Tom Burrell Liberty and Common Consent

Magna Carta and Due Process of Law

Magna Carta and Due Process of Law: The Road to American Judicial Activism

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Privileges and Immunities and the Journey from the Articles of Confederation to the United States Constitution: Courts on National Citizenship, Substance, and Antidiscrimination, 35 Whittier L. Rev. ---- (2014), available at
December 2014
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  • Rising Sun

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    We are all familiar with the final draft of the Constitution.  But not so many are aware of the fragile state of the union going into the Constitutional Convention.  The Articles of Confederation were ineffective and were being violated by the states.  The union had no effective means of enforcing its provisions.  States were violating federal treaties and disregarding Confederation legislation.  Moreover, the internal strife between North and South and small and large states made reaching compromise extremely difficult.  Eventually, the Framers were able to navigate the complexities by compromising on the manner in which the two branches of Congress voted.  The first branch would be by apportionment, with a number of representatives roughly based on the number of  inhabitants in each state.  The second branch would have two senators per state appointed by the states.  This equality of the states provided a means for the small states to defend themselves and their interests against the majorities of the larger states.  (The method of appointing senators was changed, however, by the Seventeenth Amendment.)  Benjamin Franklin, 81 years old, played a large part in the compromise.  Franklin was universally appreciated for his wisdom.  Here is a quote from him just after the signatures were applied to the final draft:

     The members then proceeded to sign the instrument.  Whilst the last members were signing it[,] Doctr. Franklin[,] looking towards the Presidents Chair, at the back of which a rising sun happened to be painted, observed to a few members near him, that Painters had found it difficult to distinguish in their art a rising from a setting sun.  [“]I have,[”] said he, [“]often and often in the course of the Session, and the vicissitudes of my hopes and fears as to its issue, looked at that behind the President without being able to tell whether it was rising or setting:  But now at length I have the happiness to know that it is a rising and not a setting Sun.[”]

     2 Max Farrand, The Records of the Federal Convention of 1787, at 648 (3d ed. 1966).

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    Published on December 27, 2014 · Filed under: Quotes, Uncategorized;
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