Indian culture.

In 1834, Alexis de Tocqueville, a shrewd observer of the American scene described the aftermath in his book, Democracy in America:

In its dealings with the North American Indians, the European tyranny weakened their feelings for their country, dispersed their families, obscured their traditions, and broke their chain of memories; it also changed their customs and increased their desires beyond reason, making them more disorderly and less civilized than they had been before. At the same time, the moral and physical condition of these peoples has constantly deteriorated, and in becoming more wretched, they had also become more barbarous. Nevetheless, the Europeans have not been able to change the character of the Indians entirely, and although they did not destroy, they have not been able to establish order or subdue them.

America would always have a problem with the Indians, as settlers expanded to the west. However, a group of thinkers in Boston had an idea that was appealing to the settlers and their leaders. By 1763, the war among the British, the French, and the settlers had come to an end; only the British colonists stood between the settlers and their freedom from the tyranny of British rule. Britain's Proclamation of 1763 declared Indian lands beyond the Appalachians out of bounds for white settlers, a move that infuriated them. Britain, however, had to pay more attention to the colonies as a source of revenue to pay the costs of its wars in Europe. Great Britain seemed almost constantly to be at war with one or more of the continental nations and had to pay its own soldiers, as well as hired mercenaries. Those who left Great Britain to live a different and perhaps better life in the New World had absolutely no interest in liquidating the British monarchy's war debts. Nor did settlers in America have any representative in the British Parliament to argue for the settlers' interests. For King George III, the fact that his monarchy needed revenue from the colonies was enough. Moreover, colonial trade had become increasingly important to Britain's economy.

Thus, American leaders saw the future clearly in the 1760s, and it was a future without British colonial rule. For the most part, the American leadership was wealthy, having profited from trade and other business ventures. The division of wealth was terribly unequal in the 1760s as it is in the last days of the twentieth Century. This fact allowed the rich merchant class and its spokesmen, like James Otis and Samuel Adams in Massachusetts and Thomas Jefferson and George Washington in Virginia to act together with a decent respect for the grievances of the poor. They were the victims of imperial misrule.

The Privy Council, for example, was central to imperial administration of the colonies. It was a group of royal advisers that from Tudor times (1485-1603) exercised general administrative supervision over the British realm. With respect to the American colonies, the Privy Council was responsible for reviewing colonial legislation and disallowing, in the King's name, such legislation that was inconsistent with the laws of England. Within certain jurisdictional amounts, decisions of colonial courts were subject to appellate review before the Privy Council. Accordingly, the Privy Council was in a position to control colonial initiatives and insure that colonial economic policies were entirely consistent with British priorities.

The intellectual energy of the American Revolution originated in New England. John Locke's Second Treatise on Government was published in 1689, at a time the English were rebelling against their government and setting up a parliamentary government, and it had been widely read in America. Locke must have supported slavery. As a political adviser to North Carolina, he had recommended a government of slaveowners ruled by forty wealthy landowners. Both Jefferson and Patrick Henry owned slaves, and universal equality did not wash well with the working class of New England. During the century and a half between the arrival of twenty blacks in Jamestown in 1619 and the outbreak of the American Revolution in 1776, slavery -- nonexistent in England itself -- spread through all the English colonies. It grew like a cancer, at first slowly, then inexorably as colonists desperate for cheap labor and eager for material gain imported hundreds of thousands of Africans to work in their fields, principally those in the South where cotton was king and tobacco was an expensive new vice in Great Britain.

Before slavery really expanded in the colonies, many settlers used indentured labor. In return for their passage to America, indentured settlers had to work for a period of years before his contract was paid off and he was freed. By 1694, however, indentured labor declined. So the need for slaves increased. By 1770, slaves were estimated to be 39 percent of the population of the six colonies of the south and 4.4 percent of the population of the seven northern colonies. George Washington, Patrick Henry, and Thomas Jefferson, all Founding Fathers of the United States owned slaves, but Jefferson could still say that "all people were created equal" in the Declaration of Independence.

Otis and Adams used the fiery oratory of liberation to appeal to the masses -- No taxation without Representation -- was only one of many calls to action. The point was to mobilize class energy of the poor for the purpose of advancing the political interests of the rich. This was not really deception; it involved a genuine recognition of legitimate lower-class grievances.

Resentment of British colonialism in all its forms from the quartering of British troops, the impressment of Americans to serve on British vessels, unfair taxation and the British use of hired mercenaries to enforce British rule spread from New Hampshire, Massachusetts, Connecticut, Rhode Island to South Carolina, and Georgia, including New York, New Jersey, Pennsylvania, Maryland, Delaware, Virginia and North Carolina. Each harsher measure taken by the British escalated colonial resentment to the point of rebellion. In 1774, the colonists set up the Continental Congress, an illegal body, to govern their affairs, and it was a forerunner of the future independent nation about to be proclaimed in 1776.

On July 4, 1776 the Declaration of Independence was published in Boston with a reading by Thomas Crafts, a conservative who opposed militant action against the British. Its second paragraph was its political statement.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain inalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, that whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government.

The full text downloaded via Internet was prepared by Gerald Murphy and distributed by the National Public Telecomputing Network. It contained a long list of grievances that began by accusing King George III with conspiring to establish an absolute tyranny over the states. The American victory over the British army was made possible by an armed people determined to end British rule, but without a fixed idea of the form of government that would serve the people well. In the new environment the victory had left the people free to design an appropriate form by which they might govern themselves. The Revolution was designed to change the flow of authority -- indeed, the structure of politics as the colonists had known it -- but it was in no way intended to do away with the principle of authority itself. Authority and the way it was exercised had to rest on the consent of the people governed, and a government without essential authority would lead to chaos. Such chaos surfaced during and after the war for independence itself.

The Continental Congress had virtually no authority worth mentioning. However, there were draft riots when it became apparent that the rich did not need to enter the militia; they could buy a substitute. Farmers who enlisted were promised land, and Loyalist land was confiscated and then sold to both tenants and others, converting them to freeholders. However, they later discovered they were no longer paying rent, but had to make payments of interest and principal to banks on mortgages taken out to finance the confiscation of the land in the first place.

Farmers were particularly militant in 1787. They were threatened with seizure of their newly-acquired land for failure to pay their debts. Their resentment led to Shay's Rebellion in Massachusetts. There the legislature declined to issue paper money so debts might be paid. Daniel Shay led the group demanding reform, and there was some violence. A few of Shay's militia were tried, convicted and hung for treason. Shay himself fled to Vermont and was later pardoned. Even so, the concern of landowners was evident. General Henry Knox, a veteran of Washington's army founded an organization of veterans, the Order of Cincinnati, possibly to resist radicalism wherever it might surface. The Order still exists but engages only in annual bouts of nostalgia.

Thus, in May of 1787, the founding fathers of the Constitution gathered in Philadelphia to write it against a background of what must be described as class warfare, or at least the resentment of those without property. The objective of the thirty-nine delegates who finally signed -- fifty-five had been designated -- was the construction of a political framework that has survived for over two hundred years. The Constitution was intended to both protect property against unwarranted expropriation and secure the liberty they had been denied under British rule. The Articles of Confederation were a failure. These articles virtually guaranteed that each state would be an independent entity without real status as a nation. George Washington was made president of the Constitutional Convention. His letter of transmittal of the completed Constitution was sent to Congress on December 2, 1789.

The Constitution itself was a compromise between slaveholding interests of the South and the moneyed interests of the North. It was also a political compromise. The Congress might send a law to the president who might veto it. However, both houses of the Congress could enact the law by overriding the presidential veto which required a two-thirds vote of both the House and the Senate. Article II, Section 2 of the Constitution required the advice and consent of the Senate for approval of Supreme Court justices and "all other officers of the United States" nominated by the president. The president might negotiate treaties with foreign states, but they had to be ratified by a two-thirds vote of the Senate to apply within the United States. Missouri v. Holland, 252 U.S. 416 (1920).

History records that southern planters acquired huge landholdings from the Indians, as we shall see later. These southerners had to bargain for a continuation of slavery, while northerners wanted laws regulating commerce in the huge markets opening up. Both got what they wanted. Another compromise provided that Senators would be elected by the state legislatures, while members of the House were elected by popular vote in each state. It took one hundred and twenty-four years to change this with ratification of the Seventh Amendment in 1913. Politically, this amendment helped break up the party oligarchy in the Senate, since state political bosses found it more difficult to get their candidates elected by popular vote.

By June 21, 1788 the requisite nine states had ratified the Constitution, and it went into effect. However, those who supported its ratification had also promised to add a Bill of Rights to protect the citizens against the excesses of the government. Thus, in the first Congress, the first ten amendments were added to the Constitution, and they went into effect in November, 1791. Perhaps the most significant of these ten amendments were the First, the Fourth, and the Fifth Amendments. The First Amendment protected freedom of speech and religion, the Fourth Amendment protected the citizens against an unreasonable search and seizure of the person or the property without a warrant based on probable cause, and the Fifth Amendment protected the citizens against a taking of private property for public use without just compensation and no person could be compelled to testify against himself in a criminal proceeding.

Article III of the Constitution established the Supreme Court of the United States, and Congress was authorized to create inferior courts. Today, the District Courts in the fifty states have jurisdiction to hear and determine all civil and criminal cases, and an appeal might be taken to one of the twelve United States Courts of Appeals. The Supreme Court may decide to hear an appeal from these appellate courts where a substantial federal question is presented. It may also hear and determine appeals from the highest state court of each state. The Supreme Court also has original jurisdiction of cases brought by one state against another, usually boundary disputes. In a case where a law is alleged to be unconstitutional, a three-judge district court hears the matter, and an appeal may be taken directly to the Supreme Court.

In 1798, the Congress enacted its Alien and Sedition Act of that year, and it troubled constitutional scholars who developed a theory of prior restraint of the press if a court restrained publication without first examining the document to be published. However, the Sedition Act made it a crime to write or say anything "false, scandalous, or malicious" against the government, Congress or the president with intent to defame them or excite popular hatreds against them. James Madison was of the opinion that the Alien and Sedition Act of 1798 was a violation of the First Amendment. On the very dubious theory that the United States had incorporated the British rule of seditious libel, courts upheld this law which was not found in violation of the First Amendment until over a century later in New York Times Co. v. United States, 403 U.S. 713 (1971). This was the Pentagon Papers Case in which the government's wrongdoing was exposed by the press, as it should have been.

Marbury v. Madison, 5 U.S. 137 (1803) was the first case dealing with the court's power to find a law enacted by Congress repugnant to the Constitution, in this case, Section 13 of the Judiciary Act of 1789. The case established a precedent that has been followed ever since. It held that Congress could not enlarge the court's power beyond that provided in the Constitution itself.

Certainly not the first of the early cases heard by the Supreme Court but clearly the most significant was McCulloch v. Maryland, 17 U.S. 316 (1819). Chief Justice John Marshall wrote for a unanimous court that Congress could create a national bank and that a state could not tax this bank, a federal instrumentality. Thus, the Supreme Court could declare state action unconstitutional. It was in the best interests of the nation that Congress should have the means to exercise the powers delegated to it by Article I of the Constitution, and a national bank was a necessary and proper instrumentality to carry out the nation's fiscal powers. Finally, the court held that a state may not tax those instrumentalities to which its sovereign powers do not extend.

The national bank was the result of Alexander Hamilton's drive as President George Washington's Secretary of the Treasury. Congress approved a charter for the bank in 1791. Thomas Jefferson, who would be elected president in 1800, opposed it as an unnecessary extension of federal power. During the presidency of James Madison (1808-1816), a Jeffersonian Congress refused to renew the bank's charter. Following five years of inflation and economic chaos that coincided with the War of 1812, Congress, though still under Jeffersonian control, reversed itself and chartered the Second Bank of the United States. Madison noted that the national bank was constitutional only because Hamilton's bank had never been challenged. He saw the bank as a way of funding the county's war debts. However, when Andrew Jackson became president in 1828, he abolished the bank because it trampled on states' rights.

On December 2, 1823 President Monroe expressed his ideas on foreign policy in his seventh message to Congress. Known as the Monroe Doctrine, it served notice on European powers that the United States considered Latin America its sphere of influence. In part, the president said: "We owe it, therefore, to candor and to the amicable relations existing between the United States and those powers to declare that we should consider any attempt on their part to extend their system to any portion of this hemisphere as dangerous to our peace and safety." By notes delivered to the ministers in Washington of Great Britain, Spain, Portugal, and Russia, President Monroe made his point firmly, noting the differences in their form of government.

The period from 1791 to 1832 was one of chaos and political change. In 1802, for example, Congress enacted and Jefferson signed the Indian Trade and Intercourse Act, a measure that provided there would be no land cession except by treaty with an Indian tribe. Congress thought the measure was essential to protect the rights of Indians whose lands were being expropriated by speculators. Andrew Jackson was one of them. In 1803, Jefferson doubled the then land area of the United States with the Louisiana Purchase of land from France. Andrew Jackson didn't think this was enough, so he persuaded President James Madison that Indian land in Georgia was ripe for the taking. Thus, the War of 1812 was not one fought against England for survival, but a war to expand the land of America into Florida inhabited by Indians and a few settlers, some of them Spanish left over from post-Columbian conquests.

While the Louisiana Purchase doubled the land mass of the United States, there may be a cloud on title to this land. The French conveyed title to the United States. However, the French did not have title to most of this land. Title to the rest of it resided with the Native Americans, the Indians, resting on ancient possession and other principles. This land needs to be the subject of a quiet title action. In fact, Article VI of the Treaty with France states:

Art. VI. The United States promise to execute such treaties and articles as may have been between Spain and the tribes and nations of Indians, until, by mutual consent of the United States and the said tribes or nations, other suitable articles shall have been agreed upon.

Spain ceded to France all the land it ceded to the United States by the Treaty with France. So, the United States acquired all the land covered by the Louisiana Purchase subject to the rights of "the tribes and nations of Indians." The phrase "other suitable articles" in Article VI does not allow the United States to deny its obligations to the Indians.

In 1803, President Thomas Jefferson selected his personal secretary, Meriwether Lewis, to lead a voyage up the Missouri River to the Rocky Mountains, over the Continental Divide, down the Columbia River to the Pacific Ocean. His partner was William Clark. The trip they took has been described well in Undaunted Courage by Stephen E. Ambrose, a book published by Simon & Schuster in 1996. Ambrose had read the Biddle version of the Lewis and Clark journals. Having read this collection, Ambrose concluded that the policy to be followed in subsequent trips by fur traders or settlers was to kill the Indians if they didn't get out of the way of the westward expansion of the United States. Jefferson was not the last president to approve genocide.

Andrew Jackson became a national hero for his exploits in the War of 1812 and in 1814 when he fought and won the Battle of Horseshoe Bend. Jackson's forces fought 1000 Creeks and killed 800 of them with superior firepower and consummate guile. The Cherokees were promised friendship if they helped Jackson, and they did by coming around behind the Creeks and attacking them from the rear. When the fighting ended, Jackson persuaded the president to name him Treaty Commissioner for Indian Affairs. From 1814 to 1824, Jackson negotiated a series of treaties that gave white settlers three-fourths of Alabama and Florida, one-third of Tennessee, one-fifth of Georgia and Mississippi and parts of Kentucky and North Carolina. Settlers desperately needing land would move onto Indian lands. When the Indians complained, Jackson said there was nothing he could do about this trespass; it was a question of states' rights. These land expropriations laid the foundation for the cotton kingdom supported by the labor of slaves. Jackson, was a slave owner himself as well as a liar and speculator not above using bribery to acquire more land. He wore the genocidal mantle of the Spanish conquistadores of the preceding century.

In 1814, Jackson recruited frontiersmen to fight the British at New Orleans and defeated the British Redcoats. Jackson also succeeded in taking land in Florida from the Seminole Indians who from time to time engaged in hit and run attacks on the white settlers that settled on their land. Moving to Tennessee, Jackson was elected to the House and later to the Senate in 1818 where his record was spotty, but good enough to encourage a run at the presidency. He was elected in 1828 as president and served in the White House for two terms. His successor was Martin van Buren.

The Supreme Court did nothing to relieve the plight of the Indians of the nineteenth Century during the Jacksonian presidency. In fact, its record is one of institutional impotency. Johnson v. McIntosh, 24 U.S. (1823); Cherokee Nation v. Georgia, 30 U.S. 1 (1831); and Worcester v. Georgia, 31 U.S. 515 (1832) are only three examples. In Worcester, the court declared a series of Georgia actions as void and repugnant to the Constitution, laws, and treaties of the United States. These included seizing tribal lands, executing Indian citizens who were not allowed to testify in federal court, and requiring the minister Samuel Worcester to have a Georgia permit to live in Cherokee County. The court mandate in this case left the Cherokees with a decision in their favor but with no effective remedy. Jackson is thought to have said, "Chief Justice John Marshall has made his ruling, now let him enforce it." Whether he said this or not, the result was the same. Georgians remained on Cherokee soil enforcing Georgia laws, while Samuel Worcester remained in jail for violation of a Georgia law the Supreme Court had held was unconstitutional. Despite court decisions upholding Cherokee land rights, their land was given away by lottery, and troops drove the Indians into prison stockades to wait for what turned out to be the death march out of Georgia.

In the winter of 1838-39, sixteen thousand Cherokees were driven at gunpoint from their ancestral homeland over what has become known as the "Trail of Tears." More than four thousand of their numbers died on the way to Arkansas where, by the 1835 Treaty of New Echota, the Cherokees acquired title to minerals in the riverbed of the Arkansas River. However, their problems had not ended with this solemn treaty with the United States. In the 1960s, the United States took the Arkansas River for a federally funded project. The real property was valued at $177 million. To date, Congress has never appropriated funds to compensate the Cherokees and the Choctaw Indians for this taking, notwithstanding two favorable decisions of the Supreme Court. Choctaw Nation v. Oklahoma, 397 U.S. 620 (1970) and United States v. Cherokee Nation of Oklahoma, 480 U.S. 700(1987).

In 1824 Andrew Jackson ran for president as did Patrick Henry and John Quincy Adams. None of them got a majority of the electoral votes, so the election was decided in the House under Article II, Section 1 of the Constitution. The House decided in favor of Adams. This setback only whetted Jackson's appetite for the presidency, and he was elected in 1828. As president in 1829, Andrew Jackson expanded the spoils system -- reward your friends by hiring them, an earlier version of patronage. Later, Congress enacted the law establishing the Civil Service to deal with excesses of patronage.

Jackson may have been the first president to deal with nullification, a doctrine by which states claimed power to declare a federal law enacted by Congress unconstitutional. South Carolina led the way in applying this doctrine when the state declared certain tariffs on imports unconstitutional. Jackson sent units of the Army to quell this disturbance which rapidly subsided in the face of force. John C. Calhoun, a fiery orator and vice president in 1828 argued that the Constitution was a compact among the sovereign states whereby they had delegated limited powers to the federal government. If the state believed the government had overreached its authority, it could call a special convention, declare the act in question unconstitutional, and nullify its operation within the state. Following the South Carolina attempt to nullify tariffs, the next three decades saw further arguments on nullification and a state's right to secede became a constitutional right in the South. It saw the end of slavery and demanded the right to secede to protect this institution.

Notwithstanding his outrageous conduct in matters affecting the Indians, Andrew Jackson had learned the liberal rhetoric of the times. In his book, The Age of Jackson, Robert Remini wrote that "Jackson himself enjoyed widespread support that ranged across all classes and sections of the country. He attracted farmers, mechanics, laborers, professionals, and even businessmen." All was not well, however, during Jackson's and Van Buren's administrations. In 1837, the northeast was troubled by the economic crisis that followed completion of the Erie Canal.

Furthermore, Jackson had precipitated the Panic of 1837. In 1836, Jackson had directed all land-agents to accept nothing but specie for land sold to speculators. Specie was coined money, usually with a modest amount of gold. This specie was deposited in banks established by the various states. However, Congress enacted a law distributing $35 million worth of excess funds, the public debt having been paid. Banks had inflated the value of specie deposited with them and made loans based on these inflated values. When government-authorized drafts were presented to the banks for payment to state Treasuries, the eighty or so banks had to call the loans. Together with a steep decline in the price of cotton, the combination led to the Panic of 1837. It lasted about seven years and well into the administration of President Martin van Buren (1838-1842).

In 1843, Dorothea Dix addressed the Massachusetts State Legislature and gave a speech from her notes that shocked the conscience of the legislators. "I proceed, Gentlemen," she said, "briefly to call your attention to the present state of Insane Persons confined within this Commonwealth, in cages, closets, stalls, pens. Chained, naked, beaten with rods and lashed into obedience." (Italics in the original). David Gollaher has written an arresting book, Voice for the Mad: The Life of Dorothea Dix. In his Prologue, Gollaher said that Dorothea Dix was "the first [person] to give madness a human face." With some help from political friends, Dorothea Dix drafted an ambitious measure to set aside 10 million acres of public land that might be sold to provide a perpetual fund for care of the indigent insane. It finally passed both the House and the Senate only to be vetoed by President Franklin Pierce in 1854. The vote to override his veto failed. Pierce advanced constitutional arguments to justify his veto, but in reality the slavery debate heated up with Stephen Douglas proposing a measure to deal with the Kansas-Nebraska dispute which diverted attention from her humanitarian proposal.

To chronicle the status from her Memorial to the Massachusetts Legislature of 1843 and the status of the insane today is not the purpose of this book. However, Mary Jane Ward's Snake Pit of 1959 demonstrates how little progress the nation has made in dealing with its mentally ill population. Most estimates today in 1996 suggest that fully 35 percent of the homeless on the streets of urban America are mentally ill. Governments have consistently have reduced funding for public institutions for the mentally ill.

Only three years after Dorothea Dix's political setback, another case decided by the Supreme Court inflamed both sides of the slavery debate. Scott v. Sandford, 60 U.S. 393 (1957), also known as the infamous Dred Scott Case. Writing for seven justices of the court, Chief Justice Roger Taney held the slaves were property protected by the Constitution, that the Missouri Compromise of 1850 was an unconstitutional exercise of power by Congress, and that Scott, never having been free, was still a slave. This decision triggered violent reaction, unleashing irreconcilable partisan passions and clearly crystallized opinions making civil war inevitable. When it did begin, Ralph Waldo Emerson spoke out in 1862, urging that emancipating the slaves was the best way to solidify the North, a speech brought to Abraham Lincoln's attention.

Ralph Waldo Emerson, a literary giant of the mid-eighteenth Century, had many well known contemporaries, including Henry James, Henry Thoreau, and Thomas Carlyle. Emerson is well known for his writing, but his reaction to the Fugitive Slave Act of 1851 is worth noting.This measure required the states of the North to return to their owners slaves who had escaped from their owners in the South. Five months after its passage by Congress, a black man named Shadrach Minkins was arrested in Boston. He was immediately arraigned. Massachusetts Chief Justice Lemuel Shaw (Herman Melville's father-in-law) refused a writ of habeas corpus, a writ determining the power of the court to detain a person. The court adjourned by noon, but Minkins was spirited away by a group of black members of the Boston Vigilance Committee. The South was enraged.

Soon, another slave from the South, Thomas Sims, was arrested in Boston. This time the authorities took no chances. After Shaw refused to hold the Fugitive Slave Act unconstitutional, Sims was escorted to the ship that took him back to Savannah from where he had fled as a fugitive. On April 19, 1851, the anniversary of the Battle of Concord, Sims was taken ashore in Savannah and publicly whipped. More than any other episode in his life, the Sims case converted Emerson from an abolitionist to an activist. A few weeks after this episode, Emerson gave a speech that called on Massachusetts to honor its revolutionary past by resisting the Fugitive Slave Act. He attacked Daniel Webster in strong abusive terms, accusing him of "taking the bit in his mouth and the collar on his neck and harnessing himself to the chariot of the [Southern] planters." Webster had made an about-face on the Fugitive Slave Act, and this enraged Emerson. In another speech, he wrote that "This has ceased to be a representative government when the statute itself fastens penalties of treason on acts of common humanity." by Robert D. Richardson, Jr. is a wide-ranging biography of Ralph Waldo Emerson. His speeches appear in another book, and requires attention from students of the period.

Still another giant of this period was Abraham Lincoln who was born in 1809. His destiny was surely affected by those around him, including Emerson and many others, even thought it is uncertain if he read any of Emerson's works or even knew him. Lincoln by David H. Donald is the latest of many biographies of this giant; it was published by Simon & Schuster in 1995. Its author noted that Lincoln enjoyed reading and had committed to memory long passages from William Shakespeare's plays. However, Lincoln would have been twenty-eight years old at the time of the Panic of 1837. After a few years as a surveyor, Lincoln ran successfully for the legislature of Illinois after studying for the law. Lincoln supported internal improvements within Illinois, including railroads and canals, but the Panic of 1837 effectively killed these plans, and some people tried to blame the mess of unfinished roads and canals on Lincoln. He did not suffer politically as a result; most people thought it was Stephen Douglas that was responsible, not Lincoln.

During this formative period of Lincoln's life, he was a Whig, a political party formed probably in 1834 in opposition to the Democratic party. It favored economic expansion and a high protective tariff, while opposing the strength of the presidency in relation to the legislature. In 1856, the Republican party was formed in Ripon, Wisconsin, and it spread nationally, at least as to those states that had joined the union about to splinter with the coming of the inevitable Civil War.

Notwithstanding fierce opposition to the Fugitive Slave Act, it quickly became embedded in American culture, in part through Harriet Beecher Stowe's instant bestseller, Uncle Tom's Cabin (1852). About half this novel focused on the plight of the slave Eliza and her son, who escaped across the Ohio River to freedom.

Ableman v. Booth, 62 U.S. 506 (1859). Sherman Booth, a prominent Republican editor, was arrested in Wisconsin for helping rescue a fugitive slave. Booth sought his release from a state court via habeas corpus, and he was released from custody. On appeal, the Supreme Court of Wisconsin held the Fugitive Slave Act was unconstitutional and refused to send a record of the case when it reached the Supreme Court of the United States. Writing for a unanimous court, Chief Justice Taney held that every state in the union was obligated "to support this constitution" and that "no power is more clearly conferred than the power of this court to decide ultimately and finally all cases" arising under the federal Constitution. The Supremacy Clause made the Supreme Court "strong enough to execute its laws by its own tribunals, without interruption from a state or from state authorities."

In 1859, John Brown, a dedicated abolitionist, raided Harpers Ferry to draw attention to the plight of slaves. He was captured by federal troops, tried, convicted and hung in Charlestown, West Virginia. Brown's exploits inflamed tensions between the nation's pro- and anti-slavery factions. To the abolitionists of the North, Brown was a hero.





All contents © 1996 William M. Brinton
All photographs © Archive Photos, New York
All film © Archive Film, New York