The Principal Office of Government

Page 1

P.O. Box 300464

St. Louis, Missouri 63130

(314) 604-6621

Article I, Section 2 of the Missouri Constitution: The Principal Office of Government A speech by Dave Roland, delivered on January 4, 2012, at the Consent of the Governed Rally at the Missouri State Capitol “All constitutional government is intended to promote the general welfare of the people; all persons have a natural right to life, liberty, the pursuit of happiness and the enjoyment of the gains of their own industry; all persons are created equal and are entitled to equal rights and opportunity under the law; to give security to these things is the principal office of government, and when government does not confer this security, it fails in its chief design.”— Article I, section 2 of the Missouri Constitution.

One of my favorite professors used to say that a text can only truly be understood in its proper context. And unfortunately, what we find a lot of the time when we’re talking about constitutional issues is there’s not as much understanding as there needs to be about why these provisions exist. When it comes to Article I, section 2, history tells us exactly why this provision exists. If you think back, this section was not part of the original Missouri Constitution. Missouri’s first constitution was written and ratified in 1820; this provision was largely added in the constitution of 1875. And so we have to think about what happened between 1820, when there was no provision stating the “chief design” of government, and 1875, when the people felt it necessary to clarify what the “chief design” of government was. One hundred and fifty years ago, this state was in crisis. We were on the edge of the Civil War. Missouri was a slave state, and most of the other slave states had already seceded from the Union. There was a very fraught debate in this state about whether it would remain part of the Union or whether it would follow the other slave states into the Confederacy. In 1860, the people of the state made a momentous choice in their elections, electing a pro-Southern governor -1-

and a General Assembly with a pro-Southern majority – but at the same time, the voters did not want those people to decide the state’s fate when it came to their connection to the Union. They assigned a special convention to address this question, and the people they elected as delegates to this convention wanted to stay with the Union; there was not one delegate elected to the convention who advocated a move toward secession. Nevertheless, there was a confrontation between this pro-Southern governor and the Union military commander in St. Louis, and the Union forces sent an army to Jefferson City. When that happened, the governor, most of the General Assembly, and a significant portion of the convention that had been called, packed up and fled to western and southwestern Missouri. So when this happened, there was effectively a complete collapse of constitutional government in Missouri. We went from having a constitutional system where the people elected their leaders, to the convention assuming the power of government, deposing the elected officials, and then starting to pick and choose who would get to make the laws in the state. This is a profound problem. One of the first things this convention did was to say that anyone who had expressed sympathy for the South in any way was no longer allowed to vote, no longer allowed to serve in certain professions, such as law, ministry, and education. These were extreme restrictions placed on peoples’ ability to earn a living, and that created an intense pushback among the people of the state. Of course, we know how the Civil War ended – the Union won – and the people who had assumed control of the state continued that control. They imposed a new constitution in 1865, writing into that constitution that unless someone met the government’s requirements, they were not allowed to vote or to earn a living in a wide array of professions. So that’s one of the major problems that Missouri was confronting, was the loss of constitutional government, this arbitrary control by the convention, and most importantly the Radical Republican government’s decision that it could completely deny someone’s ability to earn a living in a profession. This was not the only problem that Missouri faced. Even prior to this usurpation of Missouri government and the dissolution of the constitution of 1820, there had been some significant problems with the way government was taking place in Missouri. In particular, you had government officials and municipalities choosing to pass laws that favored specific economic interests – particularly railroads. Someone would come along from a railroad company and tell a state or local official that if they would dedicate public funds or credit to one of the company’s projects, it would generate a lot of money for the community. This was taking place for decades in advance of the Civil War, and it accelerated once the Reconstruction government took hold in Missouri and imposed the Constitution of 1865. Corruption was rampant, and there were no constitutional controls on giving away public money or pledging the public credit. It was running many of these governmental bodies into bankruptcy and it required a skyrocketing tax base in order to pay off these bad decisions that were being made. So that’s the second major challenge Missouri was facing around this time. -2-

The third challenge is one that we’ll be more familiar with: the emancipation of the slaves. Missouri had 115,000 slaves in 1860, and by the end of the war these newly-freed slaves were trying to figure out how to earn a living in this new world where they were free. In most of the slave states – although not so much in Missouri – the governments were passing “Black Codes.” Under these laws many newly-freed slaves could work in exchange for room and board, but could not necessarily demand money in exchange for their labor. So at the federal level Congress proposed the Fourteenth Amendment, which includes the “privileges or immunities” clause. That clause was intended to make sure that everyone had a fundamental right to earn a living in a common profession. Those who drafted the amendment wanted to make sure that states could not cut off peoples’ ability to go out and earn by providing useful services to people who were happy to pay for them. This national conversation was taking place at the same time that Missouri was confronting these other challenges. In 1870 Missourians voted out of office the Radical Republican government that had eliminated the franchise for many voters and restricted many citizens’ access to certain professions. The people wanted a new constitution, to reinstate the sort of government they believed to be the birthright of all Americans. So in 1875 they called together a constitutional convention and one of its first goals was to lay out the purpose of government – and that’s where Article I, section 2, comes from. The convention broke this purpose into several sections. The first section established that the purpose of all constitutional government is to promote the “general welfare.” What do they mean by the words “general welfare?” This is also a phrase that pops up in the U.S. Constitution, but it’s not clearly defined – you need to understand this context. By “general welfare” they were saying that government should not operate for the benefit of special interests. The laws are supposed to be for the good of the entire state, they’re supposed to affect the entire state; the General Assembly should not pass “special laws” that only affect or benefit a handful of people. That’s what this provision is talking about when it addresses “general welfare.” The convention next attempted to make sure that under this constitution “rights” cannot be thought of as privileges granted by the government, but rather are inherent freedoms that flow from our Creator. That’s what this provision means when it talks about “natural rights.” And, of course, they echo Thomas Jefferson’s language in the Declaration of Independence, talking about “life, liberty, and the pursuit of happiness.” But most important for the purposes of our conversation today is the clause the convention added to Jefferson’s language: “the right to enjoy the gains of one’s own industry.” This phrase tied into the broader debate nationwide, where you had the folks in Congress talking about the Fourteenth Amendment and wanting to make sure that people were going to be able to earn an honest living and that the states could not cut that off. The language that the Fourteenth Amendment’s advocates used was that people needed to be able to enjoy the fruits of their labor. Senator John Bingham, who introduced the Fourteenth Amendment in Congress, wanted to make clear in the debates over the amendment that the right -3-

to enjoy the gains of one’s industry meant the freedom to work in an honest calling and to be secure in the fruits of your toil. That’s the same language that Missouri adopted into its constitution, establishing it as a fundamental, natural right that people should be able to earn by using their skills and their talents, and they shouldn’t have to worry about the government being able to cut them off from their sustenance. I’d be remiss if I didn’t mention some of the other natural rights that were commonly accepted at the time. Those include the right to acquire, possess and sell property; the right to travel freely; the right to pursue justice in the courts; and the right to be taxed at no greater a rate than your neighbors. These were all acknowledged to be the natural rights that should be the birthright of every American, and this particular list is drawn from a U.S. Supreme Court decision in 1823. These were all established and part of the common parlance of the people who created this section of the Missouri Constitution. When the 1875 convention brought this language into Article I, section 2, they combined it with the idea of equal protection of the laws. As we’ve discussed, one of the challenges that Missouri faced initially was that citizens who had expressed one political opinion were being denied the equal protection of the laws, and on the other side you had citizens who used to be slaves also being threatened with the denial of equal protection of the laws. And so where Article I, section 2, talks about all people being created equal and being entitled to equal rights and opportunity under the law, it’s saying that we’re not going to have any more of this game playing where the legislature establishes a protected group of people as against another group of people. The government has no business providing special favors to any group of people. It’s a completely comprehensive concept of equality, an equality that that does not depend on the government giving something to someone, but rather allowing people to exist on the same playing field. Lastly, Article I, section 2, makes clear that the principal office of government is to secure these liberties. And that’s a powerful statement. Every official in the Missouri government is required to take an oath to support and defend the Constitution. Importantly, they are not taking an oath to uphold the laws of the state. That is no part of the elected officials’ responsibility. Their responsibility is to uphold the constitution. And our meeting here today is so incredibly important because, as Ed Emery said, the words on paper will not magically make things so in real life. If we are going to defend the beautiful principles of liberty that are defined and laid out in our constitution, we must have people who are willing to hold our officials to account. That means we have to be vigilant. We have to talk to our legislative officials and make sure that when they consider a bill, they’re considering it through the prism of Article I, section 2. We’ve got to talk to our executive officials and make sure that whenever they are taking some action or enforcing a law, they are doing it with an awareness of and a commitment to Article I, section 2 of the Missouri Constitution. And perhaps most importantly, we need to be talking to our judicial officials, because while people get concerned about the idea of judicial activism, they forget that the courts are supposed to make sure that when the legislature steps out -4-

of line, when the executive steps out of line, the judiciary is supposed to be the defense for our liberties. We need to reinforce that to our judges. Ed talked about how he couldn’t think of an example of where a tide reversed itself when people started to give away liberty. I want to offer a little bit of hope in that regard, because I believe that’s what Article I, section 2, did. You heard me talk about the history of this state and a time when constitutional governance went out the window, when people were not secure in their liberties or their economic freedom. But the people of this state got together and said that they were not satisfied with that state of affairs. They called for a constitutional convention and they reclaimed their liberty. We have the same authority. We have the same potential. My hope is that, by hearing the speakers today, by prayerfully reconsidering and thinking over these provisions of our state constitution, we’ll find it within ourselves to take the stand necessary to restore these principles of liberty for our state. Thank you very much.