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THE BATTALION OF DEATH—OUR UNWRITTEN CONSTITUTION
THE BATTALION OF DEATH—OUR UNWRITTEN CONSTITUTION
COLONIAL WARFARE AND CONSTITUTIONAL DEVELOPMENT
Certainly we must realize that the Declaration of American Rights formed the headwaters of the American constitutional stream which was soon to flow freely.
The spirit of that document springing from the tempo of those days was the important thing. The writing did not constitute a law drawn from on high, but merely an expression of the developing thoughts and ideals of the people. The expression of these thoughts gave life and breath and spirit to the America that was coming into being.
The combination of ink and paper that formed the Declaration of American Rights may not have been so legally sophisticated as that other combination of ink and paper, which was to be adopted fifteen years later and called "The Constitution." But it was a truly constitutional document of basic importance. It marked the toughening fiber of a young, growing nation entering upon unified preparation for war.
Soon guns cracked in Lexington and Concord. That was on April 19, 1775. They were American guns fired at British soldiers; for the Redcoats had been sticking their noses into these towns to ferret out ammunition—thriftily stored for use on these same gentlemen who wore red coats in the name of our then monarch, King George III.
There had been other brushes between American and British, but the Battles of Lexington and Concord are usually recorded as the first in the American Revolution. Thereafter, the Continentals went at their job with method and, for the times, with excellent speed. Ethan Allen and the then patriotic Benedict Arnold captured Ticonderoga on May 10, 1775. There were naval engagements. By June 17th, Washington had been chosen commander-in-chief of the American Army. On the same day, at the Battle of Bunker Hill, a part of that Army gained confidence by fighting.
All of the human thoughts connected with these events, meetings, bloodshed, hardships, writing of couments, became a part of the already living American constitution. The written Constitution later adopted at Philadelphia is by no means our entire constitution. Constitutional liberty cannot be written into one document, or even many documents.
For the unwritten and living concept there is plenty of conservative authority in America. There is, for example, Judge Hatton W. Sumners, Chairman of the Judiciary Committee of the House of Representatives of the United States, said to be the man who finally defeated the Presidents plan to "pack" the Supreme Court, and a true champion iron-ribbed arch-conservative of the arch-conservatives. On Sept. 29, 1937, in Kansas City, he delivered before the American Bar Association an address that has become famous as the "Battalion of Death" speech to "save the Constitution." Here is what Judge Sumners said:
Also,
Let us bear in mind that a living constitution is a series of events, experiences, hardships, emotions, which can be only partially incorporated into written documents; and that the people generally always enact their constitutional documents long after they have actually begun to exercise the rights which they have put on paper. Constitutional documents, whether called ordinances, constitutions, or charters, are milestones of achievement.
A document written after substantial achievement, or in confirmation of what had been done, was the Declaration and Necessity of Taking Up Arms, July 6, 1775—written nearly two years after the Declaration of American Rights, and after two years of warfare and great hardship. Millions should read and study it.
The spirit of that document springing from the tempo of those days was the important thing. The writing did not constitute a law drawn from on high, but merely an expression of the developing thoughts and ideals of the people. The expression of these thoughts gave life and breath and spirit to the America that was coming into being.
The combination of ink and paper that formed the Declaration of American Rights may not have been so legally sophisticated as that other combination of ink and paper, which was to be adopted fifteen years later and called "The Constitution." But it was a truly constitutional document of basic importance. It marked the toughening fiber of a young, growing nation entering upon unified preparation for war.
Soon guns cracked in Lexington and Concord. That was on April 19, 1775. They were American guns fired at British soldiers; for the Redcoats had been sticking their noses into these towns to ferret out ammunition—thriftily stored for use on these same gentlemen who wore red coats in the name of our then monarch, King George III.
There had been other brushes between American and British, but the Battles of Lexington and Concord are usually recorded as the first in the American Revolution. Thereafter, the Continentals went at their job with method and, for the times, with excellent speed. Ethan Allen and the then patriotic Benedict Arnold captured Ticonderoga on May 10, 1775. There were naval engagements. By June 17th, Washington had been chosen commander-in-chief of the American Army. On the same day, at the Battle of Bunker Hill, a part of that Army gained confidence by fighting.
All of the human thoughts connected with these events, meetings, bloodshed, hardships, writing of couments, became a part of the already living American constitution. The written Constitution later adopted at Philadelphia is by no means our entire constitution. Constitutional liberty cannot be written into one document, or even many documents.
For the unwritten and living concept there is plenty of conservative authority in America. There is, for example, Judge Hatton W. Sumners, Chairman of the Judiciary Committee of the House of Representatives of the United States, said to be the man who finally defeated the Presidents plan to "pack" the Supreme Court, and a true champion iron-ribbed arch-conservative of the arch-conservatives. On Sept. 29, 1937, in Kansas City, he delivered before the American Bar Association an address that has become famous as the "Battalion of Death" speech to "save the Constitution." Here is what Judge Sumners said:
There were great men who sat in the Constitutional Convention but it has been withheld from human genius to write the constitution of a living government. It never was done and never will be, in a creative sense. [my italics]
Also,
All the pre-Declaration of Independence row was not that we didn't have a constitution. . . . The row was that we had a constitution and King George and the Parliament were violating it. [ditto]
We didn't have a revolution in this country in an ordinary sense. We had a territorial secession and resort to arms to preserve an existing constitution. . . . [ditto]
Let us bear in mind that a living constitution is a series of events, experiences, hardships, emotions, which can be only partially incorporated into written documents; and that the people generally always enact their constitutional documents long after they have actually begun to exercise the rights which they have put on paper. Constitutional documents, whether called ordinances, constitutions, or charters, are milestones of achievement.
A document written after substantial achievement, or in confirmation of what had been done, was the Declaration and Necessity of Taking Up Arms, July 6, 1775—written nearly two years after the Declaration of American Rights, and after two years of warfare and great hardship. Millions should read and study it.
