“By increasing the obstacles to success, it discourages attempts to seduce the integrity of either.”

Alexander Hamilton Federalist Paper No. 83

Howdy from North Carolina! We just finished filming our We the People 9.17 Contest winner, Katie Strawinski, who won the Best Short Film Category. We filmed her at her school in Georgia and watched her in action as she filmed her football game as the school’s official video photographer. Be sure to check out her short film on our site. She is very talented. Her work was selected by Michael Flaherty, President of Walden Media.

Even though we are officially finished with our “90 in 90,” I realized that I had not written an essay for Federalist Papers No. 82 & 83 because we have been wildly preoccupied on this road trip across America. Thus, I am writing about them today as we journey through North Carolina.

As I read these particular papers, I think about our nation’s youth. Our judicial system is a wonder. It is very easy to take things for granted, such as trial by jury, and forget the many reasons that why this system of government is vitally important – one of the reasons being a fortification against tyranny.

Alexander Hamilton says it best:

“The friends and adversaries of the plan of the convention, if they agree in nothing else, concur at least in the value they set upon the trial by jury; or if there is any difference between them it consists in this: the former regard it as a valuable safeguard to liberty; the latter represent it as the very palladium of free government. For my own part, the more the operation of the institution has fallen under my observation, the more reason I have discovered for holding it in high estimation; and it would be altogether superfluous to examine to what extent it deserves to be esteemed useful or essential in a representative republic, or how much more merit it may be entitled to, as a defense against the oppressions of an hereditary monarch, than as a barrier to the tyranny of popular magistrates in a popular government.”

Our Constitution and our legal system are designed to keep those in power in check.

“Willful abuses of a public authority, to the oppression of the subject, and every species of official extortion, are offenses against the government, or which the persons who commit them may be indicted and punished according to the circumstances of the case. The strongest argument in its favor is, that it is a security against corruption.”

Alexander Hamilton comments on the necessity of a Constitution, which is a boundary for all potential miscreants of power.

“It may be added that these encroachments have generally originated with the men who endeavor to persuade the people they are the warmest defenders of popular liberty, but who have rarely suffered constitutional obstacles to arrest them in a favorite career.”

Another statement of Alexander Hamilton’s from Federalist Paper No. 83 reveals our forefather’s intention to honor each state’s uniqueness and their desire to remain sovereign.

“It may be asked, Why could not a reference have been made to the constitution of this State, taking that, which is allowed by me to be a good one, as a standard for the United States? I answer that it is not very probable the other States would entertain the same opinion of our institutions as we do ourselves. It is natural to suppose that they are hitherto more attached to their own, and that each would struggle for the preference.”

Only by knowledge of such wisdoms such as these may we have the power to preserve our liberties – awareness, acceptance, action.

God Bless,

Janine Turner

August 28, 2010

Federalist Paper No. 85! We did it!! Alexander Hamilton’s words express our endeavor best:

“Thus have I, fellow-citizens, executed the task I had assigned to myself; with what success, your conduct must determine. I trust at least you will admit that I have not failed in the assurance I gave you respecting the spirit with which my endeavors should be conducted.”

What a journey we have been on for the past four months!

I have learned so much from not only our United States Constitution and the Federalist Papers, but from our gracious and talented scholars, Cathy Gillespie, and YOU, our loyal bloggers.

Wisdom beyond words prevails from the Federalist Papers and their warnings beckon our most urgent involvement. A rekindled knowledge of Publius’ belief in the “genius of the people” reminds us of the necessity of our voice, our actions and our constant seeking of the truth.

Alexander Hamilton says it best:

“The unwarrantable concealments and misrepresentations which have been in various ways practiced to keep the truth from the public eye, have been of a nature to demand the reprobation of all honest men.”

It is our duty to get involved in the preservation of our Republic. Times heed not the lazy participant, leaving America to the few. Patriots must prohibit the silent slippery slope that always precedes tyranny.

The Federalist Papers, the issues they faced and the duties required of the people of the 18^th century are as pertinent today as they were then. Alexander Hamilton states:

“This is a duty from which nothing can give him a dispensation. This is one that he is called upon, nay, constrained by all the obligations that form the bands of society, to discharge sincerely and honestly. No partial motive, no particular interest, no pride of opinion, no temporary passion or prejudice, will justify to himself, to his country, or to his posterity, an improper election of the part he is to act.”

At this potential crucial turning of our country and with the need to prevent such a turning, we must join in unity as our Revolutionary forefathers and Constitutional forefathers did. A country divided – falls. We must always remember that we are all Americans. A people who share one of the greatest countries on earth founded on Godly principles and a goodness of spirit that birthed a “majesty of the people.” Thus, we must be true to our principles, yet never wedge such a divide as to crater our country.

Alexander Hamilton, once again, brilliantly states the mission for his constituents and for his posterity:

“Let him beware of an obstinate adherence to party; let him reflect that the object upon which he is to decide is not a particular interest of the community, but the very existence of the nation.”

I love America. I love her goodness, even her failures – for it is through her failures that we have continued to grow and mature into the thoughtful, conscientious, and consistently creative people that we are. It is our United States Constitution that has given us the platform to both preserve and amend our laws of government. It is through our tribulations that we have triumphed. It is because of God and subsequently the “genius of the people,” that we have defined our own destiny.

As we walk through these challenges times, let us not forget the onslaught of troubles our ancestors both experienced and tackled. They excelled through storms, famine, persecution, indecision and war. At these times they called upon a higher power and He led them to a new level of human dignity and spiritual enlightenment.

We, too, are capable of these things. We need only our faith in God, our fellow citizens and knowledge of the United States Constitution to rise above the mire of mediocrity that we find ourselves today. By a willingness and a desire to preserve our country, our beautiful land and liberty, for ourselves and our prosperity, we will soar on eagles’ wings. We are no less the heroes our forefathers were. We need only to hear the call and heed its needs.

Knowledge is to power what actions are to results. We are the people. We are the roots that feed the branches of government. The tree will not survive without us. May we keep our rights alive. Our Constitution and our Bill of Rights are more relevant today than ever. They protect us from the tyranny that at any time may overtake us and succeed. The enemy is in the field and they may not use the traditional tactics. Sly are their methods of operation.

Let us put the lanterns in the North Church. Let us be the “alarm,” the Paul Revere, that sounds the warning: One if by laziness, Two if by ignorance. We must know our rights; our children must know their rights. Spread the word. We are borne of true grit and determination. In our genes lies the innate knowing of righteousness. We were founded on such callings, from the Mayflower to Bunker Hill to Independence Hall, from the Civil War to World War II to 9/11. Let us never forget. Let us always be grateful for the men and women who have sacrificed to keep our flame of independence alive and let us carry that torch today.

“The unwarrantable concealments and misrepresentations which have been in various ways practiced to keep the truth from the public eye, have been of a nature to demand the reprobation of all honest men.”

God Bless and I thank you for joining us on this remarkable journey, our “90 in 90 – History Holds the Key to the Future.”

Janine Turner

August 24, 2010

In writing about Federalist No. 85 – the final paper in a lengthy series of defenses of the proposed Constitution for the United States of America – it is entirely appropriate that I have just returned from a several day visit to Colonial Williamsburg.  For that historic site epitomizes better perhaps than any other location in America – even perhaps than Philadelphia – the Spirit of Revolution and Reform that swept through the 13 colonies immediately prior to July 4, 1776, and that governed the constitutional discourse, both immediately following victory over the British Empire, and in the wake of the evident failure of those Articles of Confederation that had led the former colonies on their first nervous lap on the road to a full Union. 

To hear once again those now-treasured words of Patrick Henry, Thomas Jefferson, and George Washington, in the very location where they were heard for the very first time, within the context of torn loyalties and divided families, is to recognize that a rare constitutional moment occurred during those immediate pre-revolution years between the passage of the Stamp Act and the military engagements to the North at Lexington and Concord.  To watch as dedicated 21^st century young American visitors reenact key events, eagerly volunteering to serve in General Washington’s miniscule, rag-tag army, in the face of almost certain death and, as bravely defiant Williamsburg citizens, jeering at the Traitor, Benedict Arnold, following his military investment of the capital city of independent Virginia, is to feel pride, even as an Englishman, in the Spirit that will take George Washington’s army to its key victory over the British army of General Cornwallis at Yorktown, on October 19, 1781, and that eventually will make the United States exceptional in the eyes of the world.

So now it is May 28, 1788, almost 12 years since the Declaration of Independence, and 7 years since Yorktown.  Alexander Hamilton, on this, day accepts the honor, and the enormous responsibility, of firing up that Constitutional Spirit in one concluding paper, in what has proved to be a lengthy, and occasionally rancorous, debate between the Federalists and the Anti-Federalists that he had formally initiated in Federalist No. 1, almost one full-year earlier, on October 27, 1787.  Evidently, this is a moment that demands statesmanship of the highest order. 

Will Alexander Hamilton fulfill that awesome destiny that he has shouldered so willingly?  His task is delicately balanced between firing up the spirit of his readers by soaring rhetoric, while yet holding their feet to the glowing embers of political reality that evidently confront the emerging nation.  For, this is not a fairy-tale, where everyone may expect to live happily ever after.  On the other side of the fateful constitutional decision, there will be losers as well as winners, though not every one will yet know on which side of that divide he will eventually fall, or for how long he will so remain.

Hamilton rises brilliantly to his task, blending persuasive rhetoric with common-sense realism in a masterly contribution full of insights for those who would lead their state governments to a final judgment, yet written with a clarity that would be greatly appreciated by the People.  His opening words focus succinctly on the two remaining issues under serious contention:

“According to the formal division of the subject of these papers, announced in my first number, there would appear still to remain for discussion, two points, ‘the analogy of the proposed government to your own state constitution,’ and ‘the additional security, which its adoption will afford to republican government, to liberty and to property.”

Even these issues, Hamilton recognizes, have been fully anticipated and discussed in the progress of the debate.  He dispenses with these remaining concerns in two paragraphs that you can quickly embrace and which I shall here bypass.

The remainder of Federalist No. 85 focuses attention on what I shall call the ‘constitutional spirit’ that ought to govern the People and their state representatives in deciding whether or not to endorse the draft constitution.  At a time well before the emergence of public choice, and extrapolating from a history of failed constitutions, Hamilton asks each individual to appeal to his better angels in approaching the constitutional decision, to raise himself above the level of politics as it is, to a meta-level of rules that will delineate the very nature of the politics that must play out within its limitations:

“Let us now pause and ask ourselves whether, in the course of these papers, the proposed constitution has not been satisfactorily vindicated from the aspersions thrown upon it, and whether or not it has been shown to be worthy of the public approbation, and necessary to the public safety and prosperity.  Every man is bound to answer these questions to himself, according to the best of his conscience and understanding, and to act agreeably to the genuine and sober dictates of his judgment.  This is a duty, from which nothing can give him a dispensation.  ‘Tis one that he is called upon, nay constrained by all the obligations that form the bands of society, to discharge sincerely and honestly.  No partial motive, no particular interest, no pride of opinion, no temporary passion or prejudice, will justify to himself, to his country or to his posterity, an improper election of the part he is to act.”

These are powerful words of persuasion.  But Hamilton does not rely on rhetoric alone.  He knows instinctively, well before a relevant public choice literature has emerged, that individuals require little prodding so to behave.  If the constitution is adopted, together with the amendment process that it prescribes, it will be of long duration, it will survive, indeed, well beyond the life-span of any individual.  Even though each individual may be well aware of where he stands at this time, what he expects to lose and to gain by his actions, he cannot foresee the future.  He cannot know what will transpire for his offspring, and for their offspring, into an indefinite future.  As such, the edge of narrow self-interest is naturally blunted, and a nudge rather than a shove is all that is required for man to rely upon his better angels in the constitutional moment that he immediately confronts.

So what now is left?  The proposed constitution, as Hamilton well understands, is a compromise carefully constructed by a dedicated convention at Philadelphia.  It will not be perceived as perfect, perhaps, by any man, surely not by many.  The urge to make perfect in a naturally imperfect world must be contained, because unattainable perfection must always prove to be the deadly enemy of the feasible best.  Hamilton addresses this issue transparently and to powerful effect, distinguishing between the writing of an entirely new proposed constitution and the amending of a constitution that has been agreed-upon.  Writing again well in advance of public choice insights, Hamilton seizes on the essence of this difference:

“We may of course expect to see, in any body of men charged with its original formation, very different combinations of the parts upon different points.  Many of those who form the majority on one question may become the minority on a second, and an association dissimilar to either may constitute the majority on a third.  Hence the necessity of moulding and arranging all the particulars which are to compose the whole in such a manner as to satisfy all the parties to the compact; and hence also an immense multiplication of difficulties and casualties in obtaining the collective assent to a final act.”Hamilton does not have to remind his readers of the great fortune of the convention in Philadelphia in meeting in a building carefully protected from all external interference – the streets themselves were covered with straw to deaden the sound of passers-by – in meeting under the magisterial leadership of George Washington, in meeting under the brilliant intellectual guidance of James Madison, the Father of the Constitution, with the energetic presence of the First American, Benjamin Franklin.  Such favorable circumstances surely would not be replicated in any second attempt.  In their absence, chaos might well be expected to ensue.

So, Hamilton reminds his readers of how much simpler the Article V amendment process is designed to be, focusing as he anticipates, on one issue at a time, with qualified majority, rather than unanimity, its prescribed mechanism, and with the convention route available to bypass any danger of Congressional resistance to state initiatives.  Hamilton is aware that 7 out of the 13 states are already committed to the great enterprise.  His final paper is a brilliant and ultimately successful exercise to bag the remaining 6.  The threat of anarchy, should the venture fail, proves to be sufficient to mollify dissent and to complete the Union.

Because this is the final Federalist Paper, and I have the advantage over Alexander Hamilton of being able to look back on the constitutional achievement of the Founders, let me close with some brief thoughts on what has transpired over the two centuries and more of its existence. 

The Constitution itself is a triumph, a remarkable document forged by brilliant political philosophers.  Foremost among the Founders was James Madison, who, prior to the Philadelphia convention, studied what was wrong with republics, old ones and new ones, how they failed and why they were failing.  He studied what was wrong, and why they failed, so that he could create a republic that would not fail.  For the most part, he was successful.  The parchment of the constitution is as good as it could be. 

It is now badly tattered, not because the Founders failed, but because their successors too often have twisted its meaning.  The Founders for the most part were devout Christians who understood that man’s creation operated under Divine guidance.  The United States prospered and grew in freedom under Divine Providence.  It has fallen on darker days as secular notions of Manifest Destiny have replaced those of the Divine. 

The United States prospered and grew in freedom when the checks and balances of the Constitution each played their designated role in preserving a strictly limited government of enumerated powers, and when states rights were honored according to the Constitution.  It has fallen on darker days as Congress has relinquished many of its powers to create an Imperial Presidency; and has stretched across the constitutional divide to seize powers that do not exist; and as the Congress and the Presidency, acting in concert, have crushed states’ independence. 

The United States prospered and grew in freedom when the Judiciary honored the words of the Constitution and construed the words of the parchment in accordance with original intent.  It has fallen on darker days since the Judiciary has rendered the words of the parchment meaningless in an attempt to pursue social and economic agendas never contemplated for the federal government by the Founders.

That is why this project on Constituting America is so important at this time of grave uncertainty for the future of this nation.  It is for the youth of America to reaffirm the Spirit of America that has been so sadly disregarded by its elders, and to return the United States to the Divine Providence that is the life-spring of its People’s greatest achievements.

Charles K. Rowley, Ph.D. is Duncan Black Professor of Economics at George Mason University and General Director of The Locke Institute in Fairfax, Virginia.  He is co-author (with Nathanael Smith) of Economic Contractions in the United States: A Failure of Government. The Locke Institute (www.thelockeinstitute.org).  He blogs at www.charlesrowley.wordpress.com.

Howdy from Indiana! We filmed Spencer Kollsak yesterday in Illinois. He is absolutely darling, very bright and we thoroughly enjoyed meeting him and his family. We filmed in front of the oldest log cabin in Illinois, which we thought was very fitting for Illinois, since it is the home of President Abraham Lincoln. Our footage is BEAUTIFUL from all over the country. Our documentaries are going to be awesome in its message, its diversity and its photography. Juliette and I are going to edit the documentaries. It is going to be a huge job but most worthwhile!

We are now on our way to Alabama with a stop through Nashville.

I just read Federalist Paper No. 84. I can’t believe we are on Federalist Paper No. 84!!!! What a journey this has been – amazing, inspiring, educational, and passionately patriotic!

In Federalist Paper No. 84, Alexander Hamilton wraps up the last remaining details regarding the Constitution.

They may be last but they are by no means the least, as a matter of fact, Alexander Hamilton expresses what he believes to be the most important elements.

Alexander Hamilton states in Federalist Paper No. 84:

“The establishment of the writ of habeas corpus, the prohibition of ex-post-facto laws, and of TITLES OF NOBILITY, TO WHICH WE HAVE NO CORRESPONDING PROVISION IN OUR CONSTITUTION, are perhaps greater securities to liberty and republicanism than any it contains.”

When one denounces the Constitution as irrelevant or antiquated, they need only look at Federalist Paper No. 84 and these three basics of Republicanism.

Habeas Corpus: the civil right to obtain a writ of habeas corpus as protection against illegal imprisonment.

A violation of this basic right is a major tactic of a dictator, a principle of tyranny. The dictator imprisons anyone he wishes for any reason and in this way he stifles opposition, maintains control and dwarfs inspiration, creativity and advancement of mankind. Fear is the great silencer of life and intimidator of spirit.

The subsequent preserver of freedom is the prohibition of ex-post facto laws. The prohibition of ex-post facto laws is a vital principle of liberty. It protects Americans from the threat of reprisal of punishment. Dictators use this to perpetually punish or create ways to twist the laws and entrap a citizen in the mire of concentrated confinement.

Nobility, which is the secret wish of any man due to the weakness of human nature which falls prey to the call of power, would then and certainly now, murder liberty and the Republican form of government, if he could do so.

We are so used to our protection from these threats that we know not of the dire straits we would have to contend with if we did not have them. Does this make it not relevant to today? No. It actually makes it very relevant to today, as it protects us against the potential usurper of our liberties. How easily we forget. Yet, we need only look to the recent horrors of Communism, Hitler or modern day dictators, for example, to see the consequences of the violation of these, our brilliant Constitutional, rights.

Knowledge is power. These words from our Constitution and the Federalist Papers call to us. They preserve and protect us. We need only pay heed. Are Americans listening?

Spread the word. America as we know it, depends upon it.

God Bless,

Janine Turner

August 23, 2010

Howdy from Wisconsin! We filmed beautiful Evita Duffy, our Best Artwork winner, in Wisconsin yesterday and now we are traveling, in our Constituting America RV, to Illinois to film our Best Essay winner! Wow. Lost of miles on the road!! We get many honks from drivers as they pass us on the road – fellow Constitutionalists! Our transportation, FYI, is provided by Voyager Executive Sedan, (www.takeavoyage.com).

Please check out the striking photos, photographed by the awesomely talented Doug DeMark, on our website, check out our videos, the winners works, and be sure to watch our New Music Video of Jacob Wood.

These efforts would not be possible without all of you who have been our patriotic donors.

Federalist Paper No. 81: Alexander Hamilton was a force with which to be reckoned. On his contributions – his drive, determination and brilliant foresight – rests our Constitution and its manifestation. He knew we would need a national constitution even during the Revolutionary war. He had an uncanny way of seeing the big picture. His visionary mind, coupled with the other brilliance of our forefathers, built America.

How is our vision today? Myopia is the mire of a Republic and its democratic faculties. How do the actions we take today, both as citizens and in our government, affect the future of our country? Sacrifice is the one word that best describes our revolutionary forefathers, foremothers, and colonial citizens.

Today, we must also sacrifice, in order to preserve our great country and we must also have vision. Crucial are the efforts and decisions we make as the genius of the people, the roots of the government.

As I travel America the beautiful, and see all of the small rural towns, I realize, that we should

Today, many speak of the Bill of Rights as if it is the whole Constitution, but that is not correct. The first ten amendments to the Constitution have taken on a very different meaning than what was envisioned. In fact, the Constitutional Convention considered and unanimously rejected a motion to draw up such a bill of rights for the constitution its delegates were framing.

In Federalist 84, Alexander Hamilton answers the objection that the proposed Constitution did not include a Bill of Rights. But in this penultimate essay, we learn a key principle of the Constitution and realize why the framers’ intentions and the original meaning of the Bill of Rights is perfectly consistent with the Constitution as a document that limits government in order to secure the rights proclaimed in the Declaration of Independence. 

Hamilton begins by pointing out that the Constitution itself contained several related provisions protecting rights, such as the clauses against ex post facto laws, religious tests, and the impairment of contracts. In creating a limited government by which rights were to be secured and the people free to govern themselves, the Constitution, as Hamilton insisted, is itself a bill of rights.

The more important reason for not including a bill of rights at the national level of government had to do with the difference between the state and federal constitutions. Since states had broader reserved powers, bills of rights in state constitutions made sense: They were necessary to guard individual rights against very powerful state governments. But the federal government only possessed those limited powers that were delegated to it in the Constitution. As such, the federal government did not possess the power to address basic individual rights, so there was no need for a federal bill of rights—indeed, one might be dangerous. Such a bill of rights, Hamilton argued, “would contain various exceptions to powers which are not granted; and on this very account, would afford a colourable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do?”

Put another way, why state in a bill of rights that Congress shall make no law abridging free speech if Congress in the Constitution has no power to do so in the first place? And does a bill of rights that forbids the federal government from acting in certain areas imply that the government has the power to act in other areas? If that were the case, as Madison earlier warned, then the government was “no longer a limited one, possessing enumerated powers, but an indefinite one, subject to particular exceptions.”

Nevertheless, the lack of a bill of rights similar to those found in most state constitutions became an important rallying cry for the Anti- Federalists during the ratification debate, compelling the advocates of the Constitution to agree to add one in the first session of Congress. So Madison, who along with Hamilton had opposed a bill of rights, drafted the language himself to make sure these early amendments did not impair the Constitution’s original design.

The twofold theory of the Constitution can be seen especially in the Ninth and Tenth Amendments: The purpose of the Constitution is to protect rights that stem not from the government but from the people themselves, and the powers of the national government are limited to those delegated to it by the people in the Constitution. They also address the confusion that might arise in misreading the other amendments to imply unlimited federal powers (Hamilton and Madison’s chief concern). While the Ninth Amendment notes that the listing of rights in the Constitution does not deny or disparage others retained by the people, the Tenth Amendment states explicitly that all government powers except for those specific powers that are granted by the Constitution to the federal government belong to the states or the people.

The original purpose of the Bill of Rights—stated by both the Federalists and the Anti-Federalists—was to limit the federal government.  Today, the Bill of Rights mainly serves to secure rights against the state governments—the exact reverse of the role these amendments were intended to play in our constitutional system.

The Bill of Rights is indeed a distinctive and impressive mark of our liberty. Unlike the citizens of many other countries, Americans are protected from their government in the exercise of fundamental equal rights.  But there should be no mistake that it is first and foremost the constitutional structure of limited government—the great theme of The Federalist and the point of Federalist 84—that secures our unalienable rights and the blessings of liberty. 

Matthew Spalding is the Director of the B. Kenneth Simon Center for American Studies at The Heritage Foundation. 

Howdy from Nebraska! We have been traveling across America in our Constituting America RV, filming our winners! We have filmed Jacob Wood in California, (check out his new video on the website – it is produced by Constituting America and directed by me and edited by me and my daughter, Juliette!) Next, we traveled to Arizona where we filmed Jorey Cohen (check out the photos on the website – scroll down). We then traveled to Colorado and filmed Joseph Valencia and onward to the bottom of the Rockies, the great Continental Divide, to film Halley Moak! Check out our website for updates.

We are trying to keep the site up to date as we travel in the RV – as much as the phone service and electrical outlets will allow. The electrical outlets keep popping! It is rather crazy to be on this tiny RV with six people traveling thousands of miles across the country – literally all across the country – up, down, everywhere. However, when times are exhausting, the absolutely darling children who are our winners light up the whole process.

I pray to God to guide us, as we are servants of His and of America. This is how I feel. This is my purpose – to be of service. As I travel across our great country I am reminded how beautiful it is and I love America and Americans. We are blessed!

Regarding Federalist Paper No. 80. – all can says is “wow!” I wish I had all of the time in the world to study it but I am filming, directing, editing and traveling so I am a wee bit busy. As I read the paper I realize how huge our country has become since its inception and how large our government has become. I have to question whether it is still the “weakest” branch of the government. When Juliette, Cathy and I visited the Supreme Court recently, the guide talked about how John Jay left his position as Supreme Court Chief Justice, to become governor of New York.

Today, we consider this decision with incredulous wonder. Why would he leave the Supreme Court to become governor of New York? It is because at that time, the office of governor was more powerful than that of a Supreme Court Justice – and this was the intention of the Constitution.

In modern times, the office of Supreme Court Justice is considered one of the highest in the land and one of awe.

The only way this misplacement of powers may be revisited is by becoming aware of the true intention of the court. Knowledge is power.

In Federalist Paper No. 80, Alexander Hamilton writes of the importance of the uniformity of reason within a nation, hence, the importance of the Constitution. A nation must have a reference point, a synchronicity of laws. Without this, there is no center, no focus. It is on this very point that I believe the writing of our United States Constitution was just as monumental of a miracle as our victory in the Revolutionary war. Unity is important in all endeavors but most importantly in worthy endeavors.

In Federalist Paper No. 80, Alexander Hamilton expresses his opinion:

“The mere necessity of uniformity in the interpretation of the national laws, decides the question. Thirteen independent courts of final jurisdiction over the same causes, arising upon the same laws, is a hydra in government, from which nothing but contradiction and confusion can proceed.

Alexander Hamilton thoughts and words in his fourth point of Federalist Paper No. 80 is mesmerizing:

“The fourth point rests on this plain proposition, that the peace of the WHOLE ought not to be left at the disposal of a PART. The Union will undoubtedly be answerable to foreign powers for the conduct of its members. And the responsibility for an injury ought ever to be accompanied with the faculty of preventing it.”

Two phrases stand out in this phrase,

“The peace of the WHOLE ought not to be left at the disposal of a PART.”

And

“And the responsibility for an injury ought ever to be accompanied with the faculty of preventing it.”

With the difficult times that we are facing as a nation, a focus upon the true intentions of our founding principles is paramount.

Understanding the intrinsic values of our foundation as a country will be the only thing that will sustain us in times of attack, whether external or internal, physically or culturally.

I thank you for joining us. Please read the Constitution with your children, family and friends and for that matter, anyone you encounter.

God bless,

Janine Turner

August 16, 2010

Federalist 83, written by Alexander Hamilton and published in July of 1788, singles out opposition to the new Constitution due to the lack of a clause requiring jury trials in civil cases.  At the time, some opponents claimed that the Constitution’s notable silence on the issue meant that the use of a jury was abolished in civil cases, while extreme opponents argued that trial by jury in criminal cases was prohibited, which is quickly corrected in Federalist 83.  In this Paper, Hamilton shows the difficulty of inserting a phrase affirming juries in civil cases into the Constitution and that a jury is not beneficial in every situation.

From the beginning, the Constitution mandated jury trials in criminal cases (Article II, Section 2: “The trial of all Crimes… shall be by Jury…”), though it was silent on civil cases.  There was no significant opposition to this, as it was commonly agreed that juries in criminal cases provided, at the very least, an important “safeguard to liberty,” since they protect citizens against arbitrary rulings and “judicial despotism.”

However, opponents of the Constitution used old legal maxims in an attempt to prove that the Constitution’s silence implied prohibition of juries in civil cases.  One phrase that Hamilton mentions is: “’The expression of one thing is the exclusion of another.’”  Hamilton pointed out that the phrase was taken out of context and that applying it to this particular situation forgets the common sense our judicial system was built upon.  This common sense, as understood in the legal system, would say that giving a constitutional mandate for a jury trial in criminal proceedings does not deprive the people (or the legislative power) of the ability to call for a jury in civil cases.

Following Hamilton’s refutation of the assertion that the Constitution abolishes jury trials in civil cases, he shifts to his main arguments.  The most important point Hamilton makes about the non-necessity of a clause regarding trial by jury in civil cases is that the Constitution does not alter the way states use the institution of the jury.  Even today, each state has its own court system, and different courts to deal with certain kinds of issues (for example, the state of Texas has two Supreme Courts – one for civil cases and one for criminal, while other states just have one Supreme Court).  While some of the states’ court systems bore similarities, they were all distinctly different. Until the Constitution, each state had run independently and developed systems of state government.  This was important because prior to the ratification of the Constitution, the U.S. was governed by the Articles of Confederation which gave the federal government almost no authority except in issues of foreign relations and war. While the need for a stronger federal government was apparent, tensions arose over the tradeoff between decreased states rights’ and increased federal powers. 

Even so, two states offered propositions affirming jury trials in civil cases for addition to the Constitution.  The first proposition, brought by Pennsylvania, reads: “’Trial by jury shall be as heretofore.’”  However, before the Constitution, the federal government had no judicial power, so to say that the institution of trial by jury should remain as it was previously meant precisely nothing.

The proposition from the Massachusetts convention says, “’In civil actions between citizens of different States, every issue of fact, arising in actions at common law, may be tried by a jury if the parties, or either of them request it.’”  According to Hamilton, this suggestion infers that among civil cases only those dealing with common law merit a jury trial.  Hamilton notes that if that was not Massachusetts’ intention and the convention believes there to be other cases which call for a jury but chose not to incorporate, then it proves his point on the difficulty of addressing the issue in the Constitution.

Propositions like these demonstrated the difficulty of inserting into the Constitution a clause providing for jury trials in civil proceedings that would have broad approval.  Since each state had its own legal system, states would be forced to change in order to comply with the Constitution or, put simply, confusion would erupt.  If a clause was added, it would probably codify the court system of one state, while many of the other states would have to change their systems extensively to be in compliance, which would surely inspire “jealousy and disgust.”

Hamilton, though, does not merely encourage opponents to support the Constitution as is because it is so difficult to insert a jury clause on civil cases; he argues that a jury isn’t always needed, and is sometimes even detrimental.  In some cases, intricate knowledge of the law is required to make a good decision, such as those that call into question foreign relations and equity, or fairness in the law.  Ultimately, juries cannot be expected to have an in-depth understanding of complex areas of the law and apply it correctly.  And since juries consist of citizens who lose time from their jobs, they also cannot be expected to sit on a jury for an extended period of time.  While juries are crucial in criminal cases, Hamilton finds that in civil cases their only benefit comes in “circumstances foreign to the preservation of liberty.”

All citizens now have the right to a jury trial, though they can waive the jury.  Some civil cases never have a jury trial, because juries are only needed in cases where the facts are in dispute.  The Seventh Amendment to the Constitution affirms citizens’ right to a jury trial in cases of common law, which modified and clarified the existing system.

Today, we can look back to our founding documents, such as the Constitution, and see how the Framers diligently strove to preserve the liberty that a jury trial system provides.  Only a handful of countries guarantee their citizens the right to a jury in all cases, including civil proceedings.  The rest prefer that only judges make decisions, which lends itself to elitism and, as Hamilton noted, to corruption.  The American system put forth in the Constitution truly seeks to protect everyday citizens and keeps the power in the hands of the people, which is yet another reason this country is so free.

Kelly Shackelford, President/CEO of Liberty Institute, is a constitutional scholar who has argued before the U.S. Supreme Court and other courts across the country and has testified before both houses of the U.S. Congress.  Jennifer Grisham is director of media at Liberty Institute.  The Institute fights for First Amendment and Constitutional freedoms in the courts and legislature, has won significant landmark victories on religious liberty, and currently represents over 4 million veterans and all the major veterans’ groups in the famous Mojave Desert Memorial Cross case.  For more, visit www.LibertyInstitute.org.

In Federalist 82, Alexander Hamilton continues his defense of the federal judicial arrangements proposed in the Constitution, focusing here upon the relation between the national and state judicial systems. In brief, Hamilton argues that the jurisdiction of the national and state courts is concurrent with respect to any issue not strictly forbidden to the states by the Constitution or laws. To understand the doctrine of concurrent jurisdiction, a brief look at the power structure elaborated in the Constitution will be helpful.

The Constitution establishes three main branches of government. In Article I, Section 8, specific lawmaking powers are assigned to Congress. In Article II, Sections 2 and 3, executive powers are assigned to the President. Judicial power is assigned to the Supreme Court (and lower federal courts that Congress chooses to establish) in Article III, Section 2. The judicial power is precisely stated to be the power to decide cases and controversies arising under the Constitution, laws and treaties of the United States.

After establishing and assigning powers to the national government, the Constitution then places some limits on how national power can be exercised. This is done first in Article I, Section 9, where the government is denied the power to pass ex post facto laws or bills of attainder, for example. Article I, Section 10 places a similar set of limitations on the state governments. After the Constitution was adopted, the First Congress proposed twelve amendments, ten of which were adopted. These amendments, now referred to as the Bill of Rights, were designed to impose additional limits on the national government.

The final article in the Bill of Rights is the Tenth Amendment. This provision is declaratory, meaning that it simply states what was already implicit in the Constitution. It reserves to the states all powers not assigned to the nation (e.g., in Articles I, II, or III) or denied to the states (e.g., in Article I, Section 10). Some powers granted to the nation are obviously allowed to the states as well (e.g., taxation, general law enforcement, and application of law by courts). These are called “concurrent” powers.

 Hamilton’s argument in Federalist 82 is simply that one of the concurrent powers shared by both the state and national judiciaries is the power to apply federal law in cases properly arising in the courts. This means that state courts are empowered to decide federal questions (whether constitutional or statutory) in the first instance, subject to appeal to the U. S. Supreme Court or to inferior federal courts that Congress chooses to establish. This reading of the Constitution is necessitated by the fact that the Constitution itself established no inferior federal courts at all and severely restricted the Supreme Court’s trial jurisdiction to a narrow range of cases. 

This reading of the Constitution is also necessitated by the very nature of judicial power. According to Hamilton, “The judiciary power of every government looks beyond its own local or municipal laws, and in civil cases lays hold of all subjects of litigation between parties within its jurisdiction, though the causes of dispute are relative to the laws of the most distant part of the globe. Those of Japan, not less than of New York, may furnish the objects of legal discussion to our courts. When in addition to this we consider the State governments and the national governments, as they truly are, in the light of kindred systems, and as parts of ONE WHOLE, the inference seems to be conclusive that the State courts would have a concurrent jurisdiction in all cases arising under the laws of the Union where it was not expressly prohibited.”

When concurrent powers exercised by both the state and national governments conflict, Article VI of the Constitution grants supremacy to the nation, stating that “This Constitution, the Laws Pursuant to it, and federal Treaties are the Supreme Law of the Land, anything in the constitution or laws of a state to the contrary notwithstanding.” Thus state judges are instructed to invalidate conflicting state laws. If they fail to do this, Article III, Section 2, which extends national judicial power to all cases arising under the Constitution, empowers the federal courts to overrule the state courts.

In the Judiciary Act of 1789, Section 25, the First Congress enacted Hamilton’s understanding of concurrent jurisdiction explicitly, authorizing the United States Supreme Court to reverse or affirm any judgment of a state’s highest court in which a national law is invalidated or in which a state law is upheld against a federal constitutional challenge. In other words, if a state court invalidates a national law, then the Supreme Court is authorized to reverse or affirm that state court decision. This means that the concurrent jurisdiction of the state and national courts extends even to federal constitutional issues.

The bottom line in Hamilton’s argument about concurrent jurisdiction is that there is no strict separation of national and state judicial authority under the Constitution. The Founders envisioned a more flexible arrangement that allows courts to draw upon all legitimate legal authorities and sources in order to resolve disputes peacefully. That is the essence of the judicial function.

Robert Lowry Clinton is professor and chair of the Department of Political Science at Southern Illinois University Carbondale.

It’s easy to think that the Federalist Papers, written 222 years ago, are dusty, outdated ramblings of men in wigs. The truth is, its issues still arise today. In his fourth of five essays on the judiciary, Hamilton addressed concerns that the proposed Supreme Court might become the supreme branch of government because it had the power to interpret laws passed by Congress in any way it thought proper. Opponents feared that the court’s decisions would not be subject to revision by Congress.

Hamilton pointed out that nothing in the Constitution empowered the federal courts to “construe the laws according to the Constitution.” He said that “the general theory of a limited Constitution” meant the courts must overturn a law if it violated the Constitution. Hamilton called it a “phantom” to expect that the Supreme Court would become the supreme power. True, the Court may get it wrong from time to time, but it could never rise to an alarming level of judicial activism. And, anyway, the legislative branch could overrule an objectionable court decision through subsequent legislative acts.

Unfortunately, history has proved Hamilton at least partially wrong. The Supreme Court has done quite a bit more than strike down unconstitutional laws or misinterpret others. Take segregated schools, as an example.  In Brown v. Board of Education (1954), the Supreme Court held that separate but equal public schools violated the Fourteenth Amendment Equal Protection Clause.  No one but a racist would argue that Brown’s public policy outcome was not the right one. Students should not be assigned to a school because of race. The question, however, is whether the Supreme Court’s decision was a proper exercise of its powers, or a case of judges making law.

Authors Woods and Gutzman in Who Killed the Constitution?, point out that Justices Frankfurter and Jackson conceded that they could not find  anything in the original purpose of the Fourteenth Amendment that warranted the Court’s decision in Brown. Jackson said that the Court should just admit that it was “declaring new law for a new day.”  At least according to these jurists, Brown was definitely not a case of simply declaring a law unconstitutional.

In Brown II (1955), the Court decided how to solve the problem of segregated schools declared unconstitutional in the first Brown case. The Court ruled that segregated state schools should be ended “with all deliberate speed.” But how?

North Carolina’s answer was to make school assignments based on residence, not race. In Swann v. Charlotte-Mecklenburg Board of Education (1971), the Court held that racially identifiable schools could not exist. Students must be bussed according to race to achieve integration in the schools. In other words, if a school was clearly black, white children would be bussed to that school to balance the racial inequity, even if the school’s neighborhood was identifiably black.

Unfortunately, the Swann court ignored the plain language of the 1964 Civil Rights Act, where Congress defined “desegregation” as “the assignment of students to public schools…without regard to their race [and] shall not mean the assignment of students to public schools in order to overcome racial imbalance.” [Italics mine]

To be clear, integrated schools are desirable. But was it within the Supreme Court’s constitutional power to achieve that end through racially-based bussing? If Hamilton was right, and we need not fear the Court construing laws according to its own whim, then the Court acted unconstitutionally. Congress clearly acted to prevent bussing according to race when it passed the Civil Rights Act. Hamilton warned us that Congress could always overcome an objectionable court opinion by passing laws. But that’s exactly what Congress seemed to be doing. The Court ignored Congress’ definition of desegregation, preferring instead its own definition.

Isn’t this much ado about nothing? After all, the Court arguably accomplished the right result, only faster than Congress could do. It does matter. The issue goes to the heart of our republican form of government. The United States is not an oligarchy, where power is vested in a small group—in this case, the United States Supreme Court. Such forms of government are dangerous and have resulted in disastrous consequences. In fact, author George Orwell warned of such danger in his novel 1984. No, the United States is a republic, where officials are representatives of the people, who must govern according to the limits of the Constitution. That includes the United States Supreme Court.

Jeffrey Reed, a professional orchestra conductor, holds a degree from the Louis B. Brandeis School of Law. Before beginning his music career, he practiced law and  taught constitutional law at Western Kentucky University in Bowling Green, Kentucky, where he resides.