Ideas Of Liberty For A Free People – Guest Essayists: W. David Stedman And LaVaughn G. Lewis

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The following is excerpted with permission from the book Our Ageless Constitution [p.51]

The Spirit That Enabled A People To Transform Their Ideas Of Liberty Into A New Concept Of Constitutional Government For A Free People

“…one must understand something of the spirit of the people who had been experimenting successfully with liberty for over 165 years when the Constitution was framed.”

From 1620, the settlers of America were motivated by a passion for liberty. British statesman Edmund Burke, in 1775, traced the astounding economic development and the unparalleled spirit of liberty of the Americans when he appealed to Parliament for conciliation with its colonies (See: Part VIII – Burke Speech on Conciliation). He said: “…it is the spirit that has made the country…

Examining some of the reasons for the spirit, he continued:

“Religion, always a principle of energy, in this new people is no way worn out or impaired; and their mode of professing it is also one main cause of this free spirit…. This is a persuasion not only favourable to liberty, but built upon it…. This religion, under a variety of denominations agreeing in nothing but in the communion of the spirit of liberty, is predominant in most of the northern provinces…. The Southern colonies are much more strongly and with a higher and more stubborn spirit attached to liberty than those to the northward.”

Burke’s comments shed remarkable light on the American spirit exhibiting itself, even to those in foreign lands, by the time of the American Revolution. His observations are significant for they reveal something important about a people already established in the eyes of the world as lovers of ordered liberty and participants in outstanding progress. Burke described what he called the “temper and character” of the people, saying, “In this character of the Americans a love of freedom is the predominating feature which marks and distinguishes the whole….” Among the reasons for their “untractable spirit,” he said, was their “education.”

“In other countries the people … judge of an ill principle in government only by an actual grievance; here they anticipate the evil and judge of the pressure of the grievance by the badness of the principle.”

In other words, Burke observed that in most of the world, people could only begin to understand an oppressive or bad idea in government after it had been employed to harm them. Americans were different, he said, for they were taught to understand the principles-ideas and principles inherent in human nature, both good and bad-bad ideas before they could be used to oppress them. Possessing such understanding, he said, Americans could detect “misgovernment at a distance and snuff the approach of tyranny in every tainted breeze.” James Madison later expressed it this way:

“The freemen of America did not wait till usurped power had strengthened itself by exercise, and entangled the question in precedents. They saw all the consequences in the principle, and they avoided the consequences by denying the principle. We revere this lesson too much, soon to forget it.”

It is clear that Americans were educated in the ideas of liberty for several generations. As late as 1830, Frenchman Alexis de Tocqueville observed among the general population of America the same high degree of education and understanding of basic principles. “It cannot be doubted that in the United States the instruction of the people powerfully contributes to the support of the democratic republic….” Even in outlying areas, he said, the American “will inform you what his rights are and by what means he exercises them….”

Such understanding was the primary purpose of the education provided to early generations. As Thomas Jefferson stated:

“The most effectual [effective] means of preventing the perversion of power into tyranny are to illuminate …the minds of the people at large, and more especially to give them knowledge of those facts, which history exhibits, that possessed thereby of the experience of other ages and countries, they may be enabled to know ambition under all its shapes, and prompt to exert their natural powers to defeat its purposes.”

According to Jefferson, the people’s study of history would “qualify them as judges of the actions and designs of men; it will enable them to know ambition under every disguise it may assume; and knowing it to defeat its views.”

By 1787, after having endured a long and traumatic struggle for independence and freedom from a government that had become increasingly abusive and oppressive, their understanding of the nature of mankind as revealed through history and their examination of ideas and principles necessary to liberty had equipped them to undertake the establishment of a government for a free people – a government having its very foundation set in the knowledge that the rights and liberty of people are endowed by their Creator and are, therefore, unalienable.

With this concept and these principles firmly fixed in their minds, and with a “stubborn spirit attached to liberty” they were ready, in 1787, to prepare a Constitution for the United States of America.

David Stedman is the retired Chairman of Stedman Corporation. Stedman was a founder of the National Center for America’s Founding Documents and the National Foundation for the Study of Religion and Economics. Stedman is Co-Editor with LaVaughn G. Lewis of Our Ageless Constitution and Rediscovering the Ideas of Liberty. A frequent lecturer on topics relating to the Constitution, America’s free enterprise system and role of the “business statesman,” Stedman holds earned degrees from Duke, Harvard, and Georgetown Universities and is a Distinguished Alumnus of Duke University.

LaVaughn G. Lewis is a former teacher. She served at the Stedman Corporation as Assistant to the Chairman and as researcher and writer. She is Co-Editor with W. David Stedman for Our Ageless Constitution and Rediscovering the Ideas of Liberty, and is a graduate of Pfeiffer University.

Germane – What Should And Should Not Be Placed In A Bill To Keep Legislation Easy To Understand And Appropriate – Guest Essayist: James D. Best

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DOLLAR LIMITATION.—The amount of the penalty imposed by this section on any taxpayer for any taxable year with respect to all individuals for whom the taxpayer is liable under subsection (b)(3) shall not exceed an amount equal to 300 percent the applicable dollar amount (determined without regard to paragraph (3)(C)) for the calendar year with or within which the taxable year ends.

There is a reason few legislators read laws before voting. They’re incomprehensible. The above snippet is only sixty-three of nearly four thousand equally confusing words prescribing the individual mandate for the Affordable Care Act. The total bill ran over one thousand pages. Do you blame Justice Antonin Scalia or House Minority Leader Nancy Pelosi for not reading the bill? This is a perfectly awful bill … and that may be the only perfect thing about it.

The ACA was not an anomaly. The Consolidated Appropriations Act, 2018, frequently called the 2018 omnibus spending bill, is 2,232 pages of similarly confusing text. No individual could possibly understand what’s in the bill.

In Federalist 62, James Madison wrote,

“It will be of little avail to the people that the laws are made by men of their own choice if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is today, can guess what it will be tomorrow.”

Forget ordinary citizens, how do we get lawmakers to understand pending legislation? The Affordable Care Act was 381,517 words, and that doesn’t count the innumerable referenced laws that would also need to be read for a full understanding. In comparison, our Constitution, the supreme law of the land, is only 4,543 words, which high school students can understand (as demonstrated year after year by Constituting America).

The ACA is only one example. Most legislation today is unintelligible. Congressmen and Senators rely on staff and lobbyists to write and then brief them on the content of laws.

Who benefits from laws “so incoherent that they cannot be understood?” Lawmakers, especially, the leadership. Big, heavy, humongous bills avoid accountability. No individual member of Congress can be saddled with responsibility for a vote disliked by his constituency because dozens of other desirable elements provide camouflage and/or shelter.

Despite calls for regular order, “read the bill” movements, and legislative review-time rules, comprehensive/omnibus style bills keep burying those of us who reside outside the beltway. There is an old axiom that laws are like sausages; it’s better not to see them made. But reverting to a bygone era of relatively responsible lawmaking will be difficult because getting reelected is easier when the proverbial sausage is concealed in a vast vat of stew. Politicians love to obfuscate.

How do we force easy-to-understand laws that lawmakers and law-abiding citizens can comprehend? By insisting Congress pass smaller, single issue bills. In the real world, point solutions are popular because they are doable … and results can be measured. If something needs fixing, focus legislation on the broken part, and leave the rest alone until the new law’s effectiveness can be assessed. If there are multiple broken parts, Congress should avoid a comprehensive redesign that allows everyone to get their fingers into the cookie jar. Address one issue at a time. For spending bills, we need to return to the days when Congress separated the required legislation into six or seven clear packages, and then adhere to strict deadlines for each step of the annual appropriations process.

Every elected legislator professes to agree with the above, but massive comprehensive/omnibus bills have become ever more prevalent. If We the People want simpler, single-issue laws, then pressure must be applied to Congress. We need to keep in mind that Congress feels content with the current process, so we shouldn’t demand some kind of grand solution. The big fix will never happen. Let’s start simple, with a single category of law. The Consolidated Appropriations Act, 2018 provides a perfect opening. The president has stated that he would not sign another omnibus appropriations bill, so voters need to hold him to his promise. Tell lawmakers that we support the president’s pledge. The current spending bill funds the government for the remainder of the fiscal year – through September 30.

How convenient. Mid-term election occur on November 6, a mere six weeks after the next appropriations bill.

Voters need to hold everyone to their word.

James D. Best, author of Tempest at Dawn, a novel about the 1787 Constitutional Convention, Principled Action, Lessons From the Origins of the American Republic, and the Steve Dancy Tales.

Length Of Legislation: Why Bills Have Grown Significantly Longer Over The History Of The United States Congress – Guest Essayist: Marc Clauson

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Why is Congressional legislation since the 1980s so lengthy and complex?  Can this and should it be addressed as a problem or is it simply the product of our modern economic and political world?  Those are the questions to be addressed in this essay.  They are not however idle questions.  It does make a difference when modern legislation is so long and sometimes extremely complex and vague, to the citizen who wishes to comply with it but cannot understand it, or to the courts who must interpret it.  Not only that, but when legislation becomes so intricate, this gives the administrative agencies charged with implementing it through regulations and adjudication much more discretion and power than a constitutional system would envision.

To begin, what has happened to Congressional legislation in the last 30-40 years?  It has become both more comprehensive and lengthier, to put it simply.  To give a few recent examples, the Affordable Care Act of 2010 ran to over 2,500 pages in its final draft.  The Dodd-Frank bill was over 1,800 pages in length.  It is not uncommon to see legislation run at least 800 pages and often over 1,000 pages.  In contrast, the 1913 personal income tax bill was 14 pages long.  The original Environmental Protection Act of 1970 ran to four pages.  Before the end of the nineteenth century in fact, even the quantity of laws was comparatively sparse, as government intervened much less in the economic and social arenas of life.

Now we ask why the length of legislation has evolved this way.  Explanations vary.  Some say that in general society and its problems are simply much more complex than before.  Others argue that at their root, the problems are not more complex, but rather Congress is passing more comprehensive and complex legislation in keeping with the gradual shift from classical liberalism to Progressivism or modern liberalism.  In one sense, of course our Western civilization has grown more complex.  Technology has evolved tremendously, markets are globalized, and government has intruded into our lives at nearly every point.  However, do those shifts explain changes in Congressional legislation?  To ask the question another way, even though we have seen certain changes, have the basic solutions to the problems arising from those changes themselves changed?  Moreover, have areas of life that were once not considered ripe for interference by government now suddenly become areas for such intervention, even though the nature of the problems (though not the extent) has not changed?

No doubt, technological and economic changes have made even necessary legislation more complex and therefore lengthier. But let’s explore the ideological shift as a causal factor.  As I said, laws before the Progressive Era began (c. 1880) were generally much less frequent and shorter.  Very simply, government did less, and that fact was not due simply to less developed technology or a less globalized economy.  It was in great part due to a commitment to “constitutional principles” of the Founding era, which themselves were rooted in the twin ideas of limited government and free markets.  It stands to reason that legislation then did not need to be complex or extended.  It could remain relatively simple and, as thinkers such as John Locke and others advocated, clear and understandable to those whom it would affect.  During and especially after the Progressive Era (ending c. 1925) Congressional legislation entered a period of still relative brevity until around 1935-1937, when the New Deal gained significant traction after the United States Supreme Court essentially “opened the flood gates” of legislation by refusing to strike down as unconstitutional what Congress has passed.  We can mark that point roughly as the beginning of much more frequent, intrusive and complex laws.

World War II continued the trend and the post-War era saw little slowdown in legislation, though it did witness the rescinding of some of the more onerous tax laws.  Lyndon Johnson’s “Great Society” reinforced the New Deal and expanded welfare programs massively.  As more legislation was churned out by Congress, the liberal-Progressive ideological mentality paralleled it.  More issues became the focus of legislation, even those previously believed to be off limits to the state.  Many or at least more of those issues were of the kinds that seemed to beg for detailed law making.  In fact in some cases accounting for every possible detail of any object of legislation became the dominant approach.  This was exacerbated by the tendency of members of Congress to insist that their own local or personal interests be accounted for in bills.  Moreover, experts and lobbyists also increasingly were part of the legislative process, and also insisted on their own priorities.  Little effort was made and little incentive existed to cut back on the length and complexity of bills.  Why not satisfy all parties after all and better guarantee passage?  The result is what we see today.

I argue that nearly all of this outcome is due to the gradual but unmistakable ideological shift from classical liberalism/modern conservatism to Progressivism/modern liberalism, even among Republicans.  Bills are now in many cases nearly incomprehensible, full of references to other legislation, ambiguous terms, convoluted legal language and delegation of authority to administrative agencies to issue regulations to carry out the already expansive laws (e. g., the Affordable Care Act contains about 17,000 pages of regulations).  Congress does not possess the political will to reduce this expansion of law.  Nor does it show signs of any desire to simplify laws to make them clearer.  In the meantime, every new law, particularly those dealing with large “chunks” of the economy is destined to be huge and vague.  The solution is obvious: reduce the power or scope of government to its previous constitutional limits.  This may only be possible through either the courts or constitutional amendment.

See Robert Higgs, Crisis and Leviathan: Critical Episodes in the Growth of American Government.  Pacific Research Institute, 1987. 

Marc A. Clauson is Professor of History, Law and Political Economy and Professor in Honors at Cedarville University. Marc holds a PhD from the University of the Orange Free State, SA, Intellectual History and Polity); JD (West Virginia University College of Law, Jurisprudence); MA, ThM (Liberty University, New Testament Studies and Church History); MA (Marshall University, Political Science); BS (Marshall University, Physics); and PhD work (West Virginia University, Economic Theory).

History And Purpose Of Rules In The United States House Of Representatives And Senate – Guest Essayist: Amanda Hughes

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In his Manual of Parliamentary Practice, Thomas Jefferson wrote regarding rules:

“be in all cases the most rational or not, is really not of so great importance. It is much more material that there should be a rule to go by than what that rule is; that there may be a uniformity of proceeding in business, not subject to the caprice of the Speaker or captiousness of the members. It is very material that order, decency, and regularity be preserved in a dignified public body.”

Formally established by law in April of 1789 and chaired by the House Speaker until 1910, the Committee on Rules is one of the oldest standing, or permanent, committees in the United States House of Representatives. It is considered “The Speaker’s Committee” as it is used to maintain order on the House Floor. The House Committee on Rules was established as a standing committee in the late 1840s.

When the First Congress of the United States House of Representatives met at Federal Hall in New York under the new Constitution in 1789, the first Senate also convened. At this time, a rules committee was established to conduct the separate business of the Senate, and in 1874, the Senate Committee on Rules was designated as a standing committee.

“Each House may determine the Rules of its Proceedings,” –Article 1, Section 5, Clause 2, United States Constitution

Rules in the United States Senate contrast more than compare to rules of the House and some interesting differences exist between the House and Senate rules. Proceedings, for example, lie in how each chamber, or body, requires a quorum, conducts debate, refers measures (bills or filed legislation going through the legislative process to potentially become law) to specific committees, places measures on a specific type of calendar for consideration, and votes. The House Committee on Rules is considered powerful, able to do much of anything deemed necessary; there is no such equal committee in the Senate.

The House Speaker, being the majority party leader and presiding officer, is able to govern proceedings, to recognize or not recognize a Member to rise and debate. Requests for the purpose of recognition on the House Floor are typically made based on precedence in order to maintain soundness and continuity of Congress. Debate time on the Floor is limited in the House per Representative, while each Senator is allowed unlimited Floor time to debate including filibuster. On the Senate Floor, the presiding officer must recognize the first Senator standing and seeking recognition. Other Senate leaders determine who speaks next depending on Senate rulings and precedents.

When measures that are not controversial in nature make it to the Floor for consideration, most are approved in the House by “suspension of the rules” which is a procedure the House uses to pass widely supported measures, that prohibits floor amendments and limits debate time, and requires a two-thirds majority for the bill’s passage. However, a similar measure’s passage would be obtained by unanimous consent in the Senate. Another difference is that a legislative day can run for several calendar days in the Senate which tends to recess, whereas the House adjourns at the end of a legislative day. Application of a different process to begin business again depends on whether a recess or adjournment occurs.

Rules introduced in the United States House of Representatives and Senate over two hundred years ago have certainly changed through decades of Congresses. While early versions of congressional rules at times proved unruly and in need of reform as new developments often may, America’s Founders recognized early the necessity for order. They moved first to set systems for properly conducting business. They continued efforts to fill needs for fair and efficient proceedings. In hopes of setting precedents that would not impede their work but instead prove beneficial to the preamble’s “We the People,” the Founders and Constitution Framers looked to affirm that the “First Branch” of American government would exist to serve its citizens.

Amanda Hughes serves as Outreach Director, and 90 Day Study Director, for Constituting America. She is the author of Who Wants to Be Free? Make Sure You Do!, and a story contributor for the anthologies Loving Moments(2017), and Moments with Billy Graham(forthcoming).

Sources:

House of Representatives Committee on Rules – “About the Committee on Rules – History and Processes”
https://rules.house.gov/about

House of Representatives Committee on Rules – “History of the Rules Committee”
https://rules.house.gov/history-rules-committee

United States Senate Rules Administration – “History: Introduction”
https://www.rules.senate.gov/about/history

CRS Report for Congress – “House and Senate Rules of Procedure: A Comparison” https://www.senate.gov/reference/reference_index_subjects/Rules_and_Procedure_vrd.htm

“United States Senate Origins and Development”
https://www.senate.gov/artandhistory/history/common/briefing/Origins_Development.htm

Congress.gov – “The Legislative Process: House Floor (Transcript)”
https://www.congress.gov/legislative-process/house-floor

Congressional Aides: How Staff Assist Congress Members & Help Them Understand Bills – Guest Essayist: Scot Faulkner

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A bill becomes a law only through collaboration, communication, and teamwork.

Members of Congress are pulled in many directions. Members must be Members, which means they attend hearings, participate in legislation via debate and voting, and communicate with their constituents. Members, who want to remain Members, must be perpetual candidates, which means raising funds, working with their campaign team, involving themselves with national, state, and local officials within their political party, and engaging organized special interests that provide funds, endorsements, and resources. Members are increasingly Ambassadors to a sprawling government, meaning their offices are “embassies” representing the interests of their constituents to federal officials and guiding their constituents through the federal labyrinth to obtain government benefits, regulatory relief, and due process.

No one person can handle all these roles. That is why Congressional Staff exist.

Members during the first seventy years under the U.S. Constitution, performed their diverse duties themselves. The Federal government was small and legislative sessions were short.

Just before the American Civil War, the size, scope, and complexity of the Federal Government had grown to a point where full-time staff began supporting Members. The first staff were attached to major committees. Many of these were clerical staff to take notes and help draft legislation. Even during the busy period of Post-Civil War Reconstruction and Westward expansion, such as 1867, the Congress only passed 30 bills and 41 resolutions a year.

By the end of the 19th Century Congress had only 146 staff members: 37 Senate personal staff, 39 Senate committee staff, and 62 House committee staff (37 of whom only worked during congressional sessions). In 1893, the House approved the first personal staff for its Members.

The Populist and Progressive movements ignited government regulation of America’s burgeoning economy. New federal agencies meant dramatic increases in spending and the need for vigorous Congressional oversight of Executive Branch activities.

Except for limiting government during the Administration of President Calvin Coolidge, the role, scope, and size of the federal activities grew rapidly and never stopped. Congress introduced, considered, and passed more and more laws facilitating this expansion. By the early 1970s over 26,000 legislative bills and resolutions were being introduced during each two-year Congress.

Congressional staff expanded to support Members. Members, torn by their multiple responsibilities, deferred increasingly to their staffs.

Today, approximately 14,000 employees work on House and Senate leadership, committee, and personal staffs.

Each Congress begins, on its first day of existence, with establishing its governing rules. This includes setting personal staff levels and authorizing a standard amount funding each office to pay that staff.

The personal staff of a Senator or Representative are people who take the lead in handling the multiple roles of each Member. Staff conduct “Case work” to help constituents receive the services, benefits, and due process they deserve. Receptionists welcome visitors and help them access special tours and events through the Nation’s Capital. Administrative and technical staff manage office operations and information resources. District staff provide similar services within the Members’ home area, including attending countless meetings with local officials and interest groups.

The heart of a Congressional staff is the legislative team. These individuals spend sometimes 100 hours a week carrying out the original purpose of representative government. A mix of young enthusiastic newcomers, fresh from college, work closely with seasoned professionals who may spend their entire careers working in Congress.

Ideally, a Senator’s or Member’s legislative team become the alter-ego of those they serve. They anticipate the Member’s needs. They become intimately knowledgeable of the issues most important to the Member and their constituents. As a Member gains seniority, the legislative team will grow with the Member and help them become a recognized leader on selected policies.

Legislative staff become the Member’s intellectual annex. They attend briefings, cultivate relationships with policy experts, and build their own collaborative networks among other Member staffs, lobbyists, and the media. They become invaluable in alerting the Member to opportunities and threats relating to the Member’s core interests and his or her constituents.

Legislative staff will collaborate with their network, including associates within Congressional leadership and committees, to manage the legislative process for their Member. At the basic level, legislative staff will “triage” pending legislation into its level of importance to the Member. This may include recommendations on how to vote on procedural motions and amendments, taking input from their Party’s leadership.

Legislation that is more important to a Member may require the legislative staff to draft amendments and speeches. The best staffers are ghostwriters, whose words so closely reflect the Member’s thinking and speaking, few will ever know where the staffers’ words end and the Members’ begin.

Ultimately, an issue requires the Member to take the initiative. The legislative staff will develop a strategy, which may include writing and introducing new legislation. At this level the legislative staff becomes a campaign team, mobilizing support from other Members, garnering endorsements and commitments from lobbyists and interest groups, engaging the media, and orchestrating hearings and media events to move the legislation forward.

It is no wonder that the most effective among the legislative staffers in Congress are highly sought after by outside interests and lobby groups. Such “super stars” can earn far more “on the outside” and some make the leap to the private sector.

Therefore, it is truly inspirational when a legislative staffer completes their career in Congress after many years of serving the Legislative Branch. They are the true “institutionalists” who maintain the culture of professionalism and pass their knowledge and commitment to the next generation.

Scot Faulkner advises corporations and governments on how to save billions of dollars by achieving dramatic and sustainable cost reductions while improving operational and service excellence. He was the Chief Administrative Officer of the U.S. House of Representatives. He started his Congressional career as an intern for Rep. Don Young (R-AK), then served on the legislative staffs of Rep. Arlan Stangeland (R-MN) and Rep. John Ashbrook (R-OH). Faulkner later served on the White House Staff and as an Executive Branch Appointee.

Roles: House Speaker, President Of The Senate, Majority, Minority Leaders And Whips For An Effective Congress (Part 2) – Guest Essayist: Amanda Hughes

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Along with House Speaker and President of the Senate, other important positions such as Majority and Minority Leaders, and Whips play significant roles for an effective Congress. At the outset of United States Congresses, such roles were not as formal as they are today, and have come to be defined by history and tradition. However, since the House of Representatives is a large body, having floor leadership is especially beneficial to assist members with conducting business they were elected to complete, and help one another work at their best together.

House and Senate Majority Leaders are selected for the party that has the most Members elected to the current Congress. The Minority Leader is selected for the party with the fewer Members elected to the current Congress. Each is chosen within the respective party caucus or conference every two years at the start of a new Congress.

Representative Sereno Payne (R-NY) served as chairman of the Ways and Means Committee prior to becoming the first House Majority Leader in 1899. For the current, 115th Congress, serving as House Majority Leader is Representative Kevin McCarthy (R-CA). Early on, the tendency was a chairman of Ways and Means or Appropriations was asked to also serve as Majority Leader. This trend continued until the role became more distinct. While party floor leaders are not included in the Constitution, the positions developed over time. The first floor leaders for Democrats were official in 1920, and for Republicans in 1925.

Charged with scheduling legislation to be considered for a floor vote, planning short and long-term legislative agendas, and checking with Members to see how votes could go, the Majority Leader helps the party reach its goals as elected. In Congress, the “floor” is where House and Senate Members meet, discuss, and vote in favor of or against passage of legislation. Each floor is said to be in the House chamber or Senate chamber, with each chamber located on opposite sides inside the United States Capitol building in Washington, DC.

Minority Leaders serve as floor leaders like the Majority Leaders. Though many of the Minority Leader responsibilities are similar to those of the Majority Leader, the Minority Leader represents the minority party of the current Congress, speaks for and protects the rights of the minority party.

James Richardson (D-TN) was recognized as the first House Minority Leader in 1899, though it was said James Madison served as the first Minority Leader as he led the “loyal opposition” to Treasury Secretary Alexander Hamilton’s policies during the First Congress. Today, Representative Nancy Pelosi (D-CA) serves as House Minority Leader.

Senate floor leaders came from standing committees that had the most power. In 1913, Senator John Worth Kern (D-IN) functioned similarly as a Senate Majority Leader would now for the Democratic Party. The same occurred for the Republican Party in 1919 with Senator Henry Cabot Lodge, Sr. (R-MA) acting as a majority floor leader. Later, official elections of Senate Majority and Minority Leaders arrived first in 1920 with the Democratic Party choosing Oscar Underwood (D-AL) as Senate Minority Leader, and in 1925, the Republicans choosing Senator Charles Curtis (R-KS) as Senate Majority Leader. Senator Mitch McConnell (R-KY) serves today as Senate Majority Leader and the current serving Senate Minority Leader is Senator Charles Ellis “Chuck” Schumer (D-NY).

Similar to Majority and Minority House and Senate leaders, Whips, borrowed from the British Parliament and a foxhunting term, or “whipper-in” would assist floor leaders with keeping the legislative agenda moving, counting Members for votes and ensuring quorums, and standing in for floor leaders as needed. Whips, also elected by both parties, are still part of floor leadership in modern Congresses, positions that grew out of necessity to maintain order during congressional proceedings.

The first Democratic Party Whip elected was in 1913, Senator James Hamilton (D-IL). In 1915, the same Whip role was created by Republicans who elected Senator James Wolcott, Jr., Wadsworth (R-NY). Currently, Senator John Cornyn (R-TX) serves as Senate Majority Whip, and Senator Richard Durbin (D-IL) serves as the Senate Minority Whip. The current serving House Majority Whip is Representative Steve Scalise (R-LA), and the House Minority Whip is Representative Steny Hoyer (D-MD).

By now, leadership roles of Congress have developed further with Parliamentarians, conferences and caucuses, Sergeants at Arms, Doorkeepers, Chaplains, among others. These also assist with maintaining order and effectiveness so those elected may arrive to their respective offices and serve as promised.

The various roles established throughout the course of American history are proving effective though some want to rid America’s Congress of its Members almost immediately after an election. However, made up of imperfect people who would fail at times yet try again, America’s Founders and Constitution Framers showed up for known, imminent challenges, and against just about impossible odds to succeed. They did so believing something better could exist and pursued a new type of governing that if maintained by the electorate would offer the most freedom for those it represented.

Amanda Hughes serves as Outreach Director, and 90 Day Study Director, for Constituting America. She is the author of Who Wants to Be Free? Make Sure You Do!, and a story contributor for the anthologies Loving Moments(2017), and Moments with Billy Graham(forthcoming).

Sources:

“United States House of Representatives Majority Leaders of the House (1899 to present)”
http://history.house.gov/People/Office/Majority-Leaders/

“The Role of the House Minority Leader: An Overview” https://www.everycrsreport.com/reports/RL30666.html

“Role of Senate Minority Leader”
https://constitution.laws.com/senate/minority-leader

“United States House of Representatives Leadership”
https://www.house.gov/leadership

“The People of the People’s House”
http://history.house.gov/People/

“Floor Leaders, Majority and Minority Leaders, Party Whips” https://www.senate.gov/artandhistory/history/common/briefing/Leaders_Whips.htm

“The Role of the House Majority Leader: An Overview” http://congressionalresearch.com/RL30665/document.php?study=The+Role+of+the+House+Majority+Leader+An+Overview

“United States Senate Leadership & Officers”
http://www.senate.gov/senators/leadership.htm

“United States Senate Majority and Minority Leaders” https://www.senate.gov/artandhistory/history/common/briefing/Majority_Minority_Leaders.htm

“United States Senate Party Whips” https://www.senate.gov/artandhistory/history/common/briefing/Party_Whips.htm

Roles: House Speaker, President Of The Senate, Majority, Minority Leaders And Whips For An Effective Congress (Part 1) – Guest Essayist: Amanda Hughes

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Leadership roles in the United States House of Representatives and Senate help advance the purpose of Congress and why each member was elected – to serve.  Various positions bring in members who offer each Congress that convenes unique experience and abilities.

Development of leadership roles that would carry into the new, settled governing system was in the making in the years surrounding the first, second, and third Continental Congresses and into the first United States Congress.

Combined efforts throughout the 1700s held a number of the same men who crafted and/or signed one or more of our beginning or founding documents, the Declaration of Independence, Articles of Confederation, United States Constitution, and later the Bill of Rights. The knowledge, strengths, and interests of these early leaders would create congressional governing positions still in use today.

The First United States Congress which met from 1789 to 1791 is considered the most important of all of the Congresses that have convened since then. The First Congress was entrusted with an arduous task of discussing and passing all legislation necessary to get the new system of American government running and with workable precedents. This included a need to select leadership roles among setting up rules and procedures of each chamber, or body, of the House and Senate.

Roles in Congress would develop with Representative James Madison who led the beginning Congress that would set up, for example, a revenue system, executive departments, take on state Revolutionary War debts, and decide on the future capital.

While at work setting up new roles for a new system, the first Congress moved to Philadelphia in 1789. Washington, D.C. would later become the settled, nation’s capital where the three branches of government would sit: the nation’s Capitol would be built for future Congresses to meet, the White House for United States presidents to reside, and home of the Supreme Court.

Each year Congress convenes in a series of meetings called a session. Congress holds two sessions per year. Article 1, Section 4 of the Constitution states:

“The Congress shall assemble at least once in every Year, and such Meeting shall be on the first Monday in December, unless they shall by Law appoint a different Day.”

Later, the 20th Amendment to the Constitution was ratified to make the third day of January the meeting date unless Congress passes a law to appoint a different day. When the House or Senate is meeting on Capitol Hill, either is said to be “in session” each time one or both chambers meets though the two formal meetings per year, one of which must occur based on the constitutional mandate to meet at least once per year, are also called “sessions.”

The House begins a new Congress at noon on January 3 each odd-numbered year following a general election with a Congress lasting two years, and each year is one session. The Senate meets for a new “Congress” every two years, divided into two annual sessions, each beginning in January and ending in December. When the House and Senate meet together, it is called a joint session, and sometimes a joint meeting depending on the reason for meeting. Starting and ending on an odd year, as of 2018, the United States Congress has convened for 114 Congresses, is currently in the second session of its 115th Congress that began in 2017 and will conclude in 2019.

Prior to the first Congress in 1789 under the new system of government, along with election as the first United States President, George Washington, was selected as president of the Constitutional Convention in the summer of 1787 in Philadelphia. It was a role that would help spur the necessary precedents to maintain a stable, effective Congress for the long-term.

Since 1789, relatively few Americans, almost 11,000, have taken a role as a member of the U.S. House of Representatives and/or Senate. The First Federal Congress convened in New York City’s Federal Hall March 4, 1789. They were able to begin proceedings finally in April because at first, they did not obtain a quorum to begin conducting business. Once enough members finally arrived from long, difficult travel, they were able to begin, including to elect a first Speaker, Representative Frederick Muhlenberg (R-PA). Currently, in the 115th Congress, Representative Paul Ryan (R-WI) is serving as House Speaker.

Article I, Section 2 of the United States Constitution reads:

“The House of Representatives shall chuse their Speaker and other Officers…”

The Speaker is the presiding officer over the House of Representatives in a political and parliamentary role. Though established from British parliamentary practice, Speakers have limited their positions to presiding over the House, among other duties, and serving as a ceremonial head. The Speaker is elected by a majority of the Representatives newly elected, and chosen by the majority and minority party caucuses, when a new Congress begins.

In case of a vacancy during a Congress, a majority of the House selects a new Speaker from candidates the two parties previously chose. The role of the House Speaker is part of our Constitution in Amendment 25 as a leader in line to the presidency, should the President of the United States prove disabled.

Since the Framers left the decision to Congress regarding which Officer would act as President should the Vice President be unable as first in line to the presidency, it was decided in 1791 to set the Secretary of State as next in line after the Vice President. The Vice President also serves as President of the Senate, with authority to vote in case of a tie on the Senate floor. John Adams served as the first Vice President along with duties as President of the Senate. Today, Mike Pence (R-IN) serves as Vice President and President of the Senate.

Some suggested the Chief Justice, House Speaker, or president pro tempore (meaning to serve for the time being, and in this case if the Vice President is unable) of the Senate which did serve in the succession capacity following the passage of the Presidential Succession Act of 1792. Differences in opinion over who should succeed the President and Vice President left considerable risk for upset of stability and balance of powers. In 1947, the law was changed to place the order of succession to make the Speaker in line after the Vice President, followed by the president pro tempore, then the Secretary of State and other cabinet members depending on the time each department was created. To this date, this system is still in use.

Amanda Hughes serves as Outreach Director, and 90 Day Study Director, for Constituting America. She is the author of Who Wants to Be Free? Make Sure You Do!, and a story contributor for the anthologies Loving Moments(2017), and Moments with Billy Graham(forthcoming).

Sources:

“The First Federal Congress” https://www.archives.gov/exhibits/treasures_of_congress/text/page2_text.html

“Total Members of the House & State Representation” http://history.house.gov/Institution/Total-Members/Total-Members/

“The Opening of the First Congress in New York City” http://history.house.gov/Historical-Highlights/1700s/The-opening-of-the-First-Congress-in-New-York-City/

“House of Representatives Session Dates” http://history.house.gov/Institution/Session-Dates/Session-Dates/

“Congress Profiles” http://history.house.gov/Congressional-Overview/Profiles/1st/

“The People of the People’s House” http://history.house.gov/People/

“United States House of Representatives Leadership” https://www.house.gov/leadership

“President Pro Tempore”
https://www.senate.gov/artandhistory/history/common/briefing/President_Pro_Tempore.htm

“Presidential Succession” https://www.senate.gov/artandhistory/history/minute/Presidential_Succession.htm

“President of the Senate: Vice President of the United States” https://www.senate.gov/reference/Index/Vice_President.htm

Separation Of Powers, Checks & Balances And Impeachment: Presidents Andrew Johnson, Richard Nixon, Bill Clinton – Guest Essayist: Andrew Langer

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“The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” – The US Constitution, Article II, Section 4

In this 90-Day series on the Constitution, many scholars, myself included, have talked about the diffusion of power as a check on sovereign authority.  The power to wage war, for instance, is divided between Congress (with the power to declare war) and the Executive Branch (wherein the President serves as Commander-in-Chief).

But because of the enormous power of the Executive Branch (and of the President as Chief Executive), the founders knew it would be necessary to create a mechanism by which a President could be removed from office.  Benjamin Franklin is noted to have quipped at the Constitutional Convention that prior to the existence of the United States, national leaders who had earned enmity with their peoples had been removed from power via assassination (or execution), and that it would be more preferable to have a proceduralized legal process by which such a leader would be removed in the United States.

Mirroring criminal legal proceedings, when it comes to federal impeachment, the House of Representatives engages in the process of “impeachment” which is akin to a grand jury’s indictment process.  Should the President be “impeached” (i.e., indicted), the case then goes to the U.S. Senate for trial—with the Chief Justice of the United States Supreme Court presiding.  To date, two Presidents have been impeached:  President Andrew Johnson and President Bill Clinton.  Neither were convicted in the Senate.

President Richard Nixon resigned from office before the House could vote on his impeachment—but it was expected that the House would impeach him, and that the Senate would most-likely find him guilty, and thus make him the first President to be removed from office under the Constitution’s guidance.

The fact that no President has been so-removed is a testament to the founders’ brilliance.  As I have written elsewhere regarding federalism and the separation of powers, the founders wanted the people of the United States to have a deliberative legislative branch—and the deliberative nature of the impeachment process hedges against a legislature that wishes to punish a President over politics.

This could certainly be argued with regards to Andrew Johnson.  Johnson, who assumed office after President Lincoln’s assassination, was grappling with a Congress essentially-ignoring Lincoln’s Reconstruction wishes (“malice towards none, charity towards all”), putting the southern readmission process into the Union under the management of military commanders.

There were legitimate questions as to whether this was Constitutional, but President Johnson attempted to use his power as Commander-in-Chief to mitigate the use of the military in this regard.  In response, Congress passed the “Tenure in Office Act”, which sharply constrained the ability of the President to remove Executive Branch officials[1] when the Senate was out of session (which, at the time, was quite frequent, given the part-time nature of our federal legislature prior to the invention and installation of modern air conditioning in the U.S. Capitol and office buildings).

Johnson asserted his authority as chief executive, and Congress pushed forward to impeach him under Article II.

It is important to note that the concepts of “high crimes and misdemeanors” has never been authoritatively defined—and so it has become a ubiquitous “catch all” for a President’s opponents to bandy about when calling for a President to be impeached on non-specific offenses.

In the case of Johnson, the process worked.  Yes, he was impeached by the House, but when the case went to the Senate he was acquitted.

In the case of President Clinton, the “high crimes and misdemeanors” arose from allegations of perjury and obstruction of justice with regards to the Independent Counsel investigation of the President, and statements he made, under oath, with regards to a personal relationship the President had with a White House intern.  Once again, the House of Representatives impeached the President, while the Senate trial resulted in an acquittal.

That President Nixon resigned from office before he could be removed is further proof that the system, and the concerns underscored by Benjamin Franklin, works as intended.  Our founders had great faith in the rationality of American leaders—but they also recognized that men were fallible.  As James Madison wrote in Federalist #51:

If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.”

There was an expectation that thoughtful leaders, when presented with the stark reality of their removal, would accept resignation rather than removal.

Which brings us to the present administration, and the great political divide in America today.  The founders were aware that political tensions could run high—and that politicians might try to remove a President for political reasons.  It is in environments like today that the deliberative process is of such paramount importance.

The thorough process creates a bar that insists that our representatives (in both the House and Senate) give great thought to their actions vis-a-vis removing the chief executive.  In that deliberative thought process, the founders knew, rationality would rise to the top.

Andrew Langer is President of the Institute for Liberty and host of the Andrew Langer Show on WBAL NewsRadio 1090 in Baltimore.

[1] It is important to note that the Tenure in Office Act was sharply reformed when Ulysses S. Grant took office, and ultimately repealed by Congress two decades after it’s package.  When a similar law was passed in 1926 and challenged for its constitutionality, the Supreme Court commented on the Tenure in Office Act as having been potentially unconstitutional (had it been challenged).

Treaty-Making Power Of Congress – Guest Essayist: Tony Williams

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In the early republic, the founding generation took the treaty-making provisions of the Constitution seriously even as they sought to define the parameters of those constitutional powers. As the first president, George Washington, in particular, tried to set the right constitutional precedents and observe the proper balance of powers with relation to the legislative branch. Although the battles over the treaty-making authority could be highly contentious, the fights took place within a constitutional framework and helped establish the principles of American foreign policy.

The treaty-making power was derived in part from the experiences of the successes and failures of the Continental Congress during the war and the Articles of Confederation. Upon declaring independence, the Americans sent commissioners to various nations and achieved its most notable success with military and commercial treaties with France in 1778. At the end of the war, the peace commissioners secured a 1783 treaty with Great Britain recognizing American independence. The precedent was set for treaties negotiated by a few individuals subject to approval by the people’s representatives in Congress. In the wake of the war, however, several states challenged national authority and sought to make their own treaties due to state sovereignty.

The treaty-making power was additionally derived from the principles of the American founding and incorporated into the Constitution.  In Article I, section 10, the Constitution banned states from making treaties because it was a power of national sovereignty. In the executive power of Article II, section 2, the Constitution authorized the president to make treaties: “He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur.”  This provided for the energy and dispatch in the executive branch to make treaties, subject to the approval of a supermajority of representatives of the states in the deliberative and wise upper house less subject to popular passions. In addition to the principle of checks and balances, this supported federalism by allowing the states to have a say in approving or rejecting treaties.

If the constitutional boundaries of the treaty-making power were relatively clear-cut, they were anything but clear in the partisan squabbles of the new nation.  Washington was a scrupulous constitutionalist and tried to follow it to the letter when he brought instructions for a commission to make peace with the Creek Indians to the Senate personally in the summer of 1789.  When the Senate bickered over the details and sought to appoint a time-consuming committee to study the matter, Washington fumed, “This defeats every purpose of my coming here.” The discontented president stormed off and would later submit completed treaties to the Senate for their consideration after the fact.

After a great struggle in 1793 over whether the president or Congress could issue a proclamation of neutrality in the wars raging across Europe (settled in favor of the president, while Congress retained its power to declare war), the treaty-making power became the center of controversy over the Jay Treaty in 1795 and 1796.  John Jay negotiated a treaty with Great Britain to stop the impressment of American sailors and resolve several unsettled issues from the Revolutionary War.  While Jay wrangled as many concessions as he could on the latter, he failed on the former.

In the spring of 1795, Washington reluctantly submitted the treaty to the Senate and asked that it be considered in secret.  The Senate narrowly ratified the treaty by a vote of 20-10 only after an unpopular clause limiting American trade with the British West Indies was removed.  After Washington signed the treaty, the House tried to control the treaty and demanded Jay’s papers from the negotiations.  Washington refused and asserted executive privilege. The House then tried to block the treaty with its appropriations power, but then finally passed the money to implement the treaty in early 1796.

The Pinckney Treaty with Spain was also ratified during the Washington administration and gave the United States access to the Mississippi River and duty-free trade with New Orleans that was much less controversial.

President John Adams dispatched three negotiators to France when that country seized hundreds of American vessels, but foreign minister Talleyrand demanded substantial bribes and loans to the country.  Outraged Americans demanded war and after mobilizing for the Quasi-War in the late 1790s, Adams also tried for peace and his negotiating team secured the Convention of 1800 that settled the issues between the two countries and negated the 1778 alliance.

President Thomas Jefferson shared Washington’s constitutional scruples when deliberating over the purchase of the Louisiana Territory.  He was greatly concerned that the president did not have the constitutional authority to purchase land and considered asking for a constitutional amendment.  Finally, he instead reasonably found the authority under the treaty-making power, and the Senate quickly agreed and ratified the popular purchase that doubled the size of the United States.

In the new nation, the standard of diplomacy was generally the constitutional procedure of the executive signing formal treaties subject to Senate ratification by a two-thirds vote.  A century later, even President Woodrow Wilson submitted the highly controversial Treaty of Versailles to the Senate despite the fierce opposition he anticipated from “irreconcilable” Republicans, and it went down to predictable defeat.  In recent times, however, presidents have evaded partisan opposition and defeat by making agreements not subject to the same constitutional standard and have contributed to the “imperial presidency” by avoiding the checks and balances that mark constitutional government.

Tony Williams is a Constituting America Fellow and a Senior Teaching Fellow at the Bill of Rights Institute. He is the author of six books including the newly-published Hamilton: An American Biography.

Congress, Declarations Of War And Authorization Of Force, And War Powers Act – Guest Essayist: Andrew Langer

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As discussed throughout the essays of Constituting America’s 90-Day Studies of the Constitution, central to the nature of our republic is the division and diffusion of power through the various branches and levels of our government.  The power of one branch of the federal government is checked by the power of another branch, and the authority to engage those powers is diffused, so that the rights of Americans are protected against abuse.

In the recent essay on Federalism and the United States Senate, I began with a quote from New York v. United States, a 1992 Supreme Court decision which eloquently lays out the reasoning behind our federalist system.  In that essay, I talked about the diffusion of sovereign power as protecting individual rights. That case also says,

“[T]he Constitution protects us from our own best intentions: It divides power among sovereigns and among branches of government precisely so that we may resist the temptation to concentrate power in one location as an expedient solution to the crisis of the day.”[1]

This is especially true when it comes to the power to wage war.  Next to the power to use lethal force against its own citizens (in the most-extreme instances), the power to inflict harm against other nations is the most-serious power we, as a people, have ceded to our government.

And the founders were incredibly suspicious of the power to wage war being abused by a centralized government.  They had seen firsthand the arbitrary and cavalier ways in which monarchs, and not just the British monarchy, were using war, and had used war throughout the world’s history, as a way of building empire, and glory, and power.

This is NOT what they wanted these United States to be—and so they made it difficult for the nation to wage war.  The imbued, under Article I of the Constitution, the power to declare war with the Congress.  But the management of that war, the management of the armed forces of the United States, was vested in the President as the “Commander-in-Chief” under Article II.

Remember, as well, that as a check against abuse of military authority, the bulk of our armed forces were to be comprised of militia[2], locally-organized and locally-commanded, and that we really were to have no standing army (a posture that changed as the country grew and matured).

But the founders wanted the decision to go to war to be deliberate (and deliberated), so they vested that decision in Congress, and as a result, Congress has only “declared” war eleven times in our nation’s history, with six of those instances being related to various hostilities in and around World War II.

However, following World War II, and with the advent of the Cold War (and the associated “proxy wars” that ensued)[3], the divided powers between Congress and the Executive Branch became muddied.  The President was granted considerable leeway by Congress to engage U.S. troops in armed conflicts without having it necessary for Congress to actually “declare” war.

The Korean War was, officially, a “police action”—though historically it is termed a war, U.S. troops were directly engaged in a conflict between two powers, and thousands of U.S. lives were lost.  Similarly, the Vietnam War utilized thousands of soldiers, sailors, airmen and marines, but Congress never declared war against North Vietnam.

But Congress attempted to re-assert its authority because of growing public wariness with how the Vietnam War was being conducted.  In 1973, the “War Powers Resolution” was passed (though not signed by President Richard Nixon, thus making fall short of an “act”), which is supposed to work as a check against the President’s conducting of foreign military affairs.  It requires the President to inform Congress within 48 hours of the committing of U.S. military forces to action, places time restraints on how long they can remain there (60 days of engagement with 30 days for a measured withdrawal from conflict).

Past this, Congress is supposed to pass an AUMF – an “Authorization for the Use of Military Force”, or, beyond an AUMF, an actual declaration of war.

Because of the expense to the United States from engagement in hostilities abroad—both in terms of manpower and materiel, there has been renewed interest in both houses of Congress and in not just the two major political parties, but other parties as well, for legislation to reassert the separation of powers when it comes to warmaking.  Those pushing for this reassertion are saying that the concerns of the founders, the reasons the founders divided these powers, are being made manifest in how that division is being ignored today—American military members dying in conflicts that are not wars, though important American participation in these conflicts might be.

The point is, the use of that force was supposed to be deliberate—and the division of power was supposed to make those waging war more directly accountable.  The Constitution protects us from our own best intentions.  And those intentions had better be deliberated when we’re talking about waging war.

Andrew Langer is President of the Institute for Liberty and the Host of the Andrew Langer Show on WBAL NewsRadio 1090 in Baltimore.

[1] New York v. United States, 488 US 1041 (1992)

[2] There is much-confusion as to the definition of “militia” as referenced in the Second Amendment.  Keeping in mind that the entirety of the Bill of Rights exist as a further constraint against government power, and that the Second Amendment represents only one justification for the right to keep and bear arms (absent the 2nd Amendment, the 9th makes it clear that the right to self-defense is retained, despite not being enumerated in the Bill of Rights), “militia” is currently actually defined in the United States Code—divided into “organized” militia (the National Guard) and the “unorganized” militia—essentially all other adult citizens of the United States. 10 USC, Section 246.

[3] A “proxy” war is a conflict engaged in by two powers, who are essentially acting as proxies for other, stronger powers that do not wish to engage in direct warfare with one another.  Throughout the Cold War, the United States and the Soviet Union supported parties in a number of armed conflicts, many of which could be considered “proxy” wars.

Congressional Powers And War: United States Congress Versus The Confederate Congress During The Civil War – Guest Essayist: James D. Best

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The Framers interminably debated every little detail of the Constitution. Did they end up getting it right? The Civil War indicates they may have.

Nothing puts stress on government more than war. Especially, a civil war. Superficially, the Confederate Constitution appeared very similar to the United States Constitution. However, there were differences. The Confederate Constitution openly used the word slavery, where the Framers adopted the euphemic, “other persons.” Many of the Framers abhorred slavery and refused to see it referred to outright in the language of the Constitution. The Confederacy made more than semantic changes. In their minds, they corrected errors they felt were decided improperly seventy-three years prior. Some of these, arguably, contributed to the South losing the War for Southern Independence.

In Philadelphia, the Framers argued numerous times over the proper length of term for the president. Some wanted a short term with re-electability, others wanted a long term with no re-electability. The Constitutional Convention settled on a four-year term with unrestricted re-electability, which the Twenty-Second Amendment limited to two terms. The Confederate Constitution adopted a six-year term with no re-electability.

In 1787, most southern delegates to the Constitutional Convention believed the executive should be nonpolitical, so when they had a chance to write their own constitution, they gave the president the liberty to abstain from politicking. With an above-the-fray executive, they then felt comfortable giving the president more power. Under the Confederate Constitution, the president had a line-item veto and Congress, without a two-thirds majority, could not appropriate money unless requested by the president. In essence, this shifted the power of the purse from Congress to the president.

Jefferson Davis never ran for president. He was selected for one six-year term and, for the most part, ignored politics. Davis was an iconic figure for the Confederate cause, while at the same time, the public held Congress in low regard. Davis used the disparity in their respective reputations to neglect Congress. He did not host meals with congressional leaders, provide patronage, help legislative candidates, speak highly of people to the press, or support bills sponsored by powerful legislators. He openly displayed impatience with people who disagreed with him. As an indicator of Davis’ distain for Congress, he wrote, “Now when we require the brains and the heart of the country in the legislative halls of the Confederacy and of the States, all must have realized how much it is otherwise.” A Charleston Mercury reporter wrote, “He regards any question put to him by Congress as a presumptuous interference in matters which do not concern them.”

Lincoln did not have that luxury. The U.S. Congress constantly challenged his war decisions. The Joint Committee on the Conduct of the War, commonly referred to as the War Committee, used oversight powers to wield a potent check on the executive branch. The committee investigated battle defeats, war profiteering, Confederate atrocities, and generally stuck its nose in wherever it wanted. Members often leaked testimony and criticisms to the press, which caused distrust in the War Department and the Union Army. While the Confederate Congress met in secret, the Union Congress broadcast its proceedings at the top of its lungs.

Presidential politicking of congress was one of the great differences between the Union and Confederate governments, but did this affect the outcome of the war? Perhaps, and perhaps significantly.

Lincoln smooched Congress to get legislation passed, appropriations approved, and to garner support for reelection. It may not have felt good to Lincoln at the time, but this constant politicking brought many more minds to the task, built comradery, provided a vent for mistakes, and may have tamped down some ill-conceived moves. The War Committee harangued Lincoln and his cabinet throughout the conflict, but by acting as the catalyst for aggressive debate, the committee may have helped win the war. It certainly caused Lincoln to think long and hard about what needed to be done and how he would get various factions behind his proposed actions.

Near the end of the war, Lincoln won reelection and enjoyed substantial popularity in government and the states that remained in the Union, while the Confederate Congress tried to force President Davis to replace his entire cabinet, stripped him of his commander-in-chief authority, and threatened a vote of no confidence. By this time, of course, a Union victory had become obvious, affecting the respective reputations of the presidents. But Davis has gone down in history as cantankerous, aloof, and averse to taking advice. Perhaps if he had been required to build relationships with the other people in government, the South could have leveraged their early victories to achieve a different outcome.

Did the hyper-political Abraham Lincoln have an advantage over the standoffish Jefferson Davis? Probably. An engaged president knows the thinking of other players and can more easily leverage strengths and mitigate weaknesses. If this be the case, then the Founding Fathers got it right when they settled on a short presidential term with re-electability.

James D. Best, author of Tempest at Dawn, a novel about the 1787 Constitutional Convention, Principled Action, Lessons From the Origins of the American Republic, and the Steve Dancy Tales.

Power Of The Purse And The Congressional Budget Process – Guest Essayist: Amanda Hughes

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One of the most important tasks Congress must complete is to set a budget. It is especially important for members of Congress to understand how the budget works in order to best represent and serve the American people. For this reason, our United States Constitution framers recognized the need for a system that could remain within the knowledge and control of the people who would entrust power to their elected representatives concerning the nation’s finances.

The framers did not want to repeat what they observed in England where the king was able to direct funds rather than the citizenry directing funds. The framers instead put together a different form of government that left control or “power of the purse” in the hands of the people. This is how Congress, the legislative branch, was placed in charge of taxing and spending, a system by which voters could have a say in the direction of funds and hold their representatives accountable:

“All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with amendments as on other Bills.” –United States Constitution, Article I, Section 7, Clause 1

By the first Monday in February of each year, the Office of Management and Budget (OMB) is required to provide a report of the president’s priorities for the United States. The budget is set for the fiscal (monetary or budgetary) year that begins in October, and is required by law to cover at least five fiscal years. Currently, the federal budget covers 10 fiscal years:

“No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.” –United States Constitution, Article I, Section 9, Clause 7

By 1791, the First Congress passed the first appropriations act to fund the government. In 1865, the House of Representatives separated the duties of writing tax policy and the duties of allocating funds into these two committees: the Committee on Ways and Means, and the Committee on Appropriations.

The House Committee on Ways and Means is in charge of writing tax policy that will determine how money is spent. The Committee on Ways and Means dates back to 1789 and is the oldest committee of the United States Congress. The Committee on Appropriations is in charge of dedicating funds for specific purposes.

Though the President of the United States starts the budget process by sending a request with the Administration’s policy and funding priorities to the Office of Management and Budget, it is Congress that runs the financial numbers and reports on projections and measures policy changes that may be recommended for upcoming years.

Next, the nonpartisan Congressional Budget Office sends analyses on the economic outlook to the House and Senate Budget Committees, which then uses the information researched by the Congressional Budget Office to put together a resolution and decide on proposed policy changes.

The budget process has come a long way since America’s founding. But, with the bringing in of revenue (tax money), complications and even quarrels over the integrity of the budget process and spending arose. By 1974, the Congressional Budget and Impoundment Control Act was established to reduce court suits over disputes between Congress and the President, among prior issues building up to that point, to help alleviate problems delaying the creation of each budget. The intention was to reform the process that would result in the best spending priorities rather than allow to remain a sense that the budget lacked stability.

Though changes in means to forecast economic strength and positive or negative outcomes have grown due to advancements in technology and computing, for example, Americans will undoubtedly continue to argue over spending and debt. Yet, America’s founders and Constitution framers knew all too well the warning signs accompanying a lack of discernment for the public monetary trust that could result in a declining economy:

“I, however, place economy among the first and most important of republican virtues, and public debt as the greatest of the dangers to be feared.” – Thomas Jefferson, Founder, Author of the Declaration of Independence, and Third U.S. President

Amanda Hughes serves as Outreach Director, and 90 Day Study Director, for Constituting America.  She is the author of Who Wants to Be Free? Make Sure You Do!, and a story contributor for the anthologies Loving Moments(2017) and Moments with Billy Graham(forthcoming).

Sources:

Office of the Historian – History, Art & Archives: United States House of Representatives http://history.house.gov/institution/origins-development/power-of-the-purse/

House Budget Committee – “Basics of the Current Federal Budget Process” https://budget.house.gov/budget-digest/basics-current-federal-budget-process/

Office of Management and Budget https://www.whitehouse.gov/omb/

Congressional Budget Office https://www.cbo.gov/about/overview

House Committee on Ways and Means https://waysandmeans.house.gov/about/

House Committee on Appropriations https://appropriations.house.gov/about/

Founders Online, “Thomas Jefferson to William Plumer, 21 July 1816” https://founders.archives.gov/documents/Jefferson/03-10-02-0152

Congressional Oversight Of Federal Bureaucracy – Guest Essayist: Richard Wagner

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It is commonplace to assert that Congress exercises oversight over federal bureaus and executive agencies. But is this a reasonable assertion? Or might it represent a romantic yearning for an earlier and simpler age, or even for an age that never existed?

Article I, Section 1 of the Constitution declares that “all legislative powers herein granted shall be vested in a Congress of the United States.” What is known as the nondelegation doctrine holds that Article 1, Section 1 prohibits Congress from delegating legislative authority to executive branch bureaus and agencies. A rigorous application of the nondelegation doctrine would undoubtedly overturn much of the so-called progressivist legislation of the past century, for that legislation confers on executive agencies the ability to make rules as well as to administer them, and also often to judge complaints about their actions.

Within the traditional concept of separation of powers, Congress creates the laws of the land through legislation, the President and the bureaus and agencies that comprise the executive branch executes and implements those laws, and the judiciary determines whether Congress and the President have conducted themselves properly in using their powers of office. The image of a separation of powers reminds one of a carton of Neapolitan ice cream with its three distinct zones of flavor. Actual democratic practice has a strong tendency to swirl the flavors together, rendering it impossible to get a bite of one flavor alone without obtaining all three flavors. The nondelegation doctrine seeks to restrict the ability of Congress to delegate its rule-making authority to executive bureaus and agencies.

In what is surely one of the most significant books so far this century, Philip Hamburger asked in 2014: Is Administrative Law Unlawful? Through some 500 pages of densely packed analysis and argument, Hamburger answers his question resoundingly in the affirmative. The reader of this book comes away with a good sense of the radical transformation our system of Constitutional government has been undergoing for the past century or so.

The American republic was founded on a constitution of liberty where people were pretty much their own bosses, as was reflected in our Declaration of Independence’s recognition that “governments derive their just powers from the consent of the governed.” The United States was founded on a rejection of the European feudal heritage where government was the province of the well-bred and the rest of us had no option but to mind our stations in life.

The spread of the administrative state through Congressional delegation of legislative authority to executive agencies has been establishing a contemporary form of feudal government. No longer is there a class of people who are born to be lords of the manor. But lords of the manor are spreading among us all the same. These lords attain their positions not by birth but by advancing into the higher regions of bureaucratic administration.

While Congress does sometimes inquire into executive actions without receiving responses, more common is a Congressional disinterest in the bulk of the activities of those executive agencies and bureaus. Congress delegates such powers all the time across nearly all arenas of governmental action. A few highly publicized instances arise where executive agencies defy Congressional inquiries. The usual pattern, however, is a general Congressional disinterest in the activities of most bureaucratic agencies most of the time.

This observation about the absence of strong Congressional interest in nondelegation points to a valuable insight about human nature in politics that the American Founders would clearly have appreciated. Why does Congress delegate legislative authority when it doesn’t have to and, indeed, is precluded from doing so by a plain reading of the Constitution?

A good starting point for addressing this question surely resides in recognizing that increasing the amount of oversight Congress must exercise will interfere with other activities that members of Congress would prefer to do. One of those activities is providing constituent services, which occupy a great deal of time by Congressional staffs. With constituent services, Congressional staffers help constituents to deal with problems their constituents face in dealing with executive agencies and bureaus.

Without the delegation of legislative authority to executive agencies, those constituent problems would be blamed on Congress. With delegation, however, these are blamed on bureaus and agencies. Members of Congress thus receive gratitude from constituents for helping them to navigate the bureaucratic jungle they allowed to grow in the first place. Members of Congress can improve their electoral prospects by refusing to exercise the oversight that a plain reading of Article 1, Section 1 requires of Congress. Even more, exercising such oversight would reduce the ability of Congress to enact even more legislation, and yet Congress lives in large measure on enacting legislation that various interest groups in society favor.

Richard E. Wagner is Holbert Harris Professor of Economics at George Mason University.

Federalism, The Senate, And The Constitution – Guest Essayist: Andrew Langer

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“[T]he Constitution divides authority between federal and state governments for the protection of individuals…federalism secures to citizens the liberties that derive from the diffusion of sovereign power.” New York v United States (1992)

The essence of our Republic is summed up in this phrase from this 1992 Supreme Court decision.  In it, Justice Sandra Day O’Connor lays out the very nature of our system of government:  we have a federalist system, a system of divided powers, diffused as a check against the kinds of centralized authorities that are prone to abuse individual rights.

The founders, and their forebears, were deeply suspicious of centralized power.  Britons in the pre-Magna Carta era had seen their rights abused by a series of tyrannical monarchs, and post-Revolutionary War Americans had seen the abuses of a king an ocean away whose despotism had descended into tyranny.

It was with that in mind that the Constitution was created as a document that turned the nature of government on its head.  Power, narrowly and carefully ceded, flowed from the people to their government.  Those powers were carefully laid out in the Constitution, and they added a Bill of Rights as a further constraint against government power—being even more careful to add 9th and 10th Amendments to ensure that their descendants would understand that all that was not surrendered by the people was retained by them, that because certain rights were enumerated that didn’t mean that other rights didn’t exist, and that those powers that had not been given to government were reserved to the people.

The founders were explicit about this because they knew that over time, people would come to forget the tyrannies Americans had faced at the beginning of our nation’s history (and before).  They knew that successive generations would tinker with the Constitution in the inevitable quest to “form a more perfect union.”

They knew that these generations would fail to understand the balance, and that power would shift between the various branches (through ignorance, or laziness, or the very-human thirst for power).  Power is vested in Congress, for instance, to make law.  But if Congress, because of the political pressures of elections, doesn’t want to be specific in terms of legislation, they will pass vague laws and leave it to the Executive Branch to interpret—sometimes allowing that branch to make up wholly new laws.[1]

The founders created an additional diffusive check on power by making the two houses of Congress entirely different from one another.  A “people’s house” – the House of Representatives, representing smaller districts for two years at a time, and an “upper house”—the Senate, where they would represent whole states, and gain a greater depth of wisdom with six-year terms.

But… the Founders also recognized that a six-year term could make these Senators less-accountable to their constituents.  So they added an additional check:  having these senators appointed by their state legislatures instead of having them directly elected by the people.

While certainly not being as “democratic” as direct elections would be, one has to remember, again, that the United States are not a “democracy” but a “republic” – founded in the principles of federalism, representationalism, and, certainly, democracy.  The founders were interested in good governance, accountability, and ensuring that power wasn’t concentrated.

Having senators appointed by legislatures actually allowed for greater accountability.  Consider, U.S. senators represent whole states.  It becomes inordinately difficult for these senators to develop relationships with the vast majority of a state’s citizens.  It therefore becomes difficult for these citizens to exert pressure on their senators on key issues.

On the other hand, state legislators have close relationships with their constituents (within reason), and can distill their wishes relatively easily for translation to a senator appointed by a state legislature.  Add to this the pressure of being able to be recalled by a legislature, and you get a fairly agile check on federal legislative authority.

Unfortunately, in an era in which well-meaning but misguided activists were pushing for greater levels of democracy for democracy’s sake alone[2], the 17th Amendment was introduced, passed, and ratified… and the ability of a state’s citizenry to effectively check the power of the U.S. Senate was extinguished.

In the modern era, we see this in a variety of ways—both in terms of positive and negative influence on legislation.  Good pieces of legislation passed by a House of Representatives still able to be activist go to the Senate and languish, while bad pieces of legislation go to the floor, immune from the pressure of local activists.

The founders had the foresight to create a federalist system where power was carefully balanced, checked and diffused.  They wanted to make a Senate that was accountable to the people.  The 17th Amendment changed that careful balance, and the American people are still reaping the ill-fruit of this decision today.

Andrew Langer is President of the Institute for Liberty and host of the Andrew Langer Show on WBAL NewsRadio 1090

[1] This is how an isolated patch of wet soil can be declared a “navigable water of the United States” for the purposes of regulation under the Clean Water Act, for instance.

[2] Despite claims that senators appointed by legislatures were more apt to be corrupted, there is scant evidence that this was actually the case.  In contrast, senators that cannot be recalled by their legislatures are virtually immune from being punished by the voters for their misdeeds.  Cf. The Keating 5 Scandal, various senators being indicted and not rejected from office, etc.

Federalism: Legislative Power Of Congress And The State And Local Levels – Guest Essayist: Patrick Garry

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Following ratification of the U.S. Constitution, political philosophers described the federalism inherent in the document as America’s hallmark contribution to the eighteenth century science of political governance.

Defined as a system of dual sovereignty, federalism envisions a constitutional order in which national and state governments each possess their own sphere of autonomy and authority.  Whereas the concept of separation of powers operates on a horizontal level, ensuring the autonomy of the different branches (legislative, executive and judicial) within any one level of government (state or national), federalism operates vertically, ensuring the autonomy of those different levels.  Both federalism and separation of powers act as a coordinated system of checks and balances.  Separation of powers checks the various branches, while federalism checks the different levels of government.  Under federalism, autonomous states with their own sphere of power can help prevent a national government from abusing its power.

American federalism was not so much a deliberate political theory as it was a development of history.  Throughout the colonial period, federalism evolved out of necessity.  Because of the great distance between London and the American colonies, local government arose to fill the void.  While the British parliament provided centralizing governance, local and colonial governments in America provided the day-to-day governance.  This scheme not only allowed the colonists to address their own local concerns, it supplied a political experience and structure that would be invaluable once independence from England was declared.  Consequently, when America designed its own constitutional structure, federalism naturally formed a vital foundation of that structure, ensuring the dual sovereignty of state and national governments.

Although there is no specific federalism provision in the U.S. Constitution, just as there is no specific separation of powers provision, federalism pervades the constitutional structure, which recognizes the autonomy of the states while also limiting the ability of the federal government to infringe on that autonomy.  The closest to a specific federalism provision in the U.S. Constitution is the Tenth Amendment, which states that all powers not specifically granted to the federal government are reserved to the states.

The U.S. Senate, prior to the Seventeenth Amendment providing for popular election of senators, once reflected federalism concerns.  Under the original Constitution, the House of Representatives was directly elected by the voters, but the Senate was chosen by the state legislatures.  This system gave states a greater voice in the makeup of the federal government.  It also created a sharper distinction and hence balancing function between the state-chosen Senate and the popularly-elected House.

Aside from its historical basis in the American experience, federalism also served several important values.  Federalism provides a check on the abuse of national power.  It also supports the diversity of a sprawling nation.  Diverse state and local populations can shape local policy to their particular interests, whereas the federal government can only enact a one-size-fits-all policy for the entire nation.

Federalism enhances political accountability and trust.  The smaller the governmental unit, the closer it is to the electorate and the more accountable it is.  This higher degree of accountability in turn builds a higher level of trust in government.  And finally, federalism creates a more flexible system of political governance, since smaller government units are more able to experiment in their policies.

From its colonial beginnings until the early twentieth century, the American political system rested on a strong belief in federalism.  But this abruptly changed in the 1930s with Franklin Roosevelt’s New Deal agenda, which greatly boosted national power at the expense of the states.  Congress acquiesced in this expansion of the national executive branch, as did the Supreme Court, which essentially abandoned one hundred and fifty years of constitutional jurisprudence in allowing such an expansion.

For nearly a half-century after this New Deal constitutional revolution, the Court continued to disregard the federalism mandates of the Constitution.  Not until the mid-1990s did the Court reconnect with federalism.  Dubbed by the media as “the federalism revolution,” the Court’s revival of constitutional federalism coincided with President Bill Clinton’s assertion that “the era of big government is over.”  Nonetheless, the Court’s “federalism revolution” attracted intense opposition from the advocates of an all-powerful central government.  These advocates opposed federalism because of the potential limits it places on the unrestrained growth of the national government.

In U.S. v. Lopez, the Court upheld federalism by ruling that Congress could not invade areas traditionally controlled by state and local governments.  The Court struck down a federal law prohibiting guns within a certain distance of a school, ruling that schools were historically state and local concerns.  This decision contrasted with the New Deal-era decision in Wickard v. Filburn, where the Court ignored all distinctions between local and national.  In Wickard, the Court held that a farmer’s growing of wheat on his own land for his own use constituted an act of interstate commerce legitimately regulated by Congress.

Federalism not only limits the reach of the national government, it also allocates the use of legislative power among the different levels of government.  Legislative power is shared through a system of dual sovereignty between state and national governments, and Congress cannot use its power to threaten the autonomy of the other levels of government.

Patrick Garry is professor of law at the University of South Dakota and is the author of Limited Government and the Bill of Rights and The False Promise of Big Government: How Washington Helps the Rich and Hurts the Poor.

 

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Elections & The Great Compromise Of 1787: Proportional Representation & Voting Power Per State – Guest Essayist: Robert McDonald

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The Greatest Compromises Secure the Blessings of Liberty

In our current era of partisan polarization, just about any compromise can seem great. This makes all the more remarkable the Great Compromise of 1787, when so much seemed at stake.

The Great Compromise (also known as the “Connecticut Compromise”) broke an impasse between large and small states as well as nationalists and localists. It made possible the eventual ratification of the Constitution.

But the compromise did more than result in the creation of the Senate, in which each state has two members, and the House of Representatives, where a state’s number of seats is proportional to its population. It also strengthened the Constitution’s checks and balances of competing powers and interests in order to better secure Americans’ liberty.

When the Constitutional Convention gathered in Philadelphia in May of 1787, the need for compromise soon became apparent. Congress had authorized delegates to meet “for the sole and express purpose of revising the Articles of Confederation,” under which states had equal representation in a unicameral assembly of delegates chosen by state legislatures. Yet on May 29, James Madison and Edmund Randolph proposed the “Virginia plan,” which would scrap the Articles and institute a new constitution featuring a strong, one-man executive, as well as a bicameral legislature in which membership in both houses would be proportional to states’ populations or contributions in tax revenue.

What had once been a confederation of states would be erased by a new national government in which state governments had no direct voice. This displeased localists (soon to be labeled “Antifederalists”) who viewed the American Revolution, in part, as a struggle for the autonomy of the 13 former British colonies. It also put on the defensive small states, which feared that the proposed new system would allow highly-populated neighbors such as Virginia and Pennsylvania to dictate the government’s direction.

In response, on June 15 William Patterson presented the “New Jersey plan.” Patterson proposed to retain the Articles of Confederation and its one-house legislature in which all states had one vote. The Articles would be amended, however, to vest the central government with new powers to collect taxes and regulate commerce. In addition, a new, multiple-person executive branch would be authorized to compel compliance with the central government’s laws.

It took delegates only a few days to reject the New Jersey plan. Even so, the Virginia plan lacked the support necessary for its adoption. The Constitutional Convention remained deadlocked.

The Convention regained momentum when Roger Sherman and Oliver Ellsworth, both of Connecticut, proposed combining elements of the Virginia and New Jersey plans. When finalized on July 23, the Great Compromise had settled on a Senate in which states had equal representation and a House of Representatives where seats were assigned according to population.

The compromise did more than split the difference between the Virginia and New Jersey plans. Embracing the Virginia plan’s bicameralism meant that bills would need to pass through an additional filter prior to arriving on the desk of the (one-man) executive. Embracing in the Senate the New Jersey plan’s insistence on representation that was not only equal among the states but also (prior to the 1913 adoption of the Seventeenth Amendment) elected by the state legislatures meant that state governments, which had existed prior to the new national one, enjoyed a safeguard against the usurpation of their authority. Unlike under the Articles of Confederation, however, the compromise allowed senators to vote as individuals; gone would be the days when delegates cast ballots to decide their state’s single vote. Yet revenue bills would originate in the proportional, popularly-elected House—in deference to the Revolutionary rallying cry of “no taxation without representation.”

All this made the Great Compromise better, stronger, and more consequential than the sum of its parts. It helped to institute a plan that leveraged key features of America’s Revolutionary heritage in the service of the future United States—a nation of nations that divided power within the central government and between the central government, the states, and individual citizens.

The democratic republic that resulted was to be a means to an end even greater than itself.  Although the framers of the Constitution imagined different ways to achieve their goal, they refused to compromise their commitment to secure the blessings of liberty. They found a way to compromise on the new government’s decision-making process in order to enjoy the best hopes of realizing its purpose. This made all the difference.

Robert M. S. McDonald is Professor of History at the United States Military Academy in West Point, New York, and author of Confounding Father: Thomas Jefferson’s Image in His Own Time.

 

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May 31: Midterm Elections: Purpose And Importance For Successful Functioning Of Congress – Guest Essayist: Scot Faulkner

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The definition of a Midterm Election is that it is held mid-way through the term of the President.  While not on the ballot, the President’s electoral mandate and actions to fulfill that mandate, are validated or challenged by voters as they elect members of the Legislative Branch.

Midterms were created as the solution to a fundamental issue in the founding of America:

What is the balance between responsive and responsible government?

The authors and advocates of the U.S. Constitution wrestled with this balance.

On the one hand, Alexander Hamilton and James Madison, writing as “PUBLIUS”, asserted in their essays advocating for the ratification of the U.S. Constitution, that frequent elections guaranteed Congress’ elected Members responding to the will of the people.

Federalist No. 52:

“First. As it is essential to liberty that the government in general should have a common interest with the people, so it is particularly essential that the branch of it under consideration should have an immediate dependence on, and an intimate sympathy with, the people. Frequent elections are unquestionably the only policy by which this dependence and sympathy can be effectually secured…. It is a received and well-founded maxim, that where no other circumstances affect the case, the greater the power is, the shorter ought to be its duration.”

Guaranteeing responsiveness and accountability also needed to be tied to short terms in office.

Federalist No. 57:

“The House of Representatives is so constituted as to support in the members an habitual recollection of their dependence on the people. Before the sentiments impressed on their minds by the mode of their elevation can be effaced by the exercise of power, they will be compelled to anticipate the moment when their power is to cease, when their exercise of it is to be reviewed, and when they must descend to the level from which they were raised; there forever to remain unless a faithful discharge of their trust shall have established their title to a renewal of it.”

On the other hand, Hamilton and Madison worried that too frequent elections would create instability.

Federalist No. 62

“The mutability in the public councils arising from a rapid succession of new members, however qualified they may be, points out, in the strongest manner, the necessity of some stable institution in the government. Every new election in the States is found to change one half of the representatives. From this change of men must proceed a change of opinions; and from a change of opinions, a change of measures. But a continual change even of good measures is inconsistent with every rule of prudence and every prospect of success. The remark is verified in private life, and becomes more just, as well as more important, in national transactions.”

Hamilton and Madison raised an issue they considered worse than instability – arbitrary and capricious public policy.  They sought a structural solution, “necessary as a defense to the people against their own temporary errors and delusions.” [Federalist 63]

Hamilton and Madison’s solution was to have two separate bodies within the Legislative Branch, one of which would have longer terms of service. “The proper remedy for this defect must be an additional body in the legislative department, which, having sufficient permanency to provide for such objects as require a continued attention, and a train of measures, may be justly and effectually answerable for the attainment of those objects.’ [Federalist 63]

The Senate, having six year terms for its members, would be a defense against,  “particular moments in public affairs when the people, stimulated by some irregular passion, or some illicit advantage, or misled by the artful misrepresentations of interested men, may call for measures which they themselves will afterwards be the most ready to lament and condemn.” [Federalist 63]

Hamilton and Madison cited the importance of deflecting transitory and ill-thought public passion throughout history. “What bitter anguish would not the people of Athens have often escaped if their government had contained so provident a safeguard against the tyranny of their own passions? Popular liberty might then have escaped the indelible reproach of decreeing to the same citizens the hemlock on one day and statues on the next.” [Federalist 63]

They concluded that not only terms of service, but the cycles of elections would create the proper balance to assure responsive and responsible democracy: “when compared with the fugitive and turbulent existence of other ancient republics, very instructive proofs of the necessity of some institution that will blend stability with liberty.” [Federalist 63]

Their solution is embedded in the U.S. Constitution.

ARTICLE I; Section 3

1: The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, 3 for six Years; and each Senator shall have one Vote.

2: Immediately after they shall be assembled in Consequence of the first Election, they shall be divided as equally as may be into three Classes. The Seats of the Senators of the first Class shall be vacated at the Expiration of the second Year, of the second Class at the Expiration of the fourth Year, and of the third Class at the Expiration of the sixth Year, so that one third may be chosen every second Year;

The combination of having the entire Membership of the House of Representatives face the electorate every two years, and only a third of the Senate submit to re-election every two years created Midterm Elections.

Throughout American history, Midterm Elections have reshaped Presidential agendas, ended or launched new political movements, and marked watershed moments in the civic culture of the nation.

The 1858 Midterm, prior to American Civil War, showcased the fragmentation of the Democrat Party over slavery and catapulted the four-year-old Republican Party into becoming the dominant plurality faction in both the House and Senate.  Sixteen years later, Republicans lost 96 House seats and their majority in reaction to the Grant Administration scandals, and the mismanagement of Southern Reconstruction.

The 1894 Midterms heralded the reemergence of the Republican Party as a new dynamic force that would bring William McKinley to the Presidency in 1896.  The voters also blamed President Grover Cleveland for a major economic depression, leading to jobless workers marching on Washington demanding relief.  The Democrats lost 116 seats in the House, the largest defeat in history. Fourteen years later, splits in the Republican Party, especially the falling out between old allies, Theodore Roosevelt and William Howard Taft, triggered Republicans losing 57 seats in the House and 10 Senate seats.  This fragmentation worsened, leading to Woodrow Wilson winning the Presidency in 1912 with 42 percent of the popular vote in a three-way race.

The October 1930 Midterm reflected Americans reeling from the Stock Market Crash, facing a deepening Depression, and the collapse of trust in Republicans.  The Republican Party lost 49 House and 8 Senate seats.  The Republicans barely retained control of Congress by only two votes in the House and one in the Senate.  Their Midterm debacle set the stage for the 1932 election, when Republicans lost the White House for twenty years, and lost Congressional power for three generations.  Over the next 62 years, Republicans had ten years of intermittent rule in the Senate and led only two separate Congresses in the House.

America redefined itself in the 1994 Midterm elections.  President Bill Clinton had overreached on universal healthcare.  There was a revitalized Republican Party, fueled by Conservative Talk radio and the visionary leadership and aggressive tactics of Newt Gingrich. Democrats were shocked, losing 53 House and 7 Senate seats.  This brought Republican rule to the House for the first time since the 1952 election, a forty-two year hiatus.  Only one Republican Member had served in the previous Republican era – as a House page.

Since 1994, Republicans have dominated the Legislative Branch, even gaining 6 House and 2 Senate seats in the 2002 Midterm, in the wake of the 9/11 terrorist attacks.  Bush Administration unpopularity and Congressional scandals led to voters ending Republican rule in the 2006 Midterms.  President Obama’s policy overreach, Conservative Talk Radio, and the rise of digital and social media, brought Republican majorities back to the House in the 2010 Midterms and the Senate in the 2014 Midterms.

No matter the outcome of the 2018 Midterms, the wisdom of those who struck the balance between responsive and responsible government in the U.S. Constitution will once again be vindicated.

Scot Faulkner advises corporations and governments on how to save billions of dollars by achieving dramatic and sustainable cost reductions while improving operational and service excellence. He served as the Chief Administrative Officer of the U.S. House of Representatives. He also served on the White House Staff, and as an Executive Branch Appointee.

 

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May 30: Counting The Personal Cost: Impact Running For Elected Office & Serving In Congress Has On Members And Their Families – Guest Essayist: James D. Best

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In his recent retirement announcement, Paul Ryan said, “It’s easy for it to take over everything in your life.” The Speaker of the House added, “If I am here for one more term, my kids will only have ever known me as a weekend dad. I just can’t let that happen.”

Many find it hard to believe that Ryan would put his family above one of the most powerful positions in our nation’s capital. Most politicians never willingly forego the power that comes from high office. I have no insight into Ryan’s motivations, but in preparation for this article, I interviewed the wife of an eight-term congressman, and she confirmed that public office has an enormous impact on members and their families.

First, the background. Lee Terry represented Nebraska’s 2nd congressional district from 1999 to 2015. Prior to winning a house seat, he had served in Omaha city politics and had a successful law practice. When elected, his two boys were pre-school age. (Their third son was born later.) Neither Lee nor his wife, Robyn, came from wealthy families and they hadn’t accumulated much savings at this point in their careers.

Being a congressperson or senator is like having three jobs that consume every waking moment. There are congressional duties, constituent services in the home district, and near continuous campaigning and fundraising. For the first few months, Lee’s family lived in Omaha, but since he was seldom home, they decided to move to Washington D.C. That didn’t work as expected, so they ended up returning to Omaha. In frustration, they realized that neither location allowed for a normal family life.

When they lived in Omaha, Lee spent his at-home weekends going to meetings and events. The public perception is that when a congressperson is home, they’re on vacation. Not true. The life of a legislator at home is all work, and Lee couldn’t even fly back and forth without other passengers interrupting him as he tried to catch up with his work. Everyone jockeys to meet their legislator, especially when they’re new. During his first three months in office, Lee literally worked until 8:00 PM every night. People wanted to meet with the new congressman, and many wanted the congressman to tour their business. Events from parades to dinners to breakfast get-togethers were constant. Few invites were declined because elections fall every two years and raising campaign money becomes a constant requirement. At first, Lee and Robyn tried to set Sunday aside as a “no touch day”. Then Sunday dinner as a “No touch time.” Neither worked. They needed to line-out time on the schedule for family events, and at times that didn’t work. Weekends became a blur. For the entire sixteen years, home life was rife with interruptions, and no holidays were private except for Christmas. Worse, when they were able to arrange a family outing, everyone felt free to approach Lee to express an opinion, ask for a favor, or merely say hello.

When they moved to Washington D.C., they assumed Lee would be home in the evenings with his wife and young children. Except that he still needed to return to Omaha most weekends, and many of his weeknights included evening events or occasionally votes. Robyn had expected an active social life with other spouses, but it was not as active as she supposed. Only about twenty percent of congressional families live in D.C., and those that did were spread all over the city. Except for friends in the immediate neighborhood, social interaction with other spouses was limited to formal events. Robyn began to feel isolated. Her large cadre of friends and relatives remained in Omaha. She had no relationship or history with local health providers. Then their oldest reached school age and she wanted her son to attend public school with his friends in Omaha.

Moving to D.C. did make Lee’s Omaha-based work easier. He could perform his district duties without trying to balance family life and he felt less guilt about being pulled away from home so often. Despite this positive aspect of living in D.C., they moved back to Omaha.

As children of elected officials get older, they also sacrifice for their parent’s profession. The biggest problem was loss of anonymity, which is very difficult for teenagers. On occasion, they heard criticisms of their father, in the media, at school, or at social gatherings. The boys were also admonished to always behave properly and not get in any newsworthy trouble.

Dealing with reality versus perception presented another challenge. Issues and people in the media are distorted for political purposes. Politicians understand that the opposition will build misperceptions about who they are, what they’re doing, and why they’re doing it. It comes with the territory. But spouses, children, and other relatives must live daily with slanted attacks on one of their beloved family members.

Money presented another sacrifice. Lee’s congressional salary when elected was $136,700. Over the years, he would have done better financially if he had continued to build his law practice. He and his wife understood this when they chose public service, but it still startled them to watch their peers out-earn them so dramatically. Even the rich sacrifice financially because they no longer have the same freedom to direct investments in their field of expertise.

Another popular perception is that when a person leaves Congress, they find abundant opportunities to make piles of money. This is seldom true in their old profession. For example, after an absence of sixteen years, Lee’s professional connections and access to historic resources had diminished. It’s like starting your profession all over again, but now from middle-age.

The two chambers also make different demands on families. Senators have longer terms, which lessens the need for constant campaigning, and they deal with fewer constituent services. Still, even senators are on call at all hours of the day and night.

Although we like to think that anyone can run for office, wealth makes it far more comfortable. Fundraising comes easier, two homes are affordable, travel more private and luxurious, and private schools de rigueur.

Being a congressional family is not all bad, of course. In many cases, the entire family gets to meet the president and other high officials. Children are often familiar with people in the news. A congressperson’s family has access to areas, like the capitol dome, others never see. And, hopefully, there is the satisfaction of knowing you walk in the shadow of giants and have done your best to protect our country and improve the life of its citizens.

Being an elected public official is a difficult lifestyle for both the office holder and his or her family. A thank you might be in order the next time you meet your representative or senator.

James D. Best, author of Tempest at Dawn, a novel about the 1787 Constitutional Convention, Principled Action, Lessons From the Origins of the American Republic, and the Steve Dancy Tales.

 

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May 29: Campaign Finance: A History, Related Laws, And Impact On Running For Congress – Guest Essayist: The Honorable Frank M. Reilly

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Over the last 111 years, Congress has sought to regulate how its own elections are financed.  Like most regulations, campaign finance laws have become increasingly more intensive and complex, though the U.S. Supreme Court has occasionally stepped in when Congress has overstepped either the powers granted to it in Article I of the Constitution, or the First Amendment rights of candidates, citizens, or associations of citizens.

As with most legislation, campaign finance laws result from a perceived abuse of power or of the process.  And as the law changes, its subjects, like a stream of water that finds its way around an obstacle to continue its downstream flow, find new ways around the law.

While the bulk of federal campaign finance law has been enacted after the Watergate era of the early 1970s, the issue in the United States predates our Constitution.  In 1758, George Washington’s purchase of 144 gallons of hard cider, wine, and punch to encourage voters to support his election to Virginia’s House of Burgesses was a catalyst for that very body to later ban the gifting of “money, meat, drink, entertainment or provision or …any present, gift, reward or entertainment etc. in order to be elected.”[1]

The U.S. Congress first began regulating campaign finance in 1907 with the passage of the Tillman Act, 34 Stat. 864 (January 26, 1907), which banned corporate contributions to candidates for federal office.[2]  Congress enacted the Tillman Act to respond to increased contributions by corporations in the 1904 election, and President Theodore Roosevelt, a key beneficiary of those contributions sought to remove corporations from the realm of political activity.

The 1910 Federal Corrupt Practices Act and its 1911 and 1925 amendments created the first campaign finance disclosures and imposed spending limits,[3] but the Supreme Court held the spending limits for primary elections to be unconstitutional.[4]

After World War II, the labor movement increased with greater unionization of employees, and many labor unions began efforts to force all employees to join the unions.  During the war, the unions did not strike against the employers in a common effort to keep the nation’s war response engaged.  However, after the war, unions began striking against employers with greater frequency, and they became politically active.

In turn, Congress began restricting labor union political activities with the passage of the Smith-Connally and Taft-Harley Acts,[5] and also began prohibiting independent expenditures of not only labor unions but also corporations.  To get around the restrictions, labor unions, and later corporations, created political action committees (“PACs”), in which individuals contributed their own funds to a PAC but the labor union leadership often controlled the donations to candidates.

In 1971, Congress passed the Federal Election Campaign Act[6] (“FECA”) which instituted some campaign finance regulations on federal elections, primarily requiring disclosure of contributions and expenditures.  The Federal Election Campaign Act Amendments of 1974[7] passed in the midst of Congressional hearings concerning the Watergate scandal, imposed an overall scheme of campaign finance regulations.  These regulations essentially replaced the entirety of the 1971 Act and instituted comprehensive restrictions on federal campaign contributions and expenditures, enacted new registration and public disclosure requirements, created voluntary public financing of presidential campaigns, and created the Federal Election Commission to administer and enforce the new laws.

Former U.S. Senator James L. Buckley and others challenged the 1974 enactment, and the U.S. Supreme Court upheld contribution limits, public disclosure requirements, and the voluntary public funding of presidential campaigns, but struck down limits placed on spending by candidates for the U.S. Congress.[8]  The Supreme Court recognized that “[a] restriction on the amount of money a person or group can spend on political communication during a campaign necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached.”[9]

Similar to the reaction to the law enacted in the 1940’s in which labor unions created PACs to get around the law, the individuals and groups regulated by the 1974 FECA amendments instituted new campaign practices to cope with the law.

National political parties began using “non-federal” or “soft money” accounts that were not subject to the individual campaign contribution limits for their party building activities.  Other organizations, including PACs, labor unions, trade organizations, and corporations began running issue advertisements that did not fall within the restrictions FECA placed on “express advocacy” communications that advocated for the election or defeat of a particular candidate.

An example of an issue ad that might appear on television or on the radio would go like this:  “Senator Jones opposes laws that would protect the environmentally sensitive Chesapeake Bay, endangering the survival of fish and birds that rely on clean water. Call Senator Jones at 202-224-3121 to tell him to support S. 2053 to protect Chesapeake Bay.”  These issue ads were unregulated, and no registration at or disclosure to the FEC was required.

Congress began regulating issue ads and party building with soft money by enacting the Bipartisan Campaign Reform Act of 2002[10] (“BCRA”), more commonly known as the McCain-Feingold Act.  The courts have upheld most of BCRA’s provisions, but the Supreme Court struck down the law’s attempts to prohibit independent expenditures by labor unions and corporations.[11]  Independent political expenditures are those which are made without any coordination with or prior knowledge to a federal candidate or the candidate’s political committee. A later Supreme Court ruling also struck down BCRA’s overall limits that individuals may give to all federal candidates and committees in the aggregate during a 2-year period.[12]   The Supreme Court weighed First Amendment rights of persons and associations of persons (including corporations and unions) against the desire by Congress to prevent corruption resulting from large campaign contributions and reasoned that if expenditures are independent from a candidate, the expenditures are far less likely to have any sort of corrupting power.

After the Supreme Court decisions that pushed back on BCRA, corporations, labor unions, and even wealthy individuals were allowed to make essentially unlimited independent expenditures to support or oppose federal candidates.  These associations created what are known as Super PACs.  A Super PAC does not make direct contributions to candidates, but instead allows individuals, or associations of individuals such as corporations or labor unions, to create an entity that makes independent expenditures in support or opposition to a federal candidate, so long as those expenditures are not in any way controlled by, made in coordination with, or in any way in consultation with a federal candidate or the candidate’s committee.

As each law was enacted, or modified by the courts, congressional candidates have adjusted their campaign fundraising.  In the early days, prior to 1910, candidates faced no restrictions and could raise and spend whatever funds they needed in order to run their campaigns.  With the advent of disclosure laws in 1910 and 1911, candidates would obviously be more discerning about the persons they solicited to avoid contributions from persons, or even the size of contributions that might negatively affect their campaign.  With the creation of PACs, greater funds could be channeled to candidates, and with the Super PACs, virtually unlimited amounts could be raised; however the Super PAC funds have to be fully independent from a candidate or a candidate’s committee.

The laws have affected campaigns in other ways.  Most campaigns now engage lawyers and accountants who specialize in campaign finance law, an expense unknown to congressional candidates for the first 200 years of the republic.

With larger numbers of people to reach as our nation’s population grows, and newer forms of communication, some of which remain expensive, the cost of political campaigns has grown significantly from the time that campaign finances began to be regulated.  According to the website OpenSecrets.org, the average winning candidate for U.S. Senate spent about $10.4 million through the last month of the campaign, and the average winning candidate of the U.S. House spent $1.3 million.[13]  Super PACs and other independent political groups spent nearly the same amount on Congressional candidates.[14]  This is a long way from the $195 (in today’s dollars) that George Washington reportedly spent on liquor to earn a seat in the Virginia Colony’s House of Burgesses in 1758,[15] but he had far fewer voters to reach, about 2,000[16] as opposed to the approximate 710,000 persons per congressional district as set forth after the 2010 census.[17]

______________________

Frank M. Reilly teaches constitutional law, election law, and other political science courses at Texas Tech University. He is also a lawyer in private practice in Horseshoe Bay, Texas, and serves as a municipal judge for two Texas cities.  Follow him on Twitter @FrankReilly or on Facebook at JudgeFrankReilly.

[1] Jim Moyer, “Washington Wins First Election 1758 House of Burgesses,” <http://frenchandindianwarfoundation.org/event/washington-wins-first-election-1758-house-of-burgesses/>.

[2] J. Michael Bitzer, “Tillman Act of 1907,” The First Amendment Encyclopedia, <https://mtsu.edu/first-amendment/article/1051/tillman-act-of-1907>.

[3] CQ Researcher, “Revision of Federal Corrupt Practices Act,” Congressional Quarterly, <http://library.cqpress.com/cqresearcher/document.php?id=cqresrre1931070100>.

[4] Newberry v. U.S., 256 U.S. 232 (1921).

[5] Pub.L. 78-89, 57 Stat. 163 (June 25, 1943) and Pub. L. 80-101, 61 Stat. 136 (June 23, 1947), respectively

[6] Pub.L. 92–225, 86 Stat. 3 (February 7, 1972).

[7] Pub.L 93-443, 88 Stat. 1263 (October 15, 1974).

[8] Buckley v. Valeo, 424 U.S. 1 (1976).

[9] Id., 424 U.S. at 19.

[10] Pub.L. 107–155, 116 Stat. 81 (March 27, 2002).

[11] Citizens United v. Federal Election Comm’n, 558 U.S. 310 (2010).

[12] McCutcheon v. Federal Election Comm’n, 572 U.S. ___, 134 S.Ct. 1434 (2014).

[13] Soo Rin Kim, “The Price Winning Just Got Higher, Especially in the Senate,” <https://www.opensecrets.org/news/2016/11/the-price-of-winning-just-got-higher-especially-in-the-senate/>

[14] Id.

[15] Jaime Fuller, “From George Washington to Shaun McCutcheon:a Brief-ish History of Campaign Finance Reform,”” Washington Post (April 3, 2014), <https://www.washingtonpost.com/news/the-fix/wp/2014/04/03/a-history-of-campaign-finance-reform-from-george-washington-to-shaun-mccutcheon/?utm_term=.1c14f5651186>

[16] Each county in the Virginia Colony would send 2 members to the House of Burgesses, and in 1858 there were approximately 100 counties in Virginia, which then had a population of about 250,000. “Estimated Population of American Colonies,1610-1780” <https://web.viu.ca/davies/h320/population.colonies.htm>.

[17] U.S, House of Representatives, “Proportional Representation,” <http://history.house.gov/Institution/Origins-Development/Proportional-Representation/>

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May 28: A Memorial Day Message by Constituting America Founder & Co-President Janine Turner

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Constituting America first published this message from Founder & Co-President Janine Turner over Memorial Day Weekend, 2010, the inaugural year of our organization.  We are pleased to share it with you again, as we celebrate our 8th birthday!  

On this Memorial Day weekend, I think it is appropriate to truly contemplate and think about the soldiers and families who have sacrificed their lives and loved ones, and given their time and dedication to our country.

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May 24: Election Of Congress: Why Election Method Matters For Stability And Continuity Of Representative Government – Guest Essayist: Gary R. Porter

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The election of Congress ought not be controversial, Americans have been electing their representatives in this country off and on for four hundred years.[1]  But of course it is quite controversial, made so by what’s at stake: raw political power.  Whichever political party controls Congress controls the most important and powerful branch of government.  While some Americans view the Executive Branch as the pre-eminent, most powerful branch of the three, even a superficial comparison shows this to be incorrect – Congress rules!

The “election method” of Congress has many facets: who is entitled to vote, how they vote, even such mundane things as how votes are counted (does a hanging chad count?).  As Madison reminds us: “the essence of government is power and power, lodged as it must be in human hands, will ever be liable to abuse.”[2] And abuse we have: election fraud is a problem and growing [3]despite charges by some that such claims are a myth.[4]

Popular elections by the people were so liable to abuse that the Framers discarded this method when considering the election of the President, and decided instead on “Electors chosen for that purpose.”  In Speaking of abuse, in 1777, James Madison lost the only election he would ever lose, to the Virginia House of Delegates, because he refused to provide Orange County voters with “spirituous liquors,” which his tavern-owner opponent could (and did) pour abundantly.

So let us consider first the question of who should be allowed to vote.

The Constitution presumes, but does not require, voting by the people.  It is difficult to see how voting could be supported as a natural, inalienable right, so it must therefore be a civil right, one subject to denial or change at the whim of the government.

The Founders are repeatedly denigrated today for not allowing women to vote; and while there is some truth to the claim, unmarried women were allowed to vote in some states as long as they met the property requirements of “freeholders.”  Why unmarried women only?

Under the English common law doctrine of coverture, the husband “covered” his wife’s legal identity throughout their marriage. Blackstone’s Commentaries described it this way:

“By marriage, the husband and wife are one person in the law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband: under whose wing, protection, and cover, she performs every thing.”

The husband’s vote was thus viewed as reflective of the interests of the entire family.

The amount of property a person must own to vote varied from state to state, but the prevailing notion supporting a property requirement was that this produced a polity with “skin in the game,” voters more likely to vote with care; their property potentially at jeopardy through a careless or ill-informed choice.

Today, property requirements for voting have been removed, and the franchise limited only by age and citizenship.  Which provides the basis for another controversy: why limit voting to citizens?  Shouldn’t, every tax-payer, whether citizen or not, whether in the country legally or illegally, be able to vote? Shouldn’t they also have a say, through the ballot box, in how their taxes are spent?  Many on the Left certainly think so.  Others see voting as not just a privilege, but a high privilege of citizenship.

“Let each citizen remember at the moment he is offering his vote that he is not making a present or a compliment to please an individual – or at least that he ought not so to do; but that he is executing one of the most solemn trusts in human society for which he is accountable to God and his country,” wrote Samuel Adams.[5]  (Emphasis added)

Our dismal voting participation rate, hovering as low as 37% in mid-term elections, vividly demonstrates the sense of hopelessness many feel when considering the effect their individual vote will likely have on the trajectory of the country.  Career politicians, acting in their own self-interest, are perpetually elected thanks to powerful moneyed interests; a recipe for disaster.

With a re-election rate of well over 90% it seems hard to believe that we have an entirely new House of Representatives every two years, but that is exactly what the Framers intended.  In fact, it has been said that a Representative is always running for office; no sooner does he or she catch their breath from the last (successful) campaign when they must start all over again with a new one.

Not so with the Senate; the Senate was intended to be the more stable and deliberative of the two houses of Congress.  Thus, the Senate does not change personnel en masse like the House; only a third of the Senators are up for reelection each time; and this was by design as well.

Although some today decry the filibuster rule in the Senate, I think a bigger problem to the long-term health of the republic lies in the fact that Senators are no longer appointed by their states.  Thanks to the 17th Amendment, Senators are elected by the people of the state and no longer vote in line with the interests of the legislature of their state as they once did.  This Amendment permanently shifted the intended balance of power in Congress, to the disfavor of the states which created the government in the first place.  To restore that balance of power will require the repeal of the 17th Amendment, and that proposal is shrouded in controversy.

It is important to the principle of self-government that there be continuity and stability in the Congress, and the initial Constitutional design was intended to produce just that.  But the original balance of power in Congress is equally important, and that deserves our attention today.

Gary Porter is Executive Director of the Constitution Leadership Initiative (CLI), a project to promote a better understanding of the U.S. Constitution by the American people.   CLI provides seminars on the Constitution, including one for young people utilizing “Our Constitution Rocks” as the text.  Gary presents talks on various Constitutional topics, writes a weekly essay: Constitutional Corner which is published on multiple websites, and hosts a weekly radio show: “We the People, the Constitution Matters” on WFYL AM1140.  Gary has also begun performing reenactments of James Madison and speaking with public and private school students about Madison’s role in the creation of the Bill of Rights and Constitution.  Gary can be reached at gary@constitutionleadership.org, onFacebook or Twitter (@constitutionled).

[1] The  first elected government was installed at “Jamestowne” in 1619.

[2] sSpeech in the Virginia constitutional convention, 1829

[3] See: http://dailycaller.com/2016/10/20/heres-what-voter-fraud-looks-like-in-23-states/

[4] See: https://www.brennancenter.org/issues/voter-fraud

[5] in the Boston Gazette, 1781.

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May 23: Direct Election And How The Number Of Constituents Per Congressional District Affects Representation – Guest Essayist: Joerg Knipprath

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Republican government operates through voting and representation. In a geographically large polity, physical distance makes direct voting by its citizens impractical. In a populous polity, direct voting by citizens likewise becomes impractical, as it is difficult for a significant number of them to engage in proposing and debating public measures, or, as was the case even in ancient Athens, to find a place for all to gather. In both scenarios, the principle of consent of the governed as the ethical basis of the government is eroded as popular participation diminishes. Political participation must then be channeled into electing representatives who will vote on the citizens’ behalf in the law-making assembly. Setting the qualifications of those entrusted with the vote and defining the basis of the representational system thus become crucial endeavors for the polity. The focus in this essay is on the nature of representation.

As the writers of The Federalist Papers explained, a representational system based on population must address two conflicting pressures. The population in the relevant districts must be sufficiently small that the representative realistically may be said to reflect the concerns of his constituents, yet not so small as to increase the size of the assembly to the point of functional ineffectiveness. As James Madison observed in Federalist 52, “[I]t is particularly essential that the [House of Representatives] should have an … intimate sympathy with, the people.” At the same time, he wrote four essays later, “The truth is, that in all cases, a certain number at least seems to be necessary to secure the benefits of free consultation and discussion; and to guard against too easy a combination for improper purposes: as on the other hand, the number ought at most to be kept within a certain limit, in order to avoid the confusion and intemperance of a multitude….Had every Athenian citizen been a Socrates, every Athenian assembly would still have been a mob.” The Philadelphia Convention set the original apportionment among states at no more than one seat in the House of Representatives for each 40,000 residents. On the last day of the Convention, that was decreased without debate to 30,000, a number that James Madison in Federalist 56 noted to be the ratio in the British House of Commons, as well.

The concern about districts that are too populous ties into the broader question of what constitutes a political “community.” That concern is not new. In his book The Laws, Plato put the ideal size at 5,040 citizens. Reflecting his Pythagorean fascination with numbers and mathematical precision, that size is the product of multiplying numbers 1 through 7 by each other. Since “citizens” did not include women, children, metics (aliens), and slaves, the actual population of such a community likely would be between 30,000 and 50,000, with 40,320 being Plato’s citizen number multiplied by 8. In what is unlikely to be coincidental, James Madison in Federalist 57 notes that House members would be elected by 5000 to 6000 citizens each. Aristotle was less precise. He opined that the polis had to be large enough to be self-sufficient, yet not so large that people did not know each other and order could not be maintained. Although Athenian citizens voted directly in the democratic assembly, the same measures of community would apply in a republican system of representation by districts. To exercise wise judgment in political matters, either as a voter or representative, it helps to know your fellow citizens personally and their concerns and interests. As Madison agreed in Federalist 56, “It is a sound and important principle, that the representative ought to be acquainted with the interests and circumstances of his constituents.”

With the large population of the United States, representation in the House is now based on districts that each have, on average, about three-fourths of a million residents, roughly the size of the largest state in the Union in 1790, Virginia. This departs grotesquely from the traditional understanding of community and calls into question how “republican” the system of governance in the United States is today. The vast majority of voters cannot personally get to know the candidates, or they the voters. Voters cannot gage accurately the general community concerns and interests, as they cannot interact extensively with a sufficient number of their fellow-residents. Campaign flyers the month before the election, occasional forums before necessarily limited numbers of constituents, and, from only a few representatives, a brief message or constituent survey once or twice a year cannot establish the requisite relationship for truly republican self-government. Much “debate” of issues occurs either through mass distribution of brief collections of grossly distorted “facts” in campaign literature, unverifiable claims in “robocalls,” and maudlin appeals to emotions in televised ads, or through the musings of “talking heads” colored by personal ideology or financial interest. As a result, voter confusion and ignorance increases. Many are turned off by the process and, from this alienation, voter participation decreases. That, then, empties “consent of the governed” of its practical content and threatens to make it an entirely theoretical construct to hide the actions of an oligarchic government of the elite, by the elite, and for the elite.

Two factors might counteract the threat that populous districts pose to the republican principle of representation. One is the technological revolution that allows participation via one’s computer in virtual “town halls” with candidates and in debates among constituents through blogs or other websites. The second is that matters of national importance such as war, foreign relations, interstate commerce, immigration, and a sound currency affect all Americans. Therefore, there is less salience to the idea that a representative need be clearly cognizant of the particular sentiments of his district’s inhabitants.

As to the first, Madison addressed in Federalist 10 how the small number and physical proximity of local populations facilitates communication of ideas and conformity of interests. While he certainly did not consider this an unmixed blessing in either a democratic assembly or a legislative body, he accepted it as a traditional aspect of self-rule. However, the sheer number of potential participants and the necessarily limited time and frequency of virtual “town halls” still makes connection on a personal level among participants and with their representative unlikely.

Other versions of electronic communication have led to “virtual communities” that form apart from physical domiciles. There are several problems here. Those communities often are national, if not international. Their interests and concerns, and those of the blogger, may not reflect those of the district that elects the representative. Moreover, experience tells us that much debate on those blogs by commenters involves irrelevancies and digressions, as well as invective that, were it delivered in person rather than through the safety and anonymity of the computer keyboard in an undisclosed location, would be strongly curtailed. Such distractions would be much less likely to be tolerated in a physical meeting. The absence of an enforced agenda and the lack of civil discourse in such settings again alienates many, who then choose not to participate. Finally, there are intangible aspects to physical interactions that facilitate personal bonds and resolution of problems. Those aspects are lacking when discussion occurs through disconnected remarks among an atomized group of physically isolated commenters.

As to the second, the immediately obvious problem is that Congress no longer limits its legislation to truly national issues. Instead, the expansion of Congress’s substantive powers regarding interstate commerce, taxation, and spending, approved in Supreme Court opinions, brings personal decisions and policies that have predominantly local effect within Congress’s reach. For such issues, the particular needs and interests of local minorities are more likely to go unrepresented in larger, more homogenized districts. This is especially true since the Supreme Court has held that any population inequality in a state’s congressional districts will be closely scrutinized, thereby making it more difficult to adjust district boundaries to give such minorities a voice. As well, the problem of very large populations within legislative districts applies to many state and local bodies who are not dealing with national issues, but whose policies also are increasingly restrictive against personal actions. While it is admittedly an outlier, the five-member Los Angeles County Board of Supervisors makes policy that potentially affects over 10 million residents. California State Senate districts have about a million residents apiece; each Assembly district has a half-million, larger than all but one state in 1790. Some states and most localities have smaller districts, but other populous states’ legislatures operate similarly.

Another aspect of republican doctrine about representation is the requirement that two legislative chambers must concur in legislation. Bicameralism is not an essential republican feature, but it is nevertheless common. Such division serves to control the passions and self-interest of the general citizenry and, therefore, of their representatives, that is, “the propensity of all single and numerous assemblies, to yield to the impulse of sudden and violent passions, and to be seduced by factious leaders into intemperate and pernicious resolutions,” per Madison in Federalist 62. The typical form is that the “lower” chamber represents the interests of the numerically predominant social or economic class, and the “upper” house represents a different class, usually deemed wiser and more dispassionate in its deliberations for the common good.

There have been many forms of bicameralism. Even the ancient Athenian democracy did not place unrestricted power in the citizenry gathered in the popular Assembly. There was a Council of 500, apportioned equally among ten districts, whose members were chosen by lot (akin to a jury system). Each month of the ten-month “Conciliar Calendar” year, a district’s members would compose the 50-member steering committee that controlled the legislative agenda of the Assembly, especially in financial matters. In the Roman Republic, power was divided between the patrician Senate of the landed aristocracy and various assemblies of the plebeians. Those assemblies were further divided among six plebeian classes based on their wealth. That division maximized the power of the knights (“equites”), the wealthiest of the commoners, and minimized the influence of the poor.

Such wealth-based or status-based division has been a common form of bicameralism. When Britain controlled the American colonies, Parliament was composed of the House of Lords, whose members were certain high-level clergy of the Church of England (“Lords Spiritual”) and the hereditary landed high nobility (“Lords Temporal”), and the House of Commons, which represented the gentry and commercial classes. In the early United States, the Massachusetts Constitution of 1780 specified that males meeting a set property qualification could vote. However, the two houses of the General Court (legislature) were based on different political principles and had different qualifications for the members. The state’s House of Representatives was apportioned on the basis of population (actually, qualified voters) in incorporated towns. The Senate was apportioned among districts based on their wealth, as measured by the taxes collected from that district. The members of the House had property qualifications significantly higher than the voters, and the members of the Senate had property qualifications twice as high as those for the House. Such tiered property qualifications were not uncommon for voters and representatives in state legislatures for several decades after independence. As well, distinct methods of apportionment between the chambers of the legislature, as in the Massachusetts model, were common.

The Articles of Confederation provided for only a single chamber, and representation was based on the equal status of the States as constituent members. When the Framers drafted the Constitution, the Great Compromise of 1787 resulted in a House of Representatives primarily based on population and a Senate based on the same principle of state equality as under the Articles. The division was not formally class-based. Instead, it reflected a practical accommodation of political minorities in a large and diverse political entity whose residents’ primary identity was with their local communities. From another perspective, the smaller number of Senators and their longer terms would provide the necessary independence from fleeting popular passions and foster the reflection and wisdom to restrain the feared reflexiveness and tempestuousness of the House. There were no property qualifications specified for legislators, so that the broadest pool of talent was available. As the Supreme Court found in Powell v. McCormack (1969), the Framers did not intend that Congress could add qualifications to age, citizenship, and state residency explicitly provided in the Constitution. In 1995, in U.S. Term Limits v. Thornton, the Court held, with less historical justification, that states were likewise restricted. Property qualifications for voters were left to the discretion of each state, as long as qualifications were not more restrictive than those the state had for voters for the lower house of its own legislature. By the mid-1960s, however, the Twenty-Fourth Amendment and the Supreme Court’s decision in Harper v. Virginia Board of Elections (1966) made it unlikely that any wealth-based restriction on voting was constitutional.

In 1913, the Seventeenth Amendment changed the method by which Senators were chosen. Henceforth, they would be elected directly by voters. Recent critics have called for repeal of that amendment, because they view it as having caused the decline of the states’ political influence relative to the general government. However, the change from the original method of selecting Senators was the product of a long trend, not a sudden upheaval. A proposal to amend the Constitution to provide for popular election of Senators was introduced as early as 1826. For a couple of decades before the Seventeenth Amendment was adopted, states had been moving to allow “preference elections” by the people that would recommend to the legislature the person to be selected, thereby putting political pressure on legislators to select the winner.

It is unlikely that such a repeal movement would succeed, given the current culture of activist government and the political inertia in favor of constantly expanding the totality of voters. It is also doubtful that the power of the federal government would be reduced, even if the movement were successful. It requires suspension of disbelief to think that the California legislature, whose members are increasingly drawn from the Democratic Party’s most radical factions, is suddenly going to select Senators who favor turning off the federal spigot of funds, combatting illegal immigration, or supporting a person’s right to bear arms. Politics is downstream from culture, and the majority of people favors getting government-directed largesse paid for by others. The problem for republicanism, in other words, is with the voters, not with the representatives they elect.

An expert on constitutional law, and member of the Southwestern Law School faculty, Professor Joerg W. Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. He has also spoken on business law and contemporary constitutional issues before professional and community forums,and serves as a Constituting America Fellow. Read more from Professor Knipprath at:http://www.tokenconservative.com/.

 

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May 22: Rule Of Law: Do Our Laws Apply To All? – Guest Essayist: Gary Porter

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Another principle of the Rule of Law is that all laws should apply to all the people. “[W]here there is no law, there is no liberty; and nothing deserves the name of law but that which is certain and universal in its operation upon all the members of the community,” wrote Founder Benjamin Rush in a 1788 letter to David Ramsay. (Emphasis added) Do our laws apply to all?

It is not uncommon for Congress to exempt itself from complying with certain laws.[1] Congress has exempted itself from the Whistleblower Protection Act of 1989, the Freedom of Information Act, the Age Discrimination in Employment Act, the Americans with Disabilities Act, a key provision of the Patient Protection and Affordable Care Act and many others. Interpreting Benjamin Rush, do these laws deserve the name of law if they only apply to “ordinary Americans” and not the elite of Congress?

The Rule of Law should be the bedrock of our society; but this “bedrock” has the appearance today of shifting sand. If we expect the laws of our land to be respected, we must make them respectable, and the people who make such law must act respectably in doing so, using responsibly the power the people have delegated to them and them alone.

How did we reach this point?  I lay most of the blame on the American people. Our lack of knowledge of constitutional principles today is a plague upon our society. But it was not always so in this country. In 1835, Frenchman Alexis De Tocqueville visited America and noted: “… every citizen is taught…the history of his country, and the leading features of its Constitution.  … it is extremely rare to find a man imperfectly acquainted with all these things, and a person wholly ignorant of them is sort of a phenomenon.”[2]  Today, unfortunately, it is extremely rare to find an American citizen who can discuss features of his Constitution. In a recent poll, thirty-seven percent of Americans could not name a single right secured by the First Amendment.[3]

Our educational system is also partly to blame for not teaching these important constitutional principles. Due to our ignorance, we then send the wrong people to represent us in Washington. We choose the wrong representatives because we don’t know enough to ask the right questions as they run for office. Instead of asking them what they intend to do to “fix Washington,” we should first determine their view of law, the Rule of Law, and the role Congress should play in representing “We the People” in writing our laws.

We can return to an authentic and respectable Rule of Law in this country, but it will require some effort.  My suggestions:

  • Insist that Congress once again exercise the exclusive legislative authority they were intended to have. If Congress insists that certain proposed legislation exceeds their technical expertise, let executive branch agencies propose rules; but those rules must first be submitted to a vote of Congress before they can take effect. This change would not require a Constitutional amendment, only a rule change within Congress.
  • Require that every law passed by Congress applies to them – no exceptions. A “28th Amendment” has been making the rounds of the Internet the last few years. It reads: “Congress shall make no law that applies to the citizens of the United States that does not apply equally to the Senators and/or Representatives; and, Congress shall make no law that applies to the Senators and/or Representatives that does not apply equally to the citizens of the United States.”  Since it is unlikely Congress will make such a change voluntarily, a Constitutional amendment will likely be needed and such an amendment would likely only come from an Article V Convention.
  • Taking Madison’s warning to heart, the days of 2000-page bills should end. Bills should encompass a single topic and be limited to perhaps 100 pages, sufficiently short to be read in a single sitting.
  • The original Constitution established only four federal crimes: treason, bribery, piracy and counterfeiting. There are estimated today to be in excess of 4500 federal crimes.[4] It has been suggested that so many unknown crimes exist in the Code of Federal Regulations that every citizen violates at least one federal law each day, perhaps as many as three, making all of us potentially federal criminals should a federal prosecutor take interest in us.[5] This must stop.  There should be a methodical scrub of the CFR and antiquated, absurd or redundant federal crimes removed.[6]
  • We as a people should consider whether the principle of judicial precedent really serves republican purposes. A court’s opinion should be deemed to apply only to the two litigants in a case. When the Chief Justice of the Supreme Court charges that five of his colleagues have acted like a legislature, they should take note and change their behavior/opinion.

Gary Porter is Executive Director of the Constitution Leadership Initiative (CLI), a project to promote a better understanding of the U.S. Constitution by the American people.   CLI provides seminars on the Constitution, including one for young people utilizing “Our Constitution Rocks” as the text.  Gary presents talks on various Constitutional topics, writes a weekly essay: Constitutional Corner which is published on multiple websites, and hosts a weekly radio show: “We the People, the Constitution Matters” on WFYL AM1140.  Gary has also begun performing reenactments of James Madison and speaking with public and private school students about Madison’s role in the creation of the Bill of Rights and Constitution.  Gary can be reached at gary@constitutionleadership.org, on Facebook or Twitter (@constitutionled).

[1] See: https://nationalinterest.org/feature/congress-acts-its-above-the-law-23400.

[2] de Tocqueville, Alexis (1835). De la démocratie en Amérique. (1 ed.). Paris: Librairie de Charles Gosselin.

[3] https://www.washingtontimes.com/news/2017/sep/13/37-percent-of-americans-cant-name-any-of-the-right/.

[4] https://www.wsj.com/articles/SB10001424052748703749504576172714184601654.

[5] https://www.amazon.com/Three-Felonies-Day-Target-Innocent/dp/1594035229.

[6] You are a federal criminal if you denigrate the character of Woodsy the Owl or his motto: “Give a hoot, don’t pollute.”

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May 21: Rule Of Law As The Bedrock Of American Society – Guest Essayist: Gary Porter

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“If it be asked, What is the most sacred duty and the greatest source of our security in a Republic? The answer would be, an inviolable respect for the Constitution and Laws — the first growing out of the last.”[1]

Alexander Hamilton goes on to point out that: “The instruments by which [government] must act are either the AUTHORITY of the laws or FORCE. If the first be destroyed, the last must be substituted; and where this becomes the ordinary instrument of government there is an end to liberty!”[2] Where there is no respect for the law, where it has no authority, liberty ends — slavery begins.

“A Republic, if you can keep it,” cautioned Mr. Franklin. A key ingredient of this “keeping,” if Hamilton is to be believed, must certainly be a uniform respect for and obedience of the law. Said another way: the Rule of Law is the bedrock of our society.

But what does “Rule of Law” really mean? Would we know it when we saw it operating? Wikipedia answers: The rule of law is the principle that law should govern a nation, as opposed to being governed by decisions of individual government officials.”[3]

“[A] government of laws, and not of men,” is how John Adams put it.[4] But the phrase “Rule of Law” presumes we understand what law itself is. Do we?

“…[L]aw and liberty cannot rationally become the objects of our love” (or our respect, we might add) “unless they first become the objects of our knowledge,” states Founder James Wilson of Pennsylvania.[5] So as we begin this discussion of “The Meaning of the Rule of Law and its importance to the functions of Congress in representing the American people,” we should first examine what “law” itself is; what does it encompass? The answer is not as simple as some might suppose.

Noah Webster provides this founding-era definition of law: “A rule, particularly an established or permanent rule, prescribed by the supreme power of a state to its subjects, for regulating their actions, particularly their social actions.”[6] Many authorities point to the Code of Hammurabi (1754 B.C.) as one of the oldest written systems of law, predating even the Ten Commandments (~1513 B.C.), but “Be fruitful, and multiply, and replenish the earth, and subdue it,” God’s first oral commandment to man in Genesis 1:28, predates them both.

Even earlier came the Law of Nature. As Sir William Blackstone explains:

“For as God, when he created matter, and endued it with a principle of mobility, established certain rules for the…direction of that motion; so, when he created man, and endued him with freewill to conduct himself in all parts of life, he laid down certain immutable laws of human nature, whereby that freewill is in some degree regulated and restrained, and gave him also the faculty of reason to discover the purport of those laws.”[7]

As Blackstone argues, the Law of Nature should have been discoverable by reason and inquiry. Should have been. But man quickly showed a propensity for “missing it.”[8] God took action.

“[D]ivine providence… in compassion to the frailty, the imperfection, and the blindness of human reason, hath been pleased, at sundry times and in diverse manners, to discover and enforce its laws by an immediate and direct revelation. The doctrines thus delivered we call the revealed or divine law, and they are to be found only in the holy scriptures.”[9] Ergo, the “Laws of Nature and [the Laws of] Nature’s God.”[10] Finally, along came civil laws, such as those of Hammurabi.

So there are three systems of law – natural law, revealed law and civil law — the last deriving its authority from the first. But is all civil law, “good” law? Does it automatically deserve our respect and obedience simply because it has been created by our duly elected representatives? What if in promulgating civil law a conflict is created with natural or revealed law? Frederick Bastiat answers:

“No society can exist unless the laws are respected to a certain degree, but the safest way to make them respected is to make them respectable. When law and morality are in contradiction to each other, the citizen finds himself in the cruel alternative of either losing his moral sense, or of losing his respect for the law—two evils of equal magnitude, between which it would be difficult to choose.”[11]

“Bad laws are the worst sort of tyranny,” said Englishman Edmund Burke.[12] The Roman historian Tacitus expressed a similar sentiment: “Formerly we suffered from crimes. Now we suffer from laws.” “[I]f the public are bound to yield obedience to laws to which they cannot give their approbation, they are slaves to those who make such laws and enforce them,” complained “Candidus” in the Boston Gazette on January 20, 1772. Finally, a civil law which contravenes natural law is either “spoilt law” (Thomas Aquinas)[13] or of “no validity” (Blackstone).[14] Clearly, not all laws are created equal.

Which brings us to Congress. We know from Article 1, Section 1, that the Constitution gives all legislative power to Congress. According to the separation of powers doctrine put forth by Charles-Louis de Secondat, Baron de La Brède et de Montesquieu (the most quoted philosopher of law at the Constitutional Convention), law-making is thus the legitimate purview of neither the Executive nor Judicial branches of government. That’s not the way things work today, but more on that later.

Congress, representing the people, makes laws for the government of the people. But it stands to reason that they should only make laws which reflect the will of the people and which are in the people’s best interest. That also does not always happen today.

Finally, Congress does not have the constitutional authority to make any old laws. According to James Madison, their legislative jurisdiction is (or was) limited “to certain enumerated objects.”[15]

The process by which Congress and the President turn a bill into a law is pretty well-known and will not be repeated here. I should point out, however, that one feature of that process, whereby a bill passed by both houses of Congress automatically becomes law unless vetoed by the President (in all but one circumstance), is a direct result of one of Jefferson’s complaints in the Declaration of Independence: [The King] has refused his Assent to Laws, the most wholesome and necessary for the public good.”[16] Today, we no longer need the assent of the “King” before a “wholesome and necessary” bill becomes law, it does so automatically at the end of ten days,[17] with or without the President’s signature.

Earlier I inferred that all was not well with our law-making process under today’s Constitution. Since that is an integral part of the Rule of Law, let’s take a closer look.

Despite the clear wording of Article 1 Section 1, Congress is today not the exclusive legislative body in the federal government. Executive branch agencies have been given the authority to promulgate “rules” which have the force of law. That they are called “rules” rather than laws is simply cosmetic: if you break a rule you will likely go to jail or be fined just as though you “broke the law.” This improper law-making does not take place in a dark alley somewhere, outside the cognizance of Congress; Congress in fact authorizes it. But this delegation of Congress’ law-making authority runs counter to this principle expressed by John Locke:

“For [the legislative power] being but a delegated Power from the People, they, who have it, cannot pass it over to others. . . . And when the people have said, We will submit to rules, and be govern’d by Laws made by such Men, and in such Forms, no Body else can say other Men shall make Laws for them; nor can the people be bound by any Laws but such as are Enacted by those, whom they have Chosen, and Authorised to make Laws for them.”[18]

This delegation of legislative authority to unelected government bureaucrats was challenged in 1989.[19] The Supreme Court, in an 8-1 decision (Justice Scalia was the lone dissent!), stated:

“… our jurisprudence has been driven by a practical understanding that in our increasingly complex society, replete with ever changing and more technical problems, Congress simply cannot do its job absent an ability to delegate power under broad general directives. Accordingly, this Court has deemed it “constitutionally sufficient” if Congress clearly delineates the general policy, the public agency which is to apply it, and the boundaries of this delegated authority.”

(emphasis added) So Congress passes a skeleton of a law, containing some broad “general policy ,“ and says to the Executive Branch: “fill in the details.”

To guard against the equivalent of President John Adams’ “midnight judges,”[20] Congress gave itself the authority to overturn rules promulgated in the waning days of an outgoing administration; but they must use this authority within a certain “window of opportunity.”[21]

These rules are no small matter. They have bloated the Code of Federal Regulations to more than 175,000 pages and it has been calculated that they add more than $2Trillion to the annual cost of business in America[22] — a cost that is simply passed on to “we the consumer,” a consumer, it should be clear, who is oblivious to this breach of the separation of powers doctrine. Unless the Supreme Court one day overturns Mistretta, Executive Branch law-making is here to stay.

If the Executive Branch can make law, why not the Judiciary? Enter “judge-made law.” “Judge made laws are the legal doctrines established by judicial precedents rather than by a statute. In other words, [the] judge interprets a law in such a way to create a new law. They are also known as case law. Judge made laws are based on the legal principle “stare decisis” which means to stand by that which is decided.”[23] Judge-made law suffers the same defect as delegation to the Executive Branch: law created by other than our elected officials; law created by men and women unaccountable to the people.

“[T]his Court is not a legislature. Whether same-sex marriage is a good idea should be of no concern to us. Under the Constitution, judges have power to say what the law is, not what it should be. The people who ratified the Constitution authorized courts to exercise ‘neither force nor will but merely judgment’….The majority’s decision is an act of will, not legal judgment. The right it announces has no basis in the Constitution or this Court’s precedent.”[24]

Judge-made constitutional law would not be much of an issue if all Justices had a respect for originalism and the intent of the Framers and Ratifiers. Sadly, such Justices are in the minority.

Turning now to whether laws passed by Congress reflect the will of the American people we can point to the example of The Patient Protection and Affordable Care Act (PPACA). The PPACA, nicknamed Obamacare, was passed in 2010 by a Democrat-controlled Congress without a single Republican vote, and was triumphantly signed by President Obama. Public polls of the time consistently showed 60% or more of Americans opposed to the measure yet the 2000+ page bill was rammed through the Congress and became law through an act of pure partisan power. While subsidizing the cost of health care for some Americans who could previously not afford it, the poorly contrived bill, admittedly intended as a step towards a single-payer health-care system, has resulted in higher insurance premiums for most other Americans.

James Madison foresaw this situation:

“It will be of little avail to the people that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man who knows what the law is today can guess what is will be tomorrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?”[25]

Gary Porter is Executive Director of the Constitution Leadership Initiative (CLI), a project to promote a better understanding of the U.S. Constitution by the American people.   CLI provides seminars on the Constitution, including one for young people utilizing “Our Constitution Rocks” as the text.  Gary presents talks on various Constitutional topics, writes a weekly essay: Constitutional Corner which is published on multiple websites, and hosts a weekly radio show: “We the People, the Constitution Matters” on WFYL AM1140.  Gary has also begun performing reenactments of James Madison and speaking with public and private school students about Madison’s role in the creation of the Bill of Rights and Constitution.  Gary can be reached at gary@constitutionleadership.org, on Facebook or Twitter (@constitutionled).

[1] Alexander Hamilton, “Tully No. 3,” published in the American Daily Advertiser, August 28, 1794, found at https://founders.archives.gov/documents/Hamilton/01-17-02-0130.

[2] Ibid.

[3] Found at: https://en.wikipedia.org/wiki/Rule_of_law.

[4] John Adams, Novanglus No. 7, found at: https://thefederalistpapers.org/wp-content/uploads/2012/12/The-Novanglus-Essays-by-John-Adams.pdf.

[5] James Wilson, Lectures on Law, 1768, found at: http://www.constitution.org/jwilson/jwilson.htm.

[6] Noah Webster, American Dictionary of the English Language, New York: S. Converse, 1828.

[7] Sir William Blackstone, Commentaries on the Laws of England, 1765, Clarendon Press, Oxford, England. Introduction.

[8] See Genesis 4:8, for starters.

[9] Ibid. Book 1, Chapter 2.

[10] Thomas Jefferson, Declaration of Independence, July 4, 1776.

[11] Frederick Bastiat, The Law, found at https://americanliterature.com/author/frederic-bastiat/book/the-law/.

[12] Speech at Bristol, England, 6 September 1780.

[13] Saint Thomas Aquinas, Summa Theologica, I–II q. 95 a. 2.

[14] Sir William Blackstone, Commentaries on the Laws of England, Book 1, Chapter 2.

[15] James Madison, Federalist No. 14, 1787.

[16] Thomas Jefferson, Declaration of Independence, 1776.

[17] Not counting Sundays.

[18] John Locke, Second Treatise on Government, 1690.

[19] Mistretta v. United States, 488 U.S. 361 (1989).

[20] https://en.wikipedia.org/wiki/Midnight_Judges_Act.

[21] For more on the Congressional Review Act, see: https://fas.org/sgp/crs/misc/R43992.pdf.

[22] See: http://www.nam.org/Data-and-Reports/Cost-of-Federal-Regulations/Federal-Regulation-Executive-Summary.pdf.

[23] https://definitions.uslegal.com/j/judge-made-laws/.

[24] Chief Justice John Roberts’ dissent in Obergefell v. Hodges (2015).

[25] James Madison, Federalist no. 62, February 27, 1788.

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May 18: Rule Of Law And Separation Of Powers: Preservers Of Liberty – Guest Essayist: Richard E. Wagner

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It is a commonplace of democratic rhetoric to assert that we residents of democracies are governed by law and not by men. To be governed by men means that those who hold power can create privileges for themselves and their allies. In contrast, to be governed by law means that holders of power gain no advantage from holding power because law pertains equally to everyone.

It is easy to see why democracies assert that they exemplify the rule of law, for it projects the image that politicians are equally subject to the same laws as everyone else. This claim on behalf of the rule of law seems intuitively obvious once democracy is defined as a system of self-governance. But the claim that the sun rose in the east and set in the west was also intuitively obvious prior to the 16th century, when that intuition was recognized as being wrong.

Claims on behalf of the rule of law must confront the inconvenient fact that law cannot possibly make and enforce itself. Only people can make and enforce law.  How can law rule over people when it is people who make law? Is it possible to bridge the gap between this inconvenient fact and claims on behalf of the rule of law?

The American Constitutional Founders thought so, provided that power was divided and separated among holders of pieces of power. Rule of law and separation of powers are thus close cousins within the constitution of liberty on which the American republic was based. The original Constitution established a federal form of government where power was divided and separated in several ways. The federal government was limited to a few enumerated powers, with all other activities reserved to the states or to individual citizens. Federal power, moreover, was divided between legislative, executive, and judicial branches. Even more, the executive power was divided between the two most popular politicians in the land prior to the advent of political parties when President and Vice President were coupled.

Rule of law thus requires division and separation of powers, and in a manner that prevents collusion among holders of power. A key feature of governance through a rule of law is recognition that people should not be judges in their own causes. This recognition was robustly alive at the time of the American constitutional founding. With collusion among holders of power, however, holders of power can come to be judges in their own cause, thereby violating the central feature of any concept of rule of law.

In the original Constitution, the federal Senate was appointed by individual state legislatures. This arrangement created a form of Council of States within the federal Congress. The situation changed dramatically with the direct election of Senators in 1913. The direct election of Senators led to the establishment of what Michael Greve in The Upside-Down Constitution calls cartel federalism in place of the earlier system of competitive federalism. Through cartel federalism, the federal government and the states act as a cartel to act on behalf of dominant interest groups within society.

Erosion in the rule of law can be illustrated by the ability of governments to take private property. The Fifth Amendment to the Constitution allowed for a taking of private property, but only under tightly restricted conditions. That taking must be for a genuine public use. Furthermore, the owner of the property must be justly compensated for what was taken.

It is easy to see how these restrictions on the taking of private property reflected rule of law principles. By requiring the taking to be for public use and accompanied by just compensation, governments were placed on roughly the same footing as individual citizens who sought to acquire someone else’s property. Governments and their officials did not have special powers that individual citizens lacked, for anyone can always offer to buy someone’s property. This is the rule of law in operation.

Rule of law is a staple claim of democratic sensibility and ideology. It is not, however, an automatic quality of democratic government; it is not a natural political condition. It is rather a variable quality of constitutional arrangements inside of which democratic governance proceeds. Rule of law requires the absence of some apex of power; however, powers distributed among the many tend to funnel into power held by the few. The 20th century Italian sociologist Robert Michels described this tendency the iron law of democratic oligarchy. A tendency is not inevitability, however, and rule of law and separation of powers are important facets of a constitution of liberty, though these must be fought for continually because they don’t arise naturally, and they won’t remain in place tomorrow just because they are here today. Liberty is a perpetual struggle against forces of social and political entropy.

Richard E. Wagner is Holbert Harris Professor of Economics at George Mason University.

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May 17: Rule Of Law: Accountable, Not Arbitrary, In Regards To Representing The American People – Guest Essayist: Marc Clauson

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Rule of Law and Congress

The concept of a rule of law has been misunderstood throughout the history of political thought, and often ambiguous.[1]  In this essay I will define the concept, trace its development, then apply it to the American situation in its relationship to Congress.  In doing so, the fundamental idea of constitutionalism will become crucial to any understanding of an effective rule of law.[2]

In 1644, the English theologian and political thinker, Samuel Rutherford, published a book entitled Lex, Rex, which translated, means, “Law is King.”  The book was written during the English Civil War, which in part was fought over the issue of the power of the king (Charles I) in relation to the Parliament.  Charles had asserted his divine right, absolute, authority, though he also recognized a subordinate role for Parliament.  In other words, as most monarchs of that time believed, Charles essentially argued that he was above the law, even laws made by Parliament, since he sat in Parliament itself as its chief executive.[3]  In fact the dominant theory through most of the seventeenth century was absolute, divine right monarchy.  Legislative bodies therefore were at best the “loyal opposition” to monarchs in most cases until the English Civil War (1642-1649).  But during that War and again in and after the Glorious Revolution of 1688, the English Parliament came into its own as a force to be reckoned with, even the foremost branch of government, both in practice after 1688 and in theory, for example in John Locke’s Second Treatise of Government (1689).

But the question then remained for the “legislative,” as the powers of a legislative branch were labeled, is there a limit to the power of that branch?  Does it operate under a rule of law like a monarch?  Here we must define the concept.

One definition runs:

“The most important demand of the Rule of Law is that people in positions of authority should exercise their power within a constraining framework of well-established public norms rather than in an arbitrary, ad hoc, or purely discretionary manner on the basis of their own preferences or ideology. It insists that the government should operate within a framework of law in everything it does, and that it should be accountable through law when there is a suggestion of unauthorized action by those in power.”[4]

The essential idea is that no ruler or governing body is above the law, even those who actually make those laws.  The concept does not provide criteria for the content of laws, but it does require every citizen and governing official to abide by those laws if they are a part of the jurisdiction in which the particular laws are effective.  Other elements have been suggested to fill out the rule of law idea, including (1) Formal aspects: generality; publicity; prospectivity; intelligibility; consistency; practicability; stability; and congruence. These principles are formal, because they concern the form of the norms that are applied to our conduct; (2) Procedural aspects: impartial hearing, evidence presented, etc.; and (3) Substantive aspects, that is, the actual content of laws is considered part of the rule of law, for example, property rights.[5]  Most people would think that the procedural aspects are the heart of the rule of law, that is, the rule of law addresses a “fair procedure” without pre-determining an outcome.  In the case of Congress, while procedure is no doubt important, the Constitution itself is also vitally concerned with the content of laws—what Congress may do and, by implication (or directly in the Tenth Amendment), what it may not do.  At this point we move into the realm of constitutionalism as an aspect of the rule of law.  There are two ways in which the Constitution impinges on rule of law issues:

  1. By establishing rules for law making itself, that is, decision rules of various types (simple majority, 2/3 majority, etc.). These are important procedural norms designed for differing kinds of decisions that are associated with varying costs to citizens affected and for the laws themselves.[6]
  2. By ratifying Article Two, which, among other things, enumerates the specific powers of Congress, implying that these are the only powers, and thereby providing a limit to Congress’ powers.[7]

It may also be argued that the entire Constitutional structure implies that any law enacted by Congress also applies to its members and to any government official.  After all, a constitution, properly understood, is only alterable by the people and that would imply that it governs all officials as well as citizens generally.  Though such wording does not appear in the Constitution, it goes to the very heart of the rule of law.  Unfortunately, laws have not always been applied to members of Congress, as evidenced especially in recent years (for example, the Affordable Care Act of 2010).  Nevertheless, generally, Congress is bound by its own laws equally with any citizen.  Morally, there is no question as to the validity of that assertion.  Legally, we may also point to the checks and balances concept which is the constitutional method of enforcing the rule of law on Congress in terms of its powers (though it does not speak to the issue of Congressional self-exemption from laws).

In his Second Treatise of Government, John Locke, in discussing the “legislative” power, clearly states that all laws must be applicable to every citizen, even the rulers.[8]  Locke influenced the Founders, even during the constitution phase, though of course he was not the only important source.  Not only that, but the Founders were keenly aware of the writings in England that excoriated the corruption of the Parliament in the earlier 1700s and their own day.[9]  Finally, the Founders consciously designed a constitution that explicitly limited state power and provided incentives for virtuous behavior.  All these, but especially the idea of the rule of law were seen as applicable to Congress itself.  Without the concept in actual general practice, citizens would be subject to many abuses by governments simply because the governors would not themselves be subject to those same laws.  Given human nature as self-interested at the least, this could lead to an intolerable state, even one of tyranny.[10]  To the extent the rule of law is “institutionalized” the possibility of tyranny is minimized.

Marc A. Clauson is Professor of History, Law and Political Economy and Professor in Honors at Cedarville University. Marc holds a PhD from the University of the Orange Free State, SA, Intellectual History and Polity); JD (West Virginia University College of Law, Jurisprudence); MA, ThM (Liberty University, New Testament Studies and Church History); MA (Marshall University, Political Science); BS (Marshall University, Physics); and PhD work (West Virginia University, Economic Theory).

[1]   See Brian Tamanaha, On the Rule of Law: History, Politics, Theory.  Cambridge University, 2004.

[2]   On this topic more generally, see Ellis Sandoz, editor, The Roots of Liberty: Magna Carta, Ancient Constitution, and the Anglo-American Tradition of Rule of Law.  Liberty Fund, 1993.

[3]   Lex, Rex, or, the Law and the Prince: A Dispute for the Just Prerogative of King and People. Containing the reasons and causes of the most necessary … H. Grotius … In forty-four questions (1644).  Sprinkle Publications, 1982.  Charles’ father James I had also written about his divine right, absolute monarchy in The True Law of Free Monarchies (1610).

[4]   Jeremy Waldron, “The Rule of Law,” Stanford Encyclopedia of Philosophy.  2016, at https://plato.stanford.edu/entries/rule-of-law/.

[5]   Ibid., Section 5.

[6]   See James Buchanan and Gordon Tullock, The Calculus of Consent: Logical Foundations of Constitutional Democracy.  University of Michigan, 1962.

[7]   I am assuming that the enumerated powers are properly interpreted, and that other clauses have not been unduly expanded, for example, the “Necessary and Proper” Clause or the Commerce Clause.  Clearly, the Federal courts have expanded the scope of the meaning of enumerated powers and those clauses.

[8]  Two Treatises of Government (1689), edited by Peter Laslett.  Cambridge University, 1988, Chapter VII, section 94.

[9]   See for example, Cato’s Letters, written by John Trenchard and Thomas Gordon in the 1720s and the works of Henry Bolingbroke during the same time period.

[10]   It should also be noted that even where votes are by simple majority, the “winners” are still subject to laws, with some notable (and unfortunate) exceptions in practice.

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May 16: Rule Of Law: Meaning And Importance To Functions Of Congress In Representing The American People – Guest Essayist: Adam MacLeod

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The Rule of Law Applies to Congress, Too

The phrase, “the rule of law,” means that the power and discretion of those who exercise government powers is constrained. Officials may not do whatever they want. They must instead act according to rules, rights, customs, and other laws. This is the significance of John Adams’s classic formulation, which he enshrined in the Massachusetts Constitution, that the goal of the Constitution was to produce a “government of laws, and not of men.”

Like the other branches of government, Congress is also subject to the rule of law. Legislatures such as Congress do not make the law. Law comes from acts of human reason and natural order. Legislatures have power to change law, as executive officials have power to enforce and judges have power to adjudicate it. None of them must ever use their power to destroy the law.

The American founders achieved the rule of law in part by political means. The Massachusetts Constitution, which became a model for the Constitution of the United States, placed the legislative, executive, and judicial powers in separate branches of government. The enumeration and separation of powers prevent any one person or faction from gaining too much power over others and constrain each political actor within the bounds of law.

However, political protections for the rule of law are not enough. For one thing, officials can collude together, and often will when their interests align. King George III and Parliament acted in concert to deprive the American colonists of their customary rights. In declaring their independence from Great Britain, the colonists listed those deprivations as causes for the separation.

More fundamentally, there must be a law that rules over officials. So, the rule of law requires not only internal constraints on the powers of government but also external constraints. Officials must be constrained by law itself.

This is why all of the great American jurists insisted that the power to change law must remain only in the legislative branch, which changes the law generally—for everyone—and only prospectively. Most of them also insisted that even the legislative branch cannot retrospectively change rights that are either inherent in human nature or vested by some authoritative act, such as a contract, a conveyance, or a jury verdict. Harvard law professor and U.S. Supreme Court Justice Joseph Story insisted that government cannot “be presumed to possess the transcendental sovereignty to take away vested rights of property.” For “[t]hat government can scarcely be deemed to be free, where the rights of property are left solely dependent upon a legislative body, with­out restraint.”

This means that where rights have been settled and specified according to the requirements of natural reason; or by ancient customs; or by institutions of private ordering such as the family, religious associations, property and contract; the government is obligated to defer to those settlements. Not even Congress has the power to make up law.

Congress and other legislatures can take away entitlements. For most of American history, jurists have distinguished between natural liberties and vested rights, which legislatures have no power to take away, and mere entitlements, which come from the government and which government has some power to alter or even abolish.

That foundational distinction is largely forgotten today. People speak of “rights” to receive education or health insurance from the government as if those had the same constitutional status as rights of life, liberty, and property. Indeed, many people want Congress and state legislatures to have more powers to do good things for people. But legislatures who exercise powers to create entitlements use those same powers to deprive some people of their natural liberties and vested rights. In this way, American legislative bodies chip away at the rule of law.

As the Constitutions of Massachusetts and the United States both reflect, the whole point of government is to secure people in the enjoyment of their natural and vested rights, and thus to make possible the blessings of ordered liberty. So, the government that does not secure the natural and vested rights of the people is a bad government. And a government that actively deprives people of their natural and vested rights is a tyrannical government.

To restore the rule of law, Americans need first to re-learn law in its full and comprehensive sense. We need to recover a knowledge of the legal reasons which place external constraints on the powers of officials—including legislators—to deprive us of our natural and vested rights.

Adam J. MacLeod is Professor of Law at Faulkner University, Jones School of Law. He is the author of Property and Practical Reason (Cambridge University Press 2015) and co-editor of Foundations of Law (Carolina Academic Press 2017).

 

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May 15: Barbara Jordan (1936-1996) (D-TX) – Congresswoman And Judiciary Committee Member – Guest Essayist: Patrick Cox

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“My faith in the Constitution is whole, it is complete, it is total. I am not going to sit here and be an idle spectator to the diminution, the subversion, the destruction of the Constitution.  It is reason and not passion which must guide our deliberations, guide our debate, and guide our decision.” – Congresswoman Barbara Jordan (D-TX) speaking during the House Judiciary Committee impeachment hearings on President Richard Nixon, July 25, 1974.

Barbara Jordan is recognized as one of the most eloquent, powerful speakers and a spirited advocate for democratic principles and humanitarian ideals in the long history of the U.S. House of Representatives.  Among the first African American women elected to Congress and the first black Congresswoman ever from Texas, Jordan became a forceful presence whose influence extended well beyond our nation’s capital.  Her fame and prestige rose as people throughout the nation heard her speak for the first time during the nationally televised impeachment investigation of President Richard Nixon in 1974.

“People always want you to be born where you are.  They want you to have leaped from the womb a public figure.  It just doesn’t go that way.  I am the composite of my experience and all the people who had something to do with it.” – Barbara Jordan

Barbara Charline Jordan was born in Houston, Texas, on February 21, 1936.  She was one of three daughters of Benjamin M. Jordan and Arlyne Patten Jordan. A graduate of Tuskegee Institute, Benjamin Jordan became the pastor of Good Hope Missionary Baptist Church. Arlyne Jordan was an accomplished public speaker. Barbara Jordan attended Houston public schools during the era of Jim Crow segregation.  She graduated from the all black Phyllis Wheatley High School in 1952.  She obtained her B.A. from Texas Southern University in 1956 and her law degree from Boston University in 1959.  She then moved back to Houston and began her law practice in 1960.

Growing up in Houston during the era of segregation, Jordan lived with her family in the Fifth Ward near downtown.  The area at that time was termed a “Negro district.” Jordan recalled that her maternal grandfather John Ed Patten provided important lessons and education beyond what she learned in the classroom.  Patten read to the young Barbara by kerosene light while sitting in an old stuffed chair in his simple frame house.  Readings included verses from the King James Bible and Webster’s Pronouncing Dictionary.  Grandfather Patten was her idol as a child and an inspiration for her to pursue her education and to break many barriers during her adult years.  From her childhood through the remainder of her life, Jordan followed her grandfather’s advice.

Barbara Jordan ran two unsuccessful races in the Democratic Primary in the early 1960’s for the Texas House of Representatives in her home district in Houston.  In 1966 she ran for the Texas Senate following a court ordered redistricting case that created a Houston senate district composed of mainly minority voters. Jordan’s gamble succeeded.  She won the Senate contest and became the first African–American state senator in the nation since 1883.  She was the first black woman ever elected to the Texas Senate.  On March 28, 1972, Jordan’s peers elected her president pro tempore of the Texas Senate, making her the first black woman in America to preside over a legislative body. One of Jordan’s responsibilities as president pro tempore was to serve as acting governor when the governor and lieutenant governor were out of the state. When Jordan filled that largely ceremonial role on June 10, 1972, she became the first black chief executive in the nation.

As a State Senator, Jordan gained a reputation for her ability to befriend officials regardless of their political beliefs and party.  She was known for her work ethic, to be approachable and to compromise on legislation, and socialize with the “good old boys” of the Texas Legislature.  East Texas Senator Charles Wilson, who would later become famous after he was elected to Congress, invited Jordan to his annual quail hunt – the first woman elected official to receive an invitation into the traditional male bastion of hunting. She was admired for her oratory, knowledge of the law, and her sense of fairness and compassion.  All of these were traits that would carry her forward in her political career in the U.S. House of Representatives.  Some critics believed she was too friendly with established politicians and too eager to compromise.  Nevertheless, she continued on her path that would lead her from Austin, Texas to Washington D.C.

Following the congressional redistricting plan after the 1970 census, the state legislature created a new congressional district in downtown Houston.  The district contained many of the voting precincts in Senator Jordan’s district, thus making her the likely candidate for the new congressional seat.  However, during the 1971 legislative session, Senator Jordan served as Vice Chair of the Redistricting Committee.  Critics charged, including incumbent African American legislators, that she had acted out of self-interest and neglected efforts to create more state legislative seats where minorities would have a chance to compete and win elections.  Acknowledging this criticism, Jordan filed to run in the Democratic Primary for the Eleventh Congressional District.  During a campaign fund raising dinner for Jordan, former President Lyndon B. Johnson attended the Houston event.  Johnson told the audience he admired Jordan as a “woman of keen intellect and unusual legislative ability.”

She is a symbol proving that We Can Overcome – President Lyndon B. Johnson on Barbara Jordan

Jordan won the congressional campaign and easily defeated her Republican opponent in the 1972 election.  She became the first African American woman from the American South to be elected as a member of the U.S. House of Representatives.  She also won in the same election where President Richard Nixon overwhelmed his opponent, Democratic Senator George McGovern, to win reelection to a second term.  The paths of Congressman Jordan and President Nixon would soon cross with dramatic consequences.

Taking office in 1973 as a freshman representative, Jordan worked to establish relationships with older, more senior members of Congress.  With assistance from her friends and from former President Johnson, she obtained a highly coveted position on the House Judiciary Committee.  The timing was important for in the coming year the committee would take on issues relating to illegal actions conducted by the Nixon Administration that became known as the Watergate Scandal.  The 1972 break-in at the Democratic National Headquarters offices in the Watergate Building resulted in a criminal investigation by special prosecutor Leon Jaworski.  The trail of evidence led to the White House and President Nixon along with attempts to conceal the act and obstruct justice.  As the case moved forward in the federal courts, the House Judiciary Committee began debate on whether President Nixon could be impeached for “high crimes and misdemeanors” as stated in the U.S. Constitution.

“’We the people’ – is a very eloquent beginning.  But when the constitution of the United States was completed . . . I was not included.” – Barbara Jordan at the 1974 House Judiciary Impeachment Hearing on President Richard Nixon.

After hearing the impeachment case behind closed doors for several months in 1974, the House Judiciary Committee began its debate in open session.  Judiciary Chairman Peter Rodino provided each of the 38 members of the committee a fifteen-minute presentation on the impeachment investigation.  The statements received extensive coverage by television and the print media.  Jordan did not prepare her remarks until a few hours before her timed appearance.

On the evening of July 25, 1974, Jordan delivered her remarks during prime time on live television.  Her statement would make her a household name throughout the nation.  Her discussion centered on the Constitution, the responsibilities of the Congress, and the rule of law.  The tone of her voice, the power of her rationale, and her ability to explain the Constitution impressed people throughout the country.  She had expressed her feelings in words that people could easily understand on a very difficult and controversial topic.  “Thank you Barbara for explaining the Constitution to us,” was among many of the thousands of congratulatory messages that poured into her Congressional office.

The House Judiciary Committee did not vote on the articles of impeachment as President Nixon announced his resignation a few weeks later on August 8, 1974.  For her remaining years in Congress in the 1970’s, Barbara Jordan worked on legislation to support civil and voting rights for all Americans and to end discrimination in the workplace and throughout the nation.  In a controversial move, she defended former Nixon Treasury Secretary and Texas Governor John Connally in the bribery case known as the “milk fund scandal.”  Many people criticized her for being a character witness for Connally, but Jordan replied, “I wouldn’t have done it if I didn’t feel it was the right thing to do.”

At the 1976 Democratic National Convention, Jordan became the first African American woman to provide a keynote address at a national political convention.  During the nation’s bicentennial, she called for better equality and more opportunity for all Americans.  “We cannot improve on the system of government, handed down to us by the founders of the Republic, but we can find new ways to implement that system and to realize our destiny,” she said in her highly acclaimed speech.  She reminded Americans in the prime-time speech that her appearance was “one additional bit of evidence that the American Dream need not be deferred.”  Although she was considered a strong contender for appointment to a national office by President Carter in 1977, she decided to stay in Congress.  She delivered the 1977 commencement speech at Harvard University.  But she did not stay long as she announced after three terms in Congress that she would not run for reelection in 1978.

Ethical behavior means being honest, telling the truth, and doing what you said you would do. –  Barbara Jordan interview in 1995 shortly before her death.

From 1979 until her death at age 59 in 1996, Jordan held the Lyndon B. Johnson Centennial Chair in National Policy at the Lyndon B. Johnson School of Public Affairs at the University of Texas at Austin.  As a professor, her classes were very popular and she had an excellent reputation as an educator.  In fact, “Teacher” is part of her epitaph.  Her long list of awards and accolades is as impressive as her career. In 1991 Texas Governor Ann Richards appointed her to the newly established ethics commission.  President Bill Clinton presented the Presidential Medal of Freedom to Jordan in 1994.  Texas Monthly magazine in 1999 named her the “Role Model of the Century.”  She received thirty-one honorary doctorates and many national awards that include:  Time Magazine’s “Woman of the Year,” the Distinguished Alumnus Award of the American Association of State Colleges and Universities, and selection to the National Women’s Hall of Fame.

Jordan’s health deteriorated in the 1990’s and she was confined to a wheel chair due to her long fight with multiple sclerosis.  Although she reduced her public appearances, Jordan remained in great demand.  Jordan passed away at her Austin home on January 17, 1996, a month shy of her sixtieth birthday from a combination of pneumonia, leukemia and multiple sclerosis.

Barbara Jordan was a humanitarian and believer in democracy.  She provided many firsts and a legacy of service, integrity, honesty, grace and a vision of a better America.  At her memorial service at the University of Texas on January 28, 1996, author and commentator Bill Moyers said, “She heard the voice of the people, and she gave the people a voice.”

 

Author’s Note –

As a young student in Houston in the 1960’s, my first involvement in a political campaign was to serve as a volunteer on Barbara Jordan’s successful Texas Senate campaign in 1966.   I have always enjoyed saying that she won her first political race in spite of my assistance.  Years later, after she had retired from politics and was a Distinguished Professor at the Lyndon B. Johnson School of Public Affairs in Austin, she very graciously volunteered to serve as a member on my history dissertation committee at the University of Texas at Austin.  Following her death in 1996, I joined in the university’s endeavors to assist with her archives and records so that they are preserved for posterity.

Dr. Patrick Cox of Wimberley, Texas in an award-winning and acclaimed historian, author and conservationist. A sixth generation Texan, he resides in Wimberley, Texas and is President of Patrick Cox Consultants, LLC. His firm specializes in historical research, writing projects and oral histories for individuals, corporations, public agencies and nonprofit organizations.

 

For further reading:

Jordan, Barbara and Shelby Hearon.  Barbara Jordan, A Self-Portrait.  Garden City, New York:  Doubleday & Company Incorporated, 1979.

Rogers, Mary Beth.  Barbara Jordan:  American Hero.  New York:  Bantam Books, 1998.

Sherman, Max, editor.  Speaking the Truth with Eloquent Thunder.  Austin, Texas:  University of Texas Press, 2007.

McCroskey, Vista.  “Barbara Jordan” in Profiles in Power, Twentieth Century Texans in Washington, Kenneth E. Hendrickson, Jr., Michael L. Collins, and Patrick Cox, editors.  Austin, Texas:  University of Texas Press, 2004.

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May 14: Representative Government: The Founders’ Design For The American People To Rule Within A Civil Society – Guest Essayist: James D. Best

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James Madison wrote, “Ambition must be made to counteract ambition.” He and his fellow delegates enabled this objective by enumerating specific, balanced powers to each branch, and then purposely giving each branch checks on the other branches.

The phrase checks and balances has become so commonplace, it is often spoken as if it were a single word, but in the eighteenth century, the phrase represented two distinctly different concepts. John Adams may have been the first coin the phrase in his 1787 publication, A Defense of the Constitutions of Government of the United States, but balances and checks is the phrase used in The Federalist, and that is the sequence Madison would have thought appropriate. First balance powers between the branches of government, and then place checks on those powers so they may not be abused.

As the first three words of the Constitution assert, the Framers felt the American people should rule the government, not vice versa. Arguably then, congressional checks on the executive are the most important because House members and one-third of the Senate face election every two years, which should keep them attuned to the public mood.

So, what powers and checks did the Framers give Congress to preclude the president from becoming king?

  • The Constitution gives the power to make laws solely to Congress. Constitutionally, the president can only enforce laws made by Congress. Recent history has seen an erosion of this check on executive powers. Congress gave away a good portion of its authority by passing vague laws which allowed the regulatory state to craft the details that determine what is legal and what is against the law. The Congressional Review Act of 1996 allows Congress to overrule an agency regulation, but it must be done within sixty days, and if the president vetoes the overruling, then congress must override the veto. Congress has also failed to curtail the abuse of executive orders that effectively make or alter laws. Stretching the concept of discretionary prosecution also weakened the lawmaking authority of Congress.
  • Congressional power of the purse is the strongest check over the executive. The amount of money Congress appropriates determines what the executive branch can do and how much of it they can do. Congress eroded this power by ceasing to debate and pass individual appropriations bills. Instead, they pass omnibus packages and continuing resolutions, which aggregate spending decisions to obscure accountability.
  • An axiom of Washington is that personnel is policy. Senate approval of appointees remains a potent congressional check on the president. When in disagreement with the president, Congress can withhold or delay approval of the leadership in the executive branch. Since threats to withhold funding have become mainly bluster, approval of appointments has taken on more significance.
  • Foreign policy is an executive prerogative, but the Framers intended senate approval of treaties to check questionable international agreements. Recent use of a “nonbinding agreement” have effectively circumvented this check. A second, obviously weakened congressional foreign policy check is the authority to declare war.
  • Other congressional checks on the president include a veto override provision; approval of appointment to fill a vice presidential vacancy, and a requirement that the president deliver to Congress a State of the Union message. From a practical perspective, these do not seriously impair a president.
  • The ultimate congressional check on the executive is impeachment, but in the nation’s history, there have been only two impeachments and zero convictions.
  • That leaves the most powerful check of all. One that is unmentioned in the Constitution. To make new law, Congress must know how existing law is administered. This requires Congress to examine the operational side of the executive branch. This power is called congressional oversight, and although not enumerated in the Constitution, the Supreme Court has confirmed this implied power on several occasions. Investigative powers may now be the most important congressional check on the executive branch, but even this prerogative has been eroded in recent history by delay, redaction, and defiance of congressional subpoenas. Even a contempt of congress resolution has been brushed aside as little more than an embarrassment.

The Framers knew the country needed a stouter government than the Articles of Confederation provided, but they had only recently fought a war to escape a king and had no intention of reimposing that kind of oppressive power on the new nation. The country needed a stronger government, but not so strong it could override the will of the people. Instead of a Goldilocks government, they balanced power and designed an elaborate set of checks so government could govern adequately, but Lilliputian ropes would harness it from trampling the little people.

Gouverneur Morris, the most frequent speaker at the Constitutional Convention, said, “This magistrate is not the king. The people are the king.” Despite an artful internal design, the Framers intended the ultimate check on the national government and the executive to be the people. The ballot box is still a potent check on runaway power.

Alexander Hamilton said in Federalist 21, “The natural cure for an ill-administration, in a popular or representative constitution, is a change of men.” John Adams wrote, “There is a simple sense in which at every election the electorate hold their representatives to account, and replace those who have failed to give satisfaction. This fundamental check is, we might say, the essence of the liberty to be found in representative government.”

James D. Best, is the author of Tempest at Dawn, a novel about the 1787 Constitutional Convention, Principled Action, Lessons From the Origins of the American Republic, and the Steve Dancy Tales.

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May 11: Virginia House Of Burgesses And Colonial Legislatures As The Basis For Consent And American Self-Government – Guest Essayist: Joerg Knipprath

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In June, 1765, through the work of Patrick Henry, the Virginia House of Burgesses resolved:

…That the Taxation of the People by themselves, or by Persons chosen by themselves to represent them…is the only Security against a burthensome Taxation, and the distinguishing Characteristick of British Freedom, without which the ancient Constitution cannot exist.

…That his Majesty’s liege People…have without Interruption enjoyed the inestimable Right of being governed by such Laws, respecting their internal Policy and Taxation, as are derived from their own Consent ….

Several months later, the Stamp Act Congress echoed those principles, which reflect several connected components of colonial constitutional theory, among them that government rests on consent of the governed and that taxes must come from those who pay them or through their representatives (“no taxation without representation”).

The struggle over revenue had long occupied the king and Parliament. Matters came to a head in the 17th century, an era that began with sovereignty in the former and ended with it in the latter. Parliamentary theory rested on the idea that, while the king has certain “prerogatives,” outside those he is subject to the law. A fundamental principle of law is that one cannot take from another what is the latter’s. Thus, the king cannot take the property of the people in the form of taxes. However, the people are free to make a gift to the king who is in need of funds to act for the common good. They might do so directly, but, as such a system would be difficult to administer, their political representatives might consent on their behalf. Less clear, however, was how those political representatives could give that consent on behalf of those who might object.

The same contentions arose in the colonies, long before the Stamp Act controversy. For effective governance, every political system seeks obedience to its edicts by convincing the people of their obligation to do so, i.e. not that they “must” obey or suffer the consequences, but that they “ought” to do so because it is ethically right. One way to establish the ethical basis of government is that it is essential to human society due to our nature as social beings. Another is to justify government as ordained by God for human flourishing. A third way, common in modernity, is to use voluntary human choice to institute government through a “social contract.”

Colonies in British North America were established through three mechanisms, each of which is grounded in some manner in social contract theory. First came the private, for-profit colony, represented by the Virginia Company of London, which founded Jamestown, Virginia, in 1607. Investors bought shares in a joint-stock company, a concept of pooling capital somewhat akin to a modern business corporation. Under its charter, the Company was managed by a council in London. Its operations in the New World were directed by a governor and council appointed by the Company. Until 1609, there was also a Royal Council appointed by the king to look after the crown’s interests in its domain.

After a period of military rule as the colony struggled to survive, the Company in 1619 ordered the creation of a representative body to attract more settlers. When the Company’s charter was revoked in 1624, Virginia became a royal colony. The king appointed the governor and council, but the locals (“burgesses”) chose the assembly. Though its status initially was somewhat precarious, by 1639, the king recognized the right of this House of Burgesses to meet permanently. Though there were local variations, this model of governor and council plus local assembly became the pattern for all English colonies, and the House of Burgesses (with its heir, the Virginia House of Delegates), became the longest-constituted legislative body in North America. The early history of the government of Massachusetts Bay was nearly identical, except that there the “General Court” was divided into two chambers in 1644, setting a precedent for bicameralism to represent different constituencies.

A second type of government, the compact colony, arose in New England, initially in the Pilgrim settlement at Plymouth, Massachusetts. Having obtained a patent to settle on Virginia Company land, they landed too far north and lacked political authority for their settlement. As a result, the adult males formally chose “solemnly and mutually in the Presence of God and one another, [to] covenant and combine ourselves together into a civil Body Politick …” This Mayflower Compact, augmented by customary practice, served as the form of government for the colony for its seventy-one years of existence.

Similar approaches were used in Puritan colonies founded thereafter at New Haven, in Rhode Island, and–through the Fundamental Orders of Connecticut–among several Connecticut River Valley towns. All were new settlements created out of primeval wilderness. These “compact colonies” most purely embodied the principle of voluntary consent as the basis of legitimate government. The idea of a social contract neatly meshed with Calvinist religious doctrine based on a covenant with God and on a congregational theory of members who came together to form their spiritual assembly based on each person’s free agency in his relationship with God. From there, it was but a small leap to argue that civil society and the political commonwealth, too, were created by individual consent. John Locke, writing a couple of generations later, could look to them as examples of his theory about the social contract made when man left the state of nature.

The third type was the proprietary colony, such as Pennsylvania, Maryland, New Jersey, the Carolinas, and Georgia. The king would grant a Lord Proprietor a patent to a large tract of land with the expectation that the proprietor would govern the area as it became settled. This semi-feudal arrangement usually repaid the proprietor for some favor, such as the grant of the Carolinas by Charles II to eight nobles who had helped him secure his return to the throne in the restoration following the Cromwell Directorate. The patent defined the political relationship between king and proprietor, while a further instrument drafted by the proprietor, such as the Charter of Liberties and Frame of Government of the Province of Pennsylvania (1682), delineated the relationship between the proprietor and the settlers.

While many of the early patents gave virtual independence to the proprietor, there were still some restrictions that protected the king’s political interest. For example, the grant to William Penn required him to submit all laws to the Privy Council (a body of advisors to the king) for approval and to recognize the king’s right to levy taxes. The proprietor made himself governor or appointed his agent to the office and was advised by a council. Under some patents, the proprietor need not call an assembly, but, due to the political pressures that the settlers inevitably exerted, proprietors of all colonies soon consented to elected legislative bodies.

No matter the type of colony, political instability in England caused changes in the formal constitutional relationship between various colonies and the mother country. Charters were revoked and re-granted. Eventually, all colonies formally became crown colonies and part of the king’s domain. By the end of the 17th century, a common pattern had emerged that lasted until the Revolutionary War. The colony had a governor, who, except in Connecticut and Rhode Island, was appointed by the crown. As the 18th century progressed, the governor often was a local leader. There was also a council of prominent locals, appointed by the crown, which advised the governor. Finally, there was a legislative body, elected by the local residents and acting with their consent. That body was typically unicameral, although Massachusetts Bay had a bicameral General Court. Qualifications of voters and representatives generally were tied to property ownership, most commonly land, and, sometimes, to religious affiliation.

On the surface, these arrangements reflected the British system of king, council (later to become the Cabinet), and Parliament. There was, however, nothing like the House of Lords, as the colonies lacked a hereditary nobility and the higher order of Anglican churchmen who composed that chamber. As well, colonial assemblies, such as the House of Burgesses, soon wrested from the governors, councils, and even the proprietors, the power to levy taxes, just as Parliament did from the king over the course of the 17th century.

Crucial for the colonial constitutional order was a significant characteristic. Both mother country and colonies had representative legislative bodies.  However, the systems operated differently, which eventually produced incompatible theoretical principles of representation through the catalyst of the events leading up to American independence. The British system was one of careful balance of interests between different important social estates in society (king, nobility, and commons dominated by merchants and gentry). It stressed stability. Loyalty was class-based, but, as in many republican systems, the lower classes were effectively denied participation. Members of the House of Commons were to protect the interest of the commons against the other estates and were expected to vote according to their own good faith perception of what best served the interests of the commons as a whole. They held their vote in trust for the whole commons–the “trustee theory” of representation.

In the colonies, distances were greater and settlements often more isolated. The approach was to allocate representation by geography, to towns and physical estates. Local communities elected representatives from their own residents. Moreover, the colonies lacked the more defined class structure of Britain. Finally, despite limitations on the electoral franchise in the colonies, a much higher proportion of adult (usually white) males could vote than in Britain. The loyalty of those elected was foremost to their geographical constituencies, and they were expected to look to those constituents’ interest, not to class affiliation, when voting. Many towns conducted their own affairs by periodic meeting of all residents, and they often carefully instructed “their” representatives how to vote on important issues–the “delegate theory” of representation.

Out of these practices developed rival theories, the British “virtual” representation and the American “direct” representation. During the controversies of the 1760s and 1770s over taxation and other internal legislation, the two sides talked past each other even as efforts were made to avoid a complete break. The British claimed that all were subjects of the king, and that the interests of the colonists were fully represented by the “commoners” in the House of Commons, even if Americans had not voted for them or had someone from their community as a representative. The Americans demurred. If they could not exercise their vote directly out of practical considerations, their franchise could be transferred only to those whom they had directly authorized to vote and over whose performance of this fiduciary duty they had actual control. Only their colonial assemblies, those closest to them in community, were authorized to legislate on their behalf, especially in the dangerous area of taxation. They had not consented to taxation by persons thousands of miles away whom they did not know and for whom they had not directly voted. To Americans, consent had lost all meaning, if the British were correct.

This much-fought-over distinction in representation was not, by itself, the catalyst for revolution. But it does portray the dissatisfaction of the Americans with laws that affected them in their personal lives and livelihoods being enacted by a body thousands of miles away and over which they had no effective control. Many currents were driving the societies apart: the large geographic size of the American possessions; the near-parity in population that was likely soon to favor the Americans; the comparative lack of class consciousness among the free population in the colonies; their greater ethnic and religious diversity; and the sense of self-identity and self-government that, while not yet complete or clearly expressed, had resulted from more than a century of benign neglect by the Crown between the 1630s and 1750s. Virtual representation works if there is a clear community of interest, and it must affect the interest of a clear “community.” In a preview of later federalism, Americans could accept Parliament’s sovereignty in matters that touched all, such as foreign relations and international trade, but not in primarily local matters.

The U.S. Supreme Court in U.S. Term Limits v. Thornton (1995) found that members of Congress do not represent the voters of their districts or states, but, instead, the people of the United States as a whole. Thus, a state cannot place term limits on “its” representatives. This sounds remarkably like virtual representation, especially since a state also cannot require the representative to be a resident of any particular district. If Congress concerned itself only with matters necessarily national or international in scope, this view need not raise concerns. But as Congress busies itself with more and greater intrusions into personal decisions, such as health insurance, one might ponder if the same alienation felt by Americans of the 1770s towards the far-away British government is not felt 250 years later by Americans towards their own. Do such laws still meaningfully reflect the consent of the governed so emphatically proclaimed by the House of Burgesses against the Stamp Act?

An expert on constitutional law, and member of the Southwestern Law School faculty, Professor Joerg W. Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. He has also spoken on business law and contemporary constitutional issues before professional and community forums, and serves as a Constituting America Fellow. Read more from Professor Knipprath at:http://www.tokenconservative.com/.

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May 10: Holding Power Accountable: Magna Carta, Parliament, And The Origins Of Representative Congress – Guest Essayist: Scot Faulkner

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Our U.S. Constitution (1787), and powers of the Legislative Branch, embody the distrust of concentrated power and establish mechanisms to hold that power in check.  This concern for “sovereign over reach”, and the ways to prevent it, flow from the Charter or “Carta” signed on the field of Runnymede in 1215.

On May 26, 1976, in a solemn ceremony at Westminster Hall in London, the leaders of the U.S. House of Representatives and Senate received a gold-embossed reproduction of the Magna Carta.  On June 3, 1976, a second ceremony, in Washington, DC, installed the gold reproduction and the original Wyems copy of the Magna Carta in the Capitol Rotunda to celebrate America’s Bi-centennial.

While the original Magna Carta returned to England, the gold Magna Carta remains on permanent display in the Capitol. “Nothing could be more symbolically important to the people of the United States,” stated Speaker Carl Albert during the ceremony.

Why is the Magna Carta so firmly linked to America’s Legislative Branch?  How are the underlying principles of the Magna Carta embodied in the operations of the Congress?

Winston Churchill, in his masterpiece, “A History of the English Speaking Peoples”, explained, “Throughout the document [Magna Carta] it is implied that here is a law which is above the King and which even he must not break.  This reaffirmation of a supreme law and its expression in a general charter is the great work of Magna Carta; and this alone justifies the respect in which men have held it.”

England’s King John was humbled by barons at Runnymede on June 15, 1215.  The King had over reached as an aspiring despot.  The barons had the military force, and the political will, to assert there were limits to even a King’s power.  Magna Carta was the contract that re-established the rule of law and re-asserted certain rights for the ruling class.  This included forbidding the King from compelling certain actions, and prevented him from imposing punishments and fines except through due process within narrowly defined cause.

England would expand upon these basic principles as Parliament gradually replaced the Monarchy in governing the nation.  This process required a Civil War (1642-1647), the beheading of King Charles I (1649), and the deposing of King James II (1688).

America’s Revolution (1775-1781) and Declaration of Independence (1776) arose from a similar concern over King George III’s “sovereign over reach”.

Magna Carta’s revolutionary concept of holding the King accountable for a breach of contract with England’s nobles was broadened in the Declaration of Independence.  Thomas Jefferson established rights above Common Law and Medieval precedents with the famous phrase, “We hold these truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights.”

The U.S. Constitution put this broader interpretation of Magna Carta into practice.  Alexander Hamilton, James Madison, and John Jay, writing in Federalist 84, explain:

“It has been several times truly remarked that bills of rights are, in their origin, stipulations between kings and their subjects, abridgements of prerogative in favor of privilege, reservations of rights not surrendered to the prince. Such was MAGNA CARTA, obtained by the barons, sword in hand, from King John…Here [in America], in strictness, the people surrender nothing; and as they retain everything they have no need of particular reservations. “WE, THE PEOPLE of the United States, to secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.” Here is a better recognition of popular rights.”

The U.S. Constitution builds upon centuries of Parliamentary precedent by placing the power of legislation, and the funding of government operations, clearly in the hands of the Legislative Branch.  This is why Article I begins, “All legislative Power herein granted shall be vested in a Congress of the United States…”

It is not a coincidence that Article I, the Legislative Branch, is more than double the size of Article II, the Executive Branch, in defining power and authority (2,282 words to 1,023 words). The final section on the Executive Branch establishes Congress’ ultimate sanction against “sovereign over reach”:

Section. 4. The President, Vice President and all Civil Officers of the United States, shall be removed from Office on Impeachment for and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

From the very first, the Legislative Branch asserted its role in limiting Executive Power.  Senators quickly and effectively embraced the limitation of the President to appoint only with the “the Advice and Consent of the Senate” (Article II, Section 2).

The first test was rejecting President George Washington’s appointment of Benjamin Fishbourn to be a customs collector. On August 5, 1789, President Washington strode unannounced into Federal Hall in New York City, then the Capitol Building.  Vice President John Adams allowed Washington to sit in the presiding officer’s chair.  The President, according to Ron Chernow’s definitive biography on Washington, “proceeded to unbraid the twenty-two members of the Senate, demanding to know why they spurned his appointee.”

Senator Ralph Izard of South Carolina spoke for the institution asserting that “the Senate had no obligation to explain its reasoning to the President”. It was the last time Washington, or any other President, entered a Legislative Chamber without permission.

Battles over appointees, spending, and legislation have defined the balance of power between the Congress and the President.  In each encounter, Congress has ultimately reaffirmed its power to limit “sovereign over reach”.  This has included censuring President Andrew Jackson (1834) and impeaching Presidents Andrew Johnson (1868) and Bill Clinton (1998-1999).

The “Lincolnia” original of the Magna Carta was displayed at the New York World’s Fair in 1939.  It remained safe in America during World War II, even being stored in the vault of Fort Knox after the Pearl Harbor attack.

America kept the physical Magna Carta safe, and kept Magna Carta’s revolutionary legacy of holding power accountable.

Scot Faulkner advises corporations and governments on how to save billions of dollars by achieving dramatic and sustainable cost reductions while improving operational and service excellence. He served as the Chief Administrative Officer of the U.S. House of Representatives. He also served on the White House Staff, and as an Executive Branch Appointee.

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May 9: Magna Carta (The Great Charter), Parliament And The Origins Of Representative Congress – Guest Essayist: Marc Clauson

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The English Parliament was one important inspiration for the Founding Fathers in designing our own Constitutional system.  In this essay I will explore in more detail the origins of our Congress in the English parliamentary system and the relationship of Magna Carta to our own Founders’ ideas.  Magna Carta is argued to be at the root of the English parliamentary system, so we wish to look to it to find the beginnings of representation.

Magna Carta (or The Great Charter) was subscribed in 1215 after a conflict between certain nobles and King John.  It essentially affirmed a variety of already-traditionally asserted rights in a written document.  But Magna Carta had nothing to say about a parliament.  The actual Parliament would not come into existence until decades later.  So what is the connection between the two?  Peter Boyce has shown the connection when he writes that “Clause 61 of Magna Carta…promised that ‘the barons shall elect twenty-five of their number to keep and cause to be observed with all their might, the peace and liberties granted and confirmed by this charter’. That body would evolve into the House of Lords.”[1]  Over time, the kings, after Montfort, would begin to meet with both nobles and “commoners.”  Thus emerged around 1265 the House of Commons in its infancy.  Eventually the House of Commons came to see itself as the repository and guardian of the rights granted in Magna Carta.[2]  It also began to function to channel grievances from the people to the king and to bring petitions to the king.[3]

But that is not the whole story.  If the Parliament began to view itself as a preserver of rights under the so-called “Ancient Constitution,” how does that function translate to law making, the basic legislative activity as conceived by the Founding Fathers?[4]  Hanna Pitkin helps here.  She notes that over time from the 14th to the 17th century, the parliamentary “members” began first to receive grievances from their people toward the king, then began to be thought of as servants of their communities, and finally developed a collective mentality, presenting common petitions.  Common petitions easily translated into general laws, and the Parliament therefore took on this law making function.[5]

A political theory of Parliament also developed in parallel with events, reaching a culmination in the seventeenth century.  By the fifteenth century the members were acting as a unified body and were called “attorneys…of all the people of the realm.”[6]  Each member acts for the whole nation.  From this developed two other important ideas: (1) that all men are present in parliament (virtually) and (2) that the ruler embodies the entire realm.[7]  In 1642 King Charles I refers to Parliament as the “representative body of the people.”[8]  Thomas Hobbes in his Leviathan (1651) saw Parliament as an agent of the people, acting on their behalf, and called the members “representatives.”[9]  Parliament is an artificial person and its actions are to Hobbes undertaken by virtue of the consent of the people in the social contract.  John Locke would largely agree.  Though he was indifferent as to the specific form of government, he saw the “legislative” as the predominant power and generally a House of Commons as embodying that power of making laws and representing the people whose consent it required to continue.[10]

We know the Founders looked to England to a great extent for ideas for the new government.  In fact, the Colonies were products of English political practice.  Each colony already had at least one chamber of representatives, and most two, obviously modeled after the English Parliament.[11]  Representation by a Congress is intended by the Founders to replace direct democracy, since it would be impossible to assemble all the people in one place at one time.  It is a “substitute for the meeting of the citizens in person.”[12]  If we look in more detail at the structure of Congress, we can see a bicameral legislature much like England’s.  The Senate is the more “aristocratic” body, chosen by (at this time) the state legislatures, as the House of Lords members were appointed by the Crown in England.  The House of Representatives on the other hand is elected by the people, and its makeup is based on population, so that there would be, as much as possible, a proportional correspondence between each House representative and the people whom he represents (though not obviously a one-to-one correspondence).

There were differences between the English Parliament and the Congress.  For example, Senate members were chosen regularly while Lords were permanent.  House representatives were also elected regularly, while Commons members, although elected, held office for a greater time period and elections were sometimes more of a sham than genuine.  The American Founders must have noticed these defects and others, and sought to bring a greater sense of real “standing in” to Congress on behalf of the people.[13]

The final version of the American Congress can be traced back to the Magna Carta itself, but in addition, our Founders drew on a rich source of political ideas that developed throughout the same period from Magna Carta on.  The initiating event then was the core of the British “Ancient Constitution,” but the foundation was the growing notion that the people ought to play a greater role in making laws.  The representative body was the mechanism to achieve that goal.

Marc A. Clauson is Professor of History, Law and Political Economy and Professor in Honors at Cedarville University. Marc holds a PhD from the University of the Orange Free State, SA, Intellectual History and Polity); JD (West Virginia University College of Law, Jurisprudence); MA, ThM (Liberty University, New Testament Studies and Church History); MA (Marshall University, Political Science); BS (Marshall University, Physics); and PhD work (West Virginia University, Economic Theory).

[1]   Peter Boyce, “Magna Carta and the Parliament,” Paper presented at the Parliament of Tasmania on the occasion of its commemoration of the 800th anniversary of Magna Carta, Hobart/TAS, 16 June 2015. https://www.murdoch.edu.au/School-of-Law/_document/WA-jurist-documents/2015-Vol-6/Boyce—Magna-Carta-and-the-Parliament.pdf, 218.

[2]   Ibid.

[3]   See Hanna Fenichel Pitkin, The Concept of Representation.  University of California Press, 1967, pp. 243f.

[4]   On the unwritten and unenforceable “Ancient Constitution” see Glenn Burgess, The Politics of the Ancient Constitution: An Introduction to English Political Thought, 1603-1642.  Penn State University Press, 1993.

[5]   Pitkin, op. cit., 244.

[6]   Stanley Chrimes, English Constitutional Ideas in the Fifteenth Century.  Cambridge University, 1936, p. 131, cited in Ibid., p. 245.

[7]   Ibid.

[8]   Ibid., p. 246.

[9]   Edited by Richard Tuck.  Cambridge University Press, 1996, Ch. Xxxvi.

[10]   John Locke, Second Treatise of Government (1689), edited by Peter Laslett.  Cambridge University, 1988, Chapter XIII, section 149.

[11]   See Donald Lutz, editor, Colonial Origins of the American Constitution.  Liberty Fund, 1998.

[12]   Pitkin, op. cit., p. 191.

[13]   Madison in the Federalist Papers does not believe the elected representatives must be exactly like the people whom they represent, but that they possess sufficient virtue and desire to act for the common good.  But they are also incentivized toward virtuous actions by frequent elections.  See Federalist 57, in Alexander Hamilton, John Jay and James Madison, The Federalist Papers. Edited by George Carey and James McClellan.  Liberty Fund, 2003, Gideon edition.

 

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May 8: The Challenge Of Congressional Representation (2013) By Richard Fenno: A Summary – Guest Essayist: The Honorable Frank Reilly

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In The Challenge of Congressional Representation, Richard Fenno studies the activities of five members of the U.S. House of Representatives in their home districts.  The book follows-up on Fenno’s 1978 Home Style: House Members in Their Districts, in which he outlined Fenno’s Paradox, which posits that while people generally dislike Congress as a whole, they like their own Member of Congress.

Fenno studies the representational activities of House members, rather than their activities in Washington, which differentiates the study from others. Fenno describes the study as “one small-step effort to help redress a research imbalance” in which much is known about how House members operate in Washington, but little is known about their activities back home.

The book recognizes that no research standards exist — listening and observing are very personal and do not lend themselves to standardization — and that future studies will be difficult.  In fact, the best that political scientists can hope for in the short term would be to create an inventory of connection questions and connection patterns for use in later studies.  The long-term goal would be to transform the questions and patterns into explanations.

Fenno’s first subject was Congressman Barber Conable, Jr., a New York Republican.  Conable had “a strong sense of identification with” the more rural, small-town part of his district, having been raised there in a family with deep roots.

Conable connected with his constituents by going home at least 40 times every year, usually travelling alone without staff, adding to his credibility and visibility.  Conable also sent out a weekly printed newsletter, a frequency then-unheard of in Washington.  Conable noted that he focused his time on those who agreed with him, and to whom he was obligated.  He used his newsletter to educate undecided voters.

To protect his independence and engender trustworthiness, he limited campaign contributions $50 from any group or person.

“There’s a natural tension between being a good representative and taking an interest in government,” said Conable.  Toward the end of his Congressional career, he began to believe his interest in government was beginning to overtake his desire to be a good representative.

Fenno next studied Congressman Glenn Poshard, an Illinois Democrat, who also had deep roots in his district.

Poshard noted that the district was difficult to represent because “[t]he issues change every 50 miles….”  To keep in touch, Poshard travelled home most weekends, even though he rarely missed a House floor vote.  He preferred town hall events where he could explain his positions.  He diligently answered constituent mail, but did not send newsletters.  Even though he expanded his district offices from 1 to 6, he was frugal with his official office budget, spending less than any other member from his state.

He refused PAC contributions, and limited others to $500.  He kept his campaign promise to serve no more than 5 terms, saying that term limits provide “a greater sense of freedom to do what you want to — and a certain sense of security.”

Fenno’s next followed Congresswoman Karen Thurman, a Florida Democrat, who served a sprawling district.

Thurman initially ran as a moderate with legislative experience, then after the Democrats lost control of the House in 1994, she shifted her strategy and ran as a partisan Democrat.

Due to the lack of political constituencies or power bases in her district, she relied heavily upon PAC and Democratic Party funding.

Fenno noted a tension between party influences in Washington and the strength of a legislator’s constituency outside of Washington, and observed that the party’s pull on Thurman increased through the years.

Fenno next studied several campaigns that Congressman Jim Greenwood, a moderate Pennsylvania Republican, ran in a very compact district.

Greenwood’s campaign prepared different direct mail brochures separately targeted to specific areas, individually tailored by issues of importance to the recipient constituency.

Greenwood visited the district’s four major newspapers’ editorial boards every six months, and focused his campaign activities at shopping centers (he called it “going retail”).  There he would seek to “meet voters and change minds.” He avoided town meetings, finding that they were not well attended.

After his first election to Congress, he lobbied early and hard for a position on the Energy and Commerce Committee, which was important to his district.

Greenwood used his refusal of PAC contributions as a campaign pitch and provided good constituent casework service.

Greenwood’s success within the Republican Party leadership as a moderate leader yielded positive new coverage at home for his activities.

Fenno’s final subject was Congresswoman Zoe Lofgren, a Northern California Democrat with strong ties to her diverse, but liberal, district.

To reach her constituents, she promptly responded to mail, and handled citizen case issues.  In her first campaign, she explained an unusual campaign tactic, saying “[s]ometimes we go out, unannounced, and set up an ironing board in front of a grocery store, and invite people to come talk.”  In later years she held more town hall meetings.

As a Judiciary Committee member, she earned media coverage and raised her profile nationally and at home with interviews on the Clinton impeachment hearings.

To better serve her Silicon Valley high tech constituency, Lofgren sought and obtained a position on the Judiciary Committee’s Subcommittee on Courts and Intellectual Property Rights.

Fenno relates that a change in the local economy from the growth of Silicon Valley impacted her votes in Washington — land values skyrocketed and people who had been of modest means were now being subjected to the burdens of the federal estate tax, so Lofgren supported reductions and repeals of that tax.

Calling it a “chicken or the egg stalemate,” Fenno closes by postulating that until more studies are performed in home districts, proper questions that will formulate the research cannot be framed.

Frank M. Reilly teaches constitutional law, election law, and other political science courses at Texas Tech University. He is also a lawyer in private practice in Horseshoe Bay, Texas, and serves as a municipal judge for two Texas cities.  Follow him on Twitter @FrankReilly or on Facebook at JudgeFrankReilly.

 

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May 7: Newt Gingrich (1943) – House Speaker, Republican Whip From Georgia; Led The 1994 Contract With America – Guest Essayist: Scot Faulkner

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Newt Gingrich is the most consequential Republican Speaker in history.  He revitalized a failed Republican Party, forging the first GOP Congressional majority in forty years.

During his tenure, Gingrich revolutionized House operations, including bringing the Legislative Branch into compliance with all federal laws.

Republican Speakers have a rich history of shaping Congress. Two of the three House Office Buildings are named after Republican Speakers.  Rep. Joseph Cannon (R-IL) remains the single most powerful Speaker in House history (1903-1911).  Rep. Nicholas Longworth (R-OH) broke with Teddy Roosevelt to defend the Republican Party in the 1912 election and then broke with President Herbert Hoover to defend American taxpayers against the growth of big government (1925-1931).

Rep. Thomas Reed (R-ME) comes closest to Gingrich’s impact on the Legislative Branch.  Reed was known for his communication ability, and his mastery of parliamentary procedure.  As speaker (1889-1891/1895-1899) he mastered both of these skills to bring the House of Representatives back into alignment with the original rules written by Thomas Jefferson. Many consider his success assured the “survival of representative government”. [1]

Newt Gingrich was born and raised in Georgia.  His early career as a professor of history and geography at the University of West Georgia well prepared him for the many times he would reference America’s founding principles during his political career.

In 1978, Gingrich became the first Republican to win Georgia’s 6th Congressional District.  Once in office, he learned parliamentary combat and the power of well-timed words from Rep. John Ashbrook and the conservatives of the Chesapeake Society. [2]

When many of Chesapeake conservatives followed President Reagan into the Executive Branch, Gingrich formed the “Conservative Opportunity Society” (COS). This became a rallying point for those wanting to make the House Republicans stand for something. [3]

COS members took the skills learned from Rep. John Ashbrook and the older conservative “street fighters” and added their own knowledge of using the media. Live coverage of House sessions had only been available to cable television audiences since March 1979 when CSPAN began to broadcast the House signal.

Through ingenious use of the one-minute speeches, that led the daily sessions, and the special orders, which ended the legislative day, Gingrich and the COS began to build a television audience. In the days before Rush Limbaugh and other conservative media personalities, the COS shows obtained a conservative “cult” following. The COS members became popular icons to a new generation of young conservative activists.  Speaker O’Neill, in an attempt to humiliate the COS, ordered the House cameras to show the empty chamber that the COS was addressing late at night. This only added to the COS mystique as activists outside of Washington saw the empty chamber as a metaphor for COS members standing courageously alone against the powerful forces of big government.

In 1988, Gingrich launched an ethics complaint against then House Speaker Jim Wright (D-TX). He questioned the financial arrangements around Wright’s book, Reflections of a Public Man. Controversy swelled around Gingrich as Democrats attacked him for similar problems with his own 1977 book deal. Such attacks only added to Gingrich’s following among “grassroots” conservatives outside of Washington, DC.

The election of George Bush as president in 1988 led to a historic opportunity for Gingrich. Rep. Dick Cheney (R-WY) had been tapped to become Secretary of Defense. This happened in the wake of the unsuccessful confirmation fight for former Senator John Tower (R-TX). With Cheney leaving the Minority Whip’s position in March 1989, the opportunity presented itself for a conservative insurgency against Michel’s candidate, Rep. Edward Madigan (R-IL).

Madigan had been the chief deputy minority whip and was viewed as the natural successor to Cheney. Republicans tended to reward people in turn and to shy away from insurgency candidates. This tradition of planned succession was symbolized by having conservative Rep. Tom Delay (R-TX) act as Madigan’s campaign manager against Gingrich.

On March 22, 1989, the tradition was shattered as Gingrich was elected by a two-vote margin. “The issue is not ideology; it’s active versus passive leadership,” said Rep. Weber. [4]

Gingrich immediately set about reshaping the opposition of the House. Along with the organizational resources of GOPAC, his personal political action committee, Gingrich built what became known as “Newtworld”.  Joe Gaylord, Gingrich’s top lieutenant and then head of GOPAC, ran this interlocking structure behind the scenes. Dan Meyer moved from Gingrich’s personal office to head the Whip’s office. Tony Blankley, a veteran of the White House and active member of various conservative networks during the Reagan years, became the spokesman. A GOPAC consultant, John Morgan, an expert at tracking polls, began weekly assessments of how this new operation, and its aggressive strategy, were working.

The new organization moved the COS’s combative style to center stage. There were weekly “themes” for Members to focus on. This meant floor speeches backed up by fact sheets and talking points that Members could use back in their districts. An “echo-chamber” of opposition, linked to conservative grassroots groups, was becoming a machine. Its goal was to topple the Democrats in 1992 or ’94.

The elections of 1992 disappointed some House Republicans who had hoped for more voter outrage over the scandals of the 102nd Congress. The Republicans were left to ponder both their minority status in the House, and having to deal with a Democrat in the White House.

On December 7, 1992, the Republicans met to sort out their leadership in the 103rd Congress. Michel remained a declining figure among the insurgent House Republicans, but his popularity gave him another two years as minority leader. Gingrich would have to run his opposition effort as Minority Whip. However, Gingrich’s strategy of aggressive opposition received another major boost. Rep. Richard “Dick” Armey (R-TX) defeated Rep. Jerry Lewis (R-CA) for Chairman of the Republican Conference. Another moderate/nonconfrontationalist was defeated and another conservative in favor of total warfare with the House Democrats was elevated to a key leadership position. [5]

Bolstered at the top by Gingrich and Armey, and by Rep. Jim Nussle’s (R-IA) House Reform group –  the “Gang of Seven”, the COS, the 103rd Congress witnessed daily exposes of Democrat scandals and malfeasance.

On September 27, 1994, Gingrich launched the first “European-style” parliamentary election, by crafting the “Contract with America”.  For the first time in American history, a party ran its Congressional candidates based on an inspirational and visionary manifesto.

The “Contract with America” ignited the Republican base, leading to a 54 seat swing propelling the Republicans into power for the first time since 1954.

As Speaker, Gingrich drove the House’s agenda to pass the major elements of the “Contract” within 100 days.  This was accomplished.  However, Senate inertia and President Clinton’s vetoes prevented most of the “Contract” from becoming law.

Two “Contract” items did become reality, and these changed the Legislative Branch forever.  HR 1, the Congressional Accountability Act of 1995 was the first order of business and the first bill passed in the 104th Congress.  For the first time, the Legislative Branch was required to comply with all the laws it had passed.  True accountability was achieved as Members had to live under the same laws they had thrust onto Americans. [6]

The other action was creating the Office of the Chief Administrative Officer (CAO), which consolidated all non-parliamentary and non-security functions within one office.  Its mandate was to reinvent the operations of Congress to make it run like a business, while being completely transparent and accountable. This became the most comprehensive rethinking of Legislative Branch operations since the first Congress met in 1789.  Obsolete functions were abolished, others were privatized.

Business practices were institutionalized by a team of corporate transformation experts, with the assistance of major accounting firms.  Another team of computer experts implemented the “Cyber Congress”, which thrust House communications into the 21st Century in one giant leap. The result was a lean, customer-focused, accountable operation that saved $186 million and became the model for support services in 44 parliaments around the world.  The reforms were so thorough and effective, that they remain in place to this day.

Gingrich’s policy and budget confrontations with President Bill Clinton defined the balance of his tenure.  Government shutdowns and other brinksmanship forced reforms in welfare and taxes, and reduced the federal budget deficit.

Conservatives became concerned over Gingrich’s seeming loss of focus and the mounting attacks by Democrats. House Appropriators angered conservatives over being increasingly enamored with spending and earmarks. House “revolutionaries” tried to reverse things.  On July 16, 1997 a small band of “true believers”, along with Delay and Armey, mounted a revolt against Gingrich.  This ill-fated “palace coup” weakened both the plotters and the Speaker. [7]

In December 1998, after a disappointing showing in the November elections, Gingrich announced he would not seek re-election as Speaker and would resign from the House. [8]

The looming impeachment of Clinton over the Monica Lewinsky scandal further confused the situation. Rep. Bob Livingston (R-LA), the Chair of the Appropriations Committee and assumed to be the next Speaker, shocked the Chamber by resigning as his own extramarital affair became public.  Amongst the chaos, Rep. Dennis Hastert (R-IL) became Speaker. [9]

Since leaving the House of Representatives, Gingrich remains an insightful commentator and provocative thinker.  Returning the House to the rule of law, and being highly responsive to the will of the voter, remain lasting historic achievements that strengthened our democracy.

Scot Faulkner served as Chief Administrative Officer of the U.S. House of Representatives and as a Member of the Reagan White House Staff.  He earned a Master’s Degree in Public Administration from American University, and a Bachelor’s Degree in Government from Lawrence University

NOTES

[1] A vivid chronicle of Reed’s battle for parliamentary integrity and accountability can be found in Barbara Tuchman’s, The Proud Tower. Ballantine Books, 1962; pages 125-130

[2] Faulkner, Scot, Naked Emperors. Rowman & Littlefield, 2008; pages 81-82.

[3] Ibid., page 25

[4] Komarow, Steven (March 22, 1989). “House Republicans Elect Gingrich to No. 2 Spot, Chart Battle with Democrats”. Associated Press

[5] Op. Cit. Faulkner p. 27.

[6] www.Govtrack.us. “H.R. 1 (104th): Congressional Accountability Act of 1995”

[7] Op. Cit., Faulkner p. 294.

[8] Gingrich, Newt (1998). Lessons Learned the Hard Way. Harper Collins Publishers. pp. 159–160.

[9] http://www.nytimes.com/1998/12/20/us/impeachment-overview-clinton-impeached-he-faces-senate-trial-2d-history-vows-job.html?pagewanted=all&src=pm

 

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May 4: Daniel Patrick Moynihan (1927-2003) – Senate Member From New York, Democratic Party Leader – Guest Essayist: Daniel A. Cotter

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The press and media are full of reports of extreme partisanship and acrimony in Congress and with the White House in recent times.  But not that long ago, the parties at least appeared to work together to solve national problems regardless of party affiliations.  By no means did they agree on everything or make a president with different political party affiliation struggle to achieve his agenda easy when the Congressional power was in the other party’s hands.  But when Daniel Patrick Moynihan retired in 2001, we lost one of those able to navigate across party lines.

Early Life and Career

Moynihan was born on March 16, 1927 in Tulsa, Oklahoma to John Henry, who was a reporter for a local paper in Tulsa, and Margaret Ann (nee Phipps).  When he was six, the family moved to Hell’s Kitchen in New York City.  Moynihan worked an odd assortment of jobs as a child and graduated from Benjamin Franklin High School in East Harlem. After a short stint as a longshoreman, Moynihan attended the City College of New York, which provided free education for New York residents.  After one year at the city school, he joined the United States Navy in 1944 and then enrolled at Tufts University, where he received a degree in naval science in 1946.

After his military service, Moynihan obtained a second undergraduate degree from Tufts in 1948 and then received an M.A. from its Fletcher School of Law and Diplomacy.  Moynihan attended the London School of Economics from 1950 to 1953 as a Fulbright fellow.  Moynihan became politically active in the 1950s, serving in various capacities for New York Governor Averell Harriman.  In 1960, Moynihan was a Democratic National Convention delegate.

National Politics

Shortly after the 1960 DNC Convention, Moynihan began to serve in the national government, something that he would continue for the next fifty years.  He served the Kennedy administration as special then executive assistant to the Department of Labor from 1961 to 1963, and then was appointed the Assistant Secretary of Labor for Policy, Planning and Research from 1963 to 1965.  He worked primarily during that time on what became known as the “War on Poverty.”  In this role, Moynihan issued a report, The Negro Family:  The Case for National Action, known also as “The Moynihan Report,” that was attacked by the left and by the right.  Moynihan would later receive some criticism when in 1994, after the Republicans swept Congress, when he noted with respect to the welfare system, “The Republicans are saying we have a hell of a problem, and we do.”

Moynihan left the Johnson administration in 1965, returning to academics.  In January 1969, Moynihan became Assistant to the President for Domestic Policy and executive secretary of the Council on Urban Affairs under President Richard Nixon.  From late 1969 until the end of 1970, Moynihan served as Counselor to the President.  In 1973, Moynihan became Ambassador to India and, in June 1975, he became United States Ambassador to the United Nations.  The United Nations post was by President Gerald Ford, another Republican.

Senator Moynihan

In 1976, Moynihan was elected to the United States Senate, and would serve for the next twenty-four years.  As a Senator, Moynihan supported the ban on partial-birth abortions, and opposed President Bill Clinton’s universal health care coverage push.  He also opposed NAFTA and the flat tax.  He also voted against the Defense of Marriage Act and the Communications Decency Act.

Despite his working for previous Republican administrations, Moynihan was not a supporter of President Ronald Reagan’s hawkish Cold War policies.  However, during the time that Moynihan served in the Senate, the Democrats controlled the Senate for much of that period.  Despite that party difference, Moynihan was someone who could effectively work across the aisle and work with Republican presidents and congressional members to address various issues of national import.

In a 2010 Daily Beast column (available at https://www.thedailybeast.com/daniel-patrick-moynihan-letters-we-need-more-like-him), John Avlon wrote:

The Moynihan that emerges in these letters is engaging and unfailingly civil, armed with statistics and a sweeping view of history. He could be surprisingly thin-skinned—unlike many politicians, his was a sensitive soul. But it is clear that his counsel was sought by presidents because he brought more light than heat to the conversation. He thought with a sense of historic perspective and he always felt the possibility as well as the limits of government action. He believed that government could improve the lives of its citizens, but he recognized that government overreach could create unintended consequences and provoke political backlash.

Conclusion

Moynihan is one of a dying breed in Washington- someone who effectively could interact with members and presidents from the opposing political party and who as Avlon notes tried to bring the long perspective to various issues.  He was not always right and could take umbrage at those who did not agree with him, but he tried.

Dan Cotter is a partner at Latimer LeVay Fyock LLC and an adjunct professor at The John Marshall Law School, where he teaches SCOTUS Judicial Biographies. He is in the process of writing a book on the seventeen Chief Justices.  He is also a past president of The Chicago Bar Association. The article contains his opinions and is not to be attributed to anyone else.

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May 3: Henry J. Hyde (1924-2007) (R-IL) – House Majority Leader, Judiciary Committee Chairman – Guest Essayist: Gary Porter

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A Matter of Conscience: Henry J. Hyde, Congressman

“One of the great errors of modern politics is our foolish attempt to separate our private consciences from our public acts, and it cannot be done. At the end of the 20th century, is the crowning achievement of our democracy to treat the weak, the powerless, the unwanted as things? To be disposed of? If so, we have not elevated justice; we have disgraced it.”

Congressman Henry Hyde, speaking on partial-birth abortion.

“The right of conscience and private judgement is unalienable and it is truly the interest of all mankind to unite themselves into one body for the liberty, free exercise, and unmolested enjoyment of this right.” Ezra Stiles (1727-1795).

“The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience by in any manner, or on any pretext infringed.”   –  James Madison, original draft of the First Amendment.

James Madison failed at his task of securing an explicit right of conscience in the Constitution.  Nevertheless, it is comforting today to encounter men and women of conscience.  Such was Henry J. Hyde.

Henry Hyde (April 18, 1924 – November 29, 2007) was an American politician best known for sponsoring an amendment, now bearing his name,[1]  which outlawed the use of federal funds in performing abortions.  Over the years, Congress altered the Hyde Amendment several times, but repeatedly passed it nevertheless.

Although the Hyde Amendment was immediately challenged in the courts, the Supreme Court upheld its constitutionality in Harris v. McRae.  The Court stated:

“The funding restrictions of the Hyde Amendment do not impinge on the “liberty” protected by the Due Process Clause of the Fifth Amendment held in Roe v. Wade, 410 U.S. 113, 168, to include the freedom of a woman to decide whether to terminate a pregnancy. . . .

Regardless of whether the freedom of a woman to choose to terminate her pregnancy for health reasons lies at the core or the periphery of the due process liberty recognized in Wade, supra, it does not follow that a woman’s freedom of choice carries with it a constitutional entitlement to the financial resources to avail herself of the full range of protected choices.”

On July 21, 2016, the Democratic Party of the U.S. issued its 2016 platform, containing, for the first time, an explicit call to repeal the Hyde Amendment.[2]  Seemingly in response, six months later on January 24, 2017, the House of Representatives passed H.R. 7, which, according to the press office of Speaker Paul Ryan, “makes the Hyde amendment permanent.”

For his steadfast opposition to abortion, after announcing his retirement from Congress in 2006, Representative Hyde was named a Papal Knight of the Order of St. Gregory the Great by Pope Benedict XVI.  After leaving office the following year, he received the Presidential Medal of Freedom, the nation’s highest civilian honor from President George W. Bush.  Hyde could not attend the award ceremony in person as he remained hospitalized after open-heart surgery, complications of which shortly led to his death at age 83. The Presidential Medal of Freedom citation read:

“A veteran, a lawyer, and a public servant, Henry Hyde has served his country with honor and dedication.  During his 32-year career in the House of Representatives, he was a powerful defender of life, a leading advocate for a strong national defense, and an unwavering voice for liberty, democracy, and free enterprise around the world.  A true gentleman of the House, he advanced his principles without rancor and earned the respect of friends and adversaries alike.  The United States honors Henry Hyde for his distinguished record of service to America.”[3]

“Veteran” referred to Hyde’s service in the U.S. Navy during WWII and his continued service in the Naval Reserve from 1946 to 1968, ending in command of a U.S. Naval Intelligence Reserve Unit in Chicago and retirement at the rank of Commander (O-5).

As a public servant, Hyde served first in the Illinois House of Representatives (1967-1974) including a stint as Majority Leader from 1971 to 1972, and then represented Illinois’ 6th District in Congress for the next 32 years, from 1975 to 2007.

Beyond the 1976 Hyde Amendment, Hyde is perhaps best known for his efforts in leading the impeachment of President Bill Clinton in 1998.  When the Lewinsky Scandal[4] first became public, Hyde apparently did not take calls to impeach Clinton very seriously; he considered the issue to one of be sexual misconduct and not a concern of Congress.[5] That changed after Clinton boldly lied to the House Judiciary Committee, stating that he had not had sexual relations with “Ms. Lewinsky” — with Hyde sitting before him as chairman of the committee!  Hyde skillfully led House “managers” in successfully passing an impeachment resolution and sending the case to the Senate for trial where, despite Hyde’s efforts as chief prosecutor, Clinton was acquitted of perjury and obstruction of justice charges. Hyde ended his closing argument in the Senate trial by stating:

“A failure to convict will make the statement that lying under oath, while unpleasant and to be avoided, is not all that serious…We have reduced lying under oath to a breach of etiquette, but only if you are the President…And now let us all take our place in history on the side of honor, and, oh, yes, let right be done.”

Once more, a call to conscience.

Over the years, Hyde also waged vigorous battles against flag-burning, doctor-assisted suicide, and same-sex marriage.  Speaking out about partial-birth abortion, Hyde eloquently stated:

“This is not a debate about sectarian religious doctrine or about policy options. This is a debate about our understanding of human dignity, what does it mean to be human? Our moment in history is marked by a mortal conflict between a culture of death and a culture of life, and today, here and now, we must choose sides.”

A graduate of Georgetown University, Hyde later earned his law degree from Loyola University Chicago, a Jesuit Catholic University. In 1947, Hyde married the former Jeanne Simpson. Together they had four children, who brought them four grandchildren. Jeanne died in 1992 and Henry soon married the former Judy Wolverton. No further children issued.

When Hyde died on November 29, 2007, Crisis Magazine began a collection of online condolences. They paint a picture of a remarkable patriot:

“… one of the rarest, most accomplished, and most distinguished Members of Congress ever to serve.”

“… one of the great leaders of America’s modern age.”

“…the most eloquent defender of the right to life who ever served in the United States Congress.”

“…the greatest Catholic statesman of our generation.”

“His courage should be an example for us all.”[6]

Perhaps this short bio should end, as it began, with the words of Congressman Henry Hyde:

 “When the time comes as it surely will, when we face that awesome moment, the final judgment, I’ve often thought, as Fulton Sheen wrote, that it is a terrible moment of loneliness. You have no advocates, you are there alone standing before God – and a terror will rip through your soul like nothing you can imagine. But I really think that those in the pro-life movement will not be alone. I think there will be a chorus of voices that have never been heard in this world but are heard beautifully and clearly in the next world – and they will plead for everyone who has been in this movement. They will say to God, ‘Spare him because he loved us,’ – and God will look at you and say not, ‘Did you succeed?’ but ‘Did you try?’”  –Congressman Henry Hyde, speech on abortion.

Amen.

Gary Porter is Executive Director of the Constitution Leadership Initiative (CLI), a project to promote a better understanding of the U.S. Constitution by the American people.   CLI provides seminars on the Constitution, including one for young people utilizing “Our Constitution Rocks” as the text.  Gary presents talks on various Constitutional topics, writes a weekly essay: Constitutional Corner which is published on multiple websites, and hosts a weekly radio show: “We the People, the Constitution Matters” on WFYL AM1140.  Gary has also begun performing reenactments of James Madison and speaking with public and private school students about Madison’s role in the creation of the Bill of Rights and Constitution.  Gary can be reached at gary@constitutionleadership.org, on Facebook or Twitter (@constitutionled).

[1] This “Hyde Amendment” should not be confused with the Hyde Amendment of 1997, which dealt with an entirely different matter.

[2] http://www.presidency.ucsb.edu/papers_pdf/117717.pdf

[3] https://georgewbush-whitehouse.archives.gov/news/releases/2007/11/20071105-7.html

[4] https://en.wikipedia.org/wiki/Clinton%E2%80%93Lewinsky_scandal

[5] Hyde had himself confessed to an adulterous affair that had taken place in the early 1960s before he entered public life, calling it a “youthful indiscretion[].”

[6] https://www.crisismagazine.com/2007/remembering-henry-hyde-2

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May 2: Thomas Phillip, Jr. (Tip) O’Neill (1912-1994) – House Speaker, Democratic Whip & Majority Leader From Massachusetts – Guest Essayist: Daniel A. Cotter

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As noted in the Daniel Patrick Moynihan column in this series, the press and media are full of reports of extreme partisanship and acrimony in Congress and with the White House in recent times.  But not that long ago, the parties at least appeared to work together to solve national problems regardless of party affiliations.  Like Moynihan, Thomas Phillip (Tip) O’Neill was one of those who was able to work with the other side at least when it came to foreign affairs.

Early Life and Career

Tip was born on December 9, 1912, to Thomas Phillip O’Neill, Sr. and Rose Ann (nee Tolan), in North Cambridge, Massachusetts.  His mom died when he was nine months old and his father was a bricklayer who became Superintendent of Sewers.  Tip’s nickname came from a Canadian baseball player whose last name was O’Neill and whose nickname was “Tip.”  Tip graduated from Boston College in 1936.  Tip ran for a seat on the Cambridge City council as a college senior, the only election he ever lost.  It was from that campaign that he learned the lesson that would become his most famous quote- “All politics is local.”

Fresh from Boston College, Tip ran for and won election to the Massachusetts House of Representatives.  Tip became the Minority Leader of the Massachusetts House from 1947 to 1949 and was Speaker of the Massachusetts House from 1949 to 1953, becoming the first Democratic Speaker in Massachusetts’ history.

National Politics

Tip ran for the United States House of Representatives vacated by John F. Kennedy in 1952 when Kennedy ran for the Senate.  He won and was re-elected 16 more times.  During his second term in the House, he was selected to the House Rules Committee.  Tip bucked President Lyndon B. Johnson’s support of the Vietnam War, coming out opposed to the United States intervention.

Tip was elected House Majority Whip in 1971 and, in 1973, was elected House Majority Leader.  In that role, he called for the impeachment of President Richard M. Nixon.  A scandal in the House caused the then-Speaker, Carl Albert, to retire, and Tip was elected Speaker in 1977.  He would hold that position for the next ten years, until he retired from Congress on January 3, 1987.

Tip was a proponent of universal health care and tackling jobs and poverty.  When Jimmy Carter became President in 1977, expectations were that there would be much accomplished.  However, while President Carter was focused on reducing government spending, Tip had other ideas as Speaker, including rewarding party members.  When Ronald Reagan became president, Tip and the new president collapsed, and the Senate had shifted to a Republican majority.  Tip called President Reagan “the most ignorant man who had ever occupied the White House” and was otherwise very critical of President Reagan.  Despite the public vitriol, the two were always on friendly terms.  In one interview, President Reagan mentioned that he had seen Tip make unflattering comments about Reagan.  Reagan called Tip to ask why the attacks, that he thought these two were friends.  Tip is reported to have replied, “Buddy, it is just politics. After 6 p.m. we are friends.”  After a visit between the two early in Reagan’s first term, the two were able to navigate social security reform and a tax reform plan and other legislation.

When it came to foreign affairs and our involvement in the Soviet-Afghan war, Tip gave his approval and through his House positions ensured that billions went to the Mujahideen.  When Reagan was shot, Secretary of State Alexander Haig asserted he was in charge, O’Neill was the next in line after Vice President George H.W. Bush.

Tip was also very involved in the peace efforts in Northern Ireland.  He and several other congressional leaders helped to achieve peace between Northern Ireland and England.  Tip died on January 5, 1994, of cardiac arrest.  His wife of many years, Mildred “Millie” Anne Miller, outlived him by almost a decade.  President Bill Clinton said of Tip at his death:

“Tip O’Neill was the nation’s most prominent, powerful and loyal champion of working people…”

Conclusion

While Tip and Reagan had different political views and approaches, they showed that great debates and the efforts of compromise sometimes can result in good end results for the nation.  Tip is the third longest serving Speaker in United States House history and was a strong “New Deal Democrat” who believed strongly that through public service he truly could positively affect the lives of working people.

Dan Cotter is a partner at Latimer LeVay Fyock LLC and an adjunct professor at The John Marshall Law School, where he teaches SCOTUS Judicial Biographies. He is in the process of writing a book on the seventeen Chief Justices.  He is also a past president of The Chicago Bar Association. The article contains his opinions and is not to be attributed to anyone else.

 

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May 1: Robert Taft (1889-1953) – State Representative, U.S. Senator From Ohio; Son Of President William Howard Taft – Guest Essayist: Tony Williams

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Leadership styles can often impact how political leaders and statesmen are remembered. FDR and Reagan were excellent communicators and exhibited great charm, Harry Truman was a man of the people and tough, JFK wrapped himself up in the myth of Camelot, Lyndon Johnson was a political operator and a master of the Senate.

Senator Robert A. Taft had none of these characteristics and is largely forgotten today. He seemed distant because he was often a master of facts and statistics rather than a masterful politician.  As a result, he could seem cold and aloof.  Yet, he was an important political figure of the mid-twentieth century whose career and political philosophy helped define the Republican Party of that era.

Taft was a scion of a leading Cincinnati family and the son of William Howard Taft who served as a Governor of the Philippines, Secretary of War, President, and later Chief Justice of the Supreme Court.  They established a minor political dynasty, though not quite that of the Roosevelts, Kennedys, or Bushes.

Taft was raised in a life of affluence in Cincinnati and around the country and world. He may have inherited many opportunities but worked hard to succeed in becoming the valedictorian at Yale University and Harvard Law School.  He became a corporate lawyer, married, and engaged in local philanthropic activities. He never tried to win over friends and political allies with a congenial personality but was more interested in a good character and strong work ethic.

World War I was a defining event in Taft’s life and his political philosophy. He opposed American intervention but wanted to defend American neutral rights and national security. He served with Republican Herbert Hoover in the Food Administration during the war and the American Relief Administration in Europe helping to feed the shattered and starving populations there after the war.  During his time in Europe, he developed an antipathy to becoming involved in European affairs and hated both the collective ideologies of bolshevism and fascism that took hold in Europe.  Above all, he opposed the unlimited global commitment that seemed to come with the Treaty of Versailles and League of Nations. He developed a lifelong aversion to the crusading foreign policy spirit of Wilsonianism to “make the world safe for democracy.”

Despite being a relative introvert, Taft ran for public office out of a sense of family and personal duty to serve the public.  He served in the Ohio state legislature from 1920 to 1926, where he was interested in tax reform and resisted the influence of the Ku Klux Klan.

The Great Depression that gripped the nation and the New Deal that FDR conceived to battle the economic crisis continued to shape Taft’s thinking and serving in public office. He opposed the New Deal political philosophy that expanded the federal welfare state and powers of executive agencies. He thought that the New Deal was substituting “an autocracy of government for a government of law.” He feared that the growth of government would negatively impinge upon personal liberty, upset the balance of federalism, and create a massive state with huge budget deficits.

Nevertheless, Taft was a midwestern conservative Republican who was often equally suspicious of Wall Street as he was of Washington, D.C.  While he opposed massive regulatory intrusion in the private market and confiscatory taxes, he fought against monopoly and was not a believer in laissez-faire.  He supported reasonable regulation, higher taxes (and lower spending) to balance budgets, and a basic social safety net.

Taft was elected to the U.S. Senate in 1938, and quickly established himself as a hardworking, if somewhat dull and lackluster, member. Characteristically, he studied hard to become an expert on the issues rather than spending time making backroom deals and pressing the flesh. He served on several committees including the Education and Labor Committee.

As tyrannies marched their war machines across Asia, Africa, and Europe during the 1930s, the New Deal gave way to foreign policy issues.  Unsurprisingly, Taft adopted a thoughtful and relatively flexible isolationist stance.  He did not want to get involved in the coming war, but supported preparedness to defend American shores. He supported selling other countries arms so that they could defend themselves without American intervention. He feared that the wily FDR was leading the country into war and opposed the peacetime draft because of its impact on individual liberty.

Taft supported American entry into World War II after Pearl Harbor and the German declaration of war.  During the war, he was just as concerned about the rise of the warfare state with its budget deficits, wage and price controls, huge government spending, and threats to civil liberties as he was in peacetime with the New Deal welfare state.  Taft consistently defended the principles of limited government to protect individual liberty in a democracy.

During the war, Senator Taft had presidential aspirations but always seemed to lack the political skills necessary to win the Republican nomination or attain the highest office.  Moreover, FDR was simply too popular as commander-in-chief even if Republicans and conservative Southern Democrats began chipping away at the New Deal electoral coalition.

Taft entered the postwar world with his persistent doubts about liberal internationalism and government programs at home. Taft opposed the United Nations much as he had the League of Nations and was a voice against American commitments abroad during the early Cold War. He did not want to impose democracy on any nation or tell them how to govern their foreign policy decisions. Indeed, he was a strong anti-imperialist who warned against America putting “Our fingers…in every pie” with unlimited global interventions.

In 1947, Taft was the co-sponsor of the Taft-Hartley Act that is synonymous with his historical reputation.  Contrary to historical opinion, he was not antilabor and even supported the right to strike.  Even President Truman called for controls on strikes and federal power to intervene during a wave of postwar strikes across the nation.  Taft’s expertly guided his bill through Congress.  It banned the closed shop in which workers were forced to join the union as a condition of employment, banned secondary boycotts, and allowed both employers and unions to seek federal injunctions.  Truman vetoed the bill, but the Republicans controlled both houses of Congress after the 1946 elections, and overrode the veto.

After his reelection for a third term in the Senate, Taft reached the height of his power as he nearly won the Republican presidential nomination in 1952 and was elected Senate majority leader. True to his principles, he denounced Joseph McCarthy’s anti-Communist smear tactics and American intervention to save the French war effort in Vietnam. However, in 1953, he discovered he had cancer and was dead within the year.

Taft was known as “Mr. Republican” because of his allegiance to limited government at home and a non-interventionist foreign policy that represented mainstream Republican thinking during the mid-twentieth century.  While not the most gregarious politician, he was a well-respected, diligent statesman who dedicated his life to an ideal of public service.

Tony Williams is a Constituting America Fellow and a Senior Teaching Fellow at the Bill of Rights Institute. He is the author of six books including the newly-published Hamilton: An American Biography.

 

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April 30: Michael Mansfield 1903-2001 House Member Senate Majority Leader MT Guest Essayist James Legee

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Michael Joseph Mansfield served as both representative and senator from the state of Montana, and would go on to serve as United States Ambassador to Japan.  Mansfield was born March 16, 1903 in New York though his life soon took a turn for the difficult.  By the age of seven, Mike Mansfield’s mother had passed away and he was sent to live with an aunt and uncle in Great Falls Montana.  At fourteen he dropped out of school and joined the Navy during WWI.  Mansfield would serve on Naval convoys until his real age was discovered and he was discharged.  Mansfield would rejoin the military and serve with the Army and Marine Corps until 1922; while a Marine, Mansfield would serve in China and the Philippines which fostered a lifelong interest in the East.

After his military service, the would-be Senator Mansfield returned to Butte, Montana and found a job in a mine.  Mansfield’s wife Maureen Hayes encouraged him to pursue his education and by 1934 he had completed his high school, bachelor’s and master of arts.  Passionate about politics and history, he taught courses on Latin America and East Asia until 1942 when he won the house seat for MT-1 as a Democrat, formerly held by Jeanette Rankin (a committed pacifist and the sole vote against entry into World War Two).

As a member of the House, Mansfield sat on the Foreign Affairs Committee and quickly garnered a reputation as an expert on Asia.  In 1944 he served on several congressional trips to China.  His report to the House criticized Chang Kai Shek’s nationalist movement as only tacitly democratic and in practice oppressive, while Mao’s communist forces retained broader popular support.  Despite what in hindsight seem to be accurate statements, they were magnified in the partisan politics of the 1950 Senate campaign, as well as in the context of the “loss” of China in May of that year to Mao’s forces.  He ran again in 1952 for Senate and was successful, despite the opposition of incumbent Republican Zales Ecton and the campaigning of the infamous Senator Joseph McCarthy.

Remembered today for his staunch opposition to the Vietnam war, Mansfield, alongside fellow Catholic, and fellow junior Senator John F. Kennedy of Massachusetts, aided in the ascension of Ngo Dinh Diem.  A devout Catholic, Diem resided at a seminary in New Jersey as a guest of Cardinal Spellman; while he was an efficient bureaucrat in Vietnam, he had a deep hatred for communism and resentment of French colonial rule which led to exile in America.  Supreme Court Justice William O. Douglas organized the 1953 meeting between Kennedy, Mansfield and Diem which was deeply influential for the two Senators.  Douglas assured Kennedy and Mansfield that Diem was wildly popular in Vietnam, while Diem convinced them that the French would falter in their struggle against Ho Chi Minh’s guerillas.

The next year brought Diem’s predictions to life when the French garrison at Dien Bien Phu was besieged and destroyed by General Vo Nguyen Giap.  Mansfield, among a handful of other senators, recommended Diem to Eisenhower’s Secretary of State John Foster Dulles, as the solution to the impending power vacuum in South Vietnam, as France worked to negotiate with Minh and the communists.

Diem’s tenure as Prime Minister was quickly challenged in 1956, when a conflict between his government and several sects (some criminal, some backed by the French) broke out.  A memo from Kenneth T. Young a state department advisor on Vietnam to Walter S. Robertson Undersecretary of State (included in the Pentagon Papers Pentagon Papers V B 3c, 946 ) notes Mansfield “would have us stop all aid to Viet-Nam except of a humanitarian nature…” should State withdraw its support of Diem.

Outside of Asia, Mansfield was a strident critic of abuses and failures by the intelligence community.  He grilled CIA director Allen Dulles after their failure to anticipate the Hungarian uprising, as well as British and French involvement in the Suez Canal crisis in 1956.  Mansfield went so far as to call for a joint congressional committee to investigate and oversee the CIA.  Senate Majority Leader Lyndon B. Johnson put this plan on ice when he appointed Mansfield Assistant Majority Leader.

In 1961, with Johnson as Vice President, Mansfield became Senate Majority Leader.  To this day, Mansfield is the longest serving majority leader.  A far different man from the browbeating Johnson, Mansfield brought the demeanor of a scholar to the Senate, where despite strong ideological convictions, sought a collegial and professional environment.  Mansfield sought a sharp break from the way business had been done under Johnson, though he’d go on to shepherd and support President Johnson’s great society initiatives.

Conditions under Diem’s leadership in Vietnam deteriorated.  In 1962 President Kennedy sent Mansfield (as well as a morose Vice President Johnson) to Vietnam in an attempt to understand conditions on the ground.  Mansfield returned with a damning report on the progress of the South Vietnamese government and efficacy of American foreign policy there.  While he praised his old friend Ngo Dinh Diem as “a dedicated, sincere, hardworking, incorruptible and patriotic leader” he noted that “Viet Nam, outside the cities, is still an insecure place which is run at least at night largely by the Vietcong. The government in Saigon is still seeking acceptance by the ordinary people in large areas of the countryside. Out of fear or indifference or hostility the peasants still withhold acquiescence, let alone approval of that government. In short, it would be well to face the fact that we are once again at the beginning of the beginning.”  Mansfield concluded his 1962 report with this sobering question: “…how much are we ourselves prepared to put into Southeast Asia and for how long in order to serve such interests as we may have in that region? Before we can answer this question, we must reassess our interests, using the words ‘vital’ or ‘essential’ with the greatest realism and restraint in the reassessment.”

Kennedy continued to expand America’s role in South Vietnam, despite little to show for the billions already spent.  Mansfield’s friend, President Diem was assassinated in a military coup on November 2, 1963.  His friend, President John F. Kennedy would fall to an assassin’s bullet a mere 20 days later.

Mansfield increased in his skepticism of American intervention in Vietnam to outright opposition.  He offered controversial Amendments to Military Authorization act in the 1970s which limited how research funds were spent.  In 1976 he retired and in 1977 was appointed by President Carter to serve as Ambassador to Japan.  He would remain in the role until 1988, and in 1989 was awarded the Presidential Medal of Freedom by Ronald Reagan.  The Senator passed away on October 5, 2001 and is interred with his wife at Arlington National Cemetery.

James Legee, Visiting Lecturer, Framingham State University Department of Political Science

 

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April 27: Lyndon Baines Johnson (LBJ) (1908-1973) 36th U.S. President, Vice President, House Member, Senate Minority & Majority Leader From Texas – Guest Essayist: Daniel A. Cotter

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Author Robert A. Caro has been at work for years writing his definitive biography of Lyndon Baines Johnson.  In Volume 3, “Master of the Senate,” Caro explores the twelve years that LBJ spent in the Senate and truly became the Master of that body, the youngest majority leader in history.  But as the title of this installment notes, he held several other powerful positions in his long political career that Caro continues to chronicle.

Early Life and Career

LBJ was born on August 27, 1908 in Texas, to Samuel Ealy Johnson Jr. and Rebekah Baines.  He graduated from Johnson City High School, then in 1924 enrolled at Southwest Texas State Teachers College but left shortly after to move to Southern California. After working for a few years, he returned to Southwest (later became Texas State University) and obtained his degree while working, including teaching at a segregated school teaching Mexican-American children.  He then began his career teaching public speaking.

Politics

LBJ began his long career in politics in 1931, after Richard Kleberg won election as a United States Representative from Texas, naming LBJ his legislative secretary. It was the perfect job for the politically aspiring LBJ because Kleberg handed most of the day-to-day duties to LBJ.  LBJ was a strong supporter of President Franklin Delano Roosevelt and FDR’s “New Deal.”

LBJ married “Lady Bird” in 1934.  In 1935, he was named the head of the Texas National Youth Administration but resigned to run for Congress.  From 1937 until 1949, LBJ served in the House of Representatives.  In 1949, he began his tenure as a United States Senator, where he would serve until 1961, when he became President John F. Kennedy’s Vice President.  LBJ served as the Majority Whip from 1951 until 1953, Minority Leader from 1953 to 1955, and then Senate Majority Leader from 1955 until he left the Senate.

While in the House, he was appointed a Lieutenant Commander in the U.S. Naval Reserve and served active duty starting in December 1941, just after the attack on Pearl Harbor.  LBJ earned the Silver Star, the American Campaign Medal, Asiatic-Pacific Campaign Medal, and the World War II Victory Medal.  He was released from active duty on July 17, 1942.

The 1948 Senator race has in retrospect alleged to have been rigged by LBJ, and he received an assist in his efforts to be declared the winner by Abe Fortas, a friend who he would later reward with a Supreme Court seat.

As soon as LBJ arrived, he began his efforts to gain the respect and trust of senior Senators and gained favor early.  He was appointed to the powerful Senate Armed Services Committee and soon created the Preparedness Investigating Subcommittee.  When he became the Minority Leader in 1953, he was the youngest person to hold that position.  He eliminated seniority as the criteria for committee appointments, giving him added power.  LBJ as Majority Leader worked closely with President Dwight D. Eisenhower to pass his agenda.

According to Caro, LBJ was the most effective Senate Majority Leader that we have ever had in our history, understanding who each Senator was and what it would take for a vote on a piece of legislation.  He would use his mastery demonstrated in the Senate to great advantage when he became President.

Vice President and President

The Kennedys knew they needed the votes of Southern Democrats if JFK was to be successful and LBJ became his Vice President.  Due to a change in Texas law LBJ requested, he became not only Vice President but also was re-elected to the Senate.  He withdrew from the Senate as required on inauguration.

LBJ sought to maintain the powers he held as Majority Leader, but the Democratic Caucus rejected his efforts.  JFK kept him busy with various task forces and committees.  On November 22, 1963, on Air Force One, he was sworn in as President after JFK was assassinated.  President Johnson strongly pressed for passage of the Civil Rights Bill to honor JFK and his legacy.  LBJ created the Warren Commission to investigate JFK’s assassination.

LBJ knew how to get things through Congress and used various techniques and his ability to convince members of the Senate to vote to get the Civil Rights Act of 1964 and the Voting Rights Act of 1965 passed.  LBJ pushed for his “Great Society” legislation and began a “War on Poverty” as well.

The LBJ presidential years were productive on the legislative front, with the Immigration and Nationality Act of 1965, the Elementary and Secondary Education Act of 1965, Head Start legislation, and many other pieces of legislation.

LBJ’s presidency also saw steep escalations of our presence in Vietnam.  On March 31, 1968, he surprised the nation when he announced, “I shall not seek, and I will not accept, the nomination of my party for another term as your President.”  A variety of reasons are given for LBJ’s decision, including Vietnam, his failing health, and his nomination of Thurgood Marshall as the first African-American to sit on the Supreme Court of the United States.

Conclusion

LBJ died of a massive heart attack on January 22, 1973.  LBJ is remembered for his significant legislative achievements both as a member of Congress over a long period of time and in his Vice President and President roles.  That legacy is offset by his Vietnam War strategy and results.  Few if any senators in the last fifty years have demonstrated the mastery that LBJ possessed.

Dan Cotter is a partner at Latimer LeVay Fyock LLC and an adjunct professor at The John Marshall Law School, where he teaches SCOTUS Judicial Biographies. He is in the process of writing a book on the seventeen Chief Justices.  He is also a past president of The Chicago Bar Association. The article contains his opinions and is not to be attributed to anyone else.

 

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April 26: Howard Worth Smith (1883-1976) – House Member From Virginia, Rules Committee Chairman – Guest Essayist: Bruce Dierenfield

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Howard W. Smith, a Virginia Democratic congressman, was one of America’s most powerful politicians from the New Deal to the Great Society. A master obstructionist who chaired the House Rules Committee, he used his power to fight the liberal agendas of presidential administrations from Franklin D. Roosevelt to Lyndon B. Johnson. He was particularly concerned about the influence of Communists and wrote the Alien Registration Act of 1940, legislation that eventually paved the way for government targeting of radicals during the Cold War. He also saw Communism at the heart of the civil rights movement and attempted to kill the Civil Rights Act of 1964 by introducing an amendment to include women under its provisions. Ironically, this helped the measure pass and stands as an important part of Smith’s legacy.

Howard Worth Smith was born on February 2, 1883, in rural Broad Run, Fauquier County. He attended public schools and graduated from Bethel Military Academy in Warrenton, Virginia. After graduating from the University of Virginia, he opened a law practice in Alexandria. During World War I (1914–1918), he served as assistant general counsel to the Federal Alien Property Custodian, which administered claims relating to the seizure of foreign-owned property. From 1918 until 1922, Smith was commonwealth’s attorney for Alexandria, before becoming a corporation court judge. As his career in law and politics blossomed, “Judge” Smith also pursued interests in farming, dairying, and banking, as well as part ownership of the Alexandria Gazette. He married Lillian Proctor on November 4, 1913, and they had two children—Howard Jr. and Violett. After his first wife died in the worldwide flu pandemic of 1919, Smith married Ann Corcoran in 1923.

In 1930, Smith won election to the United States House of Representatives from Virginia’s Eighth Congressional District and advocated states’ rights, fiscal responsibility, and white supremacy. As the Great Depression pushed the federal government to embrace liberal solutions to the fiscal crisis, Smith found himself increasingly at odds with the direction of national policy. His ire was particularly drawn toward Communists, whom he believed were behind the push for social welfare, organized labor, and the civil rights movement.

To fight subversion, Smith wrote the Alien Registration Act, or Smith Act, of 1940, which required aliens to register with the federal government and which made it a crime to advocate the overthrow of the federal government. It was this law that became a crucial weapon in targeting radicals during the Cold War, culminating in the U.S. Supreme Court decision Dennis v. United States (1951), which upheld the convictions of several Communist Party leaders. The law remains in effect.

At the same time, Smith tried to redress the balance of power between organized labor and business. He held hearings on the National Labor Relations Board in 1940, which was established under the pro-union Wagner Act of 1935. The well-publicized hearings’ recommendations ultimately resulted in the Taft-Hartley Act of 1947, which outlawed compulsory unionism and secondary boycotts, among other provisions.

Smith used his considerable parliamentary skills to delay, sabotage, or kill legislation for government assistance and civil rights. As an obstructionist, he was an acknowledged master, leading the one-hundred-member conservative coalition of southern Democrats and northern Republicans and chairing the powerful House Rules Committee, which set the conditions under which bills could be considered. So vast was Smith’s influence that U.S. president John F. Kennedy supported successful efforts to reduce the powers of the Rules Committee.

When the monumental Civil Rights Act of 1964 was proposed, the Rules Committee had been largely emasculated. Nevertheless, Smith used every trick at his disposal to try to sink the measure. When passage nevertheless seemed likely, Smith, at the urging of members of the National Woman’s Party, volunteered to introduce an amendment to give women, especially white women, equal rights in employment. In this respect, Smith can be called a midwife of the modern feminist movement, although his impact can be considered ironic given the fact that some claim he added the word “sex” to the bill’s language as a way to draw votes away from the proposed legislation, which he detested. Smith later insisted that he sincerely supported women’s rights, but the Congressional Record notes that there was laughter when Smith introduced his amendment.

In a half-century of politics, Smith lost only two elections. When U.S. senator Carter Glass died in 1946, Smith ran unsuccessfully to replace him. But the Byrd Organization, the state’s powerful Democratic political machine to which Smith belonged, threw its weight to a rival candidate, A. Willis Robertson. Smith’s long career ended with his second defeat twenty years later. In a shocking upset, the eighty-three-year-old Smith lost his bid for party renomination to George C. Rawlings Jr., a little-known liberal challenger, who in turn lost the general election to Republican William L. Scott.

Smith, a longtime Episcopalian, died on October 3, 1976, and is buried near his ancestral home in Broad Run.

Time Line

February 2, 1883 – Howard W. Smith is born in Broad Run.

1930 – Howard W. Smith wins election to the U.S. House of Representatives, where he advocates for states’ rights, fiscal responsibility, and white supremacy.

1940 – Howard W. Smith authors the Alien Registration Act, or Smith Act, which requires aliens to register with the federal government and makes it a crime to advocate the overthrow of the federal government.

1964 – Howard W. Smith introduces an amendment to the civil rights bill that gives women equal rights in employment. Though the measure is intended to slow the bill’s passage, it is now considered a crucial part of the Civil Rights Act.

1966 – Howard W. Smith’s long career ends when he loses his bid for party renomination to George C. Rawlings Jr., little-known liberal challenger, who in turn loses the general election.

October 3, 1976 – Howard W. Smith dies.

Bruce Dierenfield is a professor of history at Canisius College in Buffalo, New York. Entry originally contributed to Encyclopedia Virginia. Reprinted with permission.


Categories

Twentieth Century History (1901–2000)  Civil Rights Movement  Women’s History

Jim Crow Era  Representatives of Virginia (U.S.)

Further Reading

Brauer, Carl. “Women Activists, Southern Conservatives, and the Prohibition of Sex Discrimination in Title VII of the 1964 Civil Rights Act.” Journal of Southern History 49 (1983): 37–56.

Dierenfield, Bruce J. Keeper of the Rules: Congressman Howard W. Smith. Charlottesville: University Press of Virginia, 1987.

Citations

APA Citation:

Dierenfield, B. Howard W. Smith (1883–1976). (2014, June 5). In Encyclopedia Virginia. Retrieved from http://www.EncyclopediaVirginia.org/Smith_Howard_Worth_1883-1976.

MLA Citation:

Dierenfield, Bruce. “Howard W. Smith (1883–1976).” Encyclopedia Virginia. Virginia Foundation for the Humanities, 5 Jun. 2014. Web. 25 Apr. 2018.

First published: November 6, 2008 | Last modified: June 5, 2014

Contributed by Bruce Dierenfield, a professor of history at Canisius College in Buffalo, New York.

https://www.encyclopediavirginia.org/Smith_Howard_Worth_1883-1976#start_entry

 

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April 25: Samuel Rayburn (1882-1961) – House Speaker From Texas – Guest Essayist: Patrick Cox

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Sam Rayburn of Texas – The Longest Serving Speaker of the U.S. House of Representatives

Samuel Taliaferro Rayburn was one of the most influential and respected leaders in American history.  Rayburn served with distinction as he achieved many important changes to American society, government and the nation’s economy.   Rayburn holds the record for serving longer than any other Speaker of the House in U.S. history. According to longtime friend and colleague Congressman Richard Bolling, Rayburn was cleverly described as the “baldest and levelest head in Washington.” He served fifty years from his northeast Texas 4th Congressional District in the House and seventeen as the House Speaker.

As the House Speaker, Rayburn served during the administrations of four different presidents – Franklin Roosevelt, Harry Truman, Dwight Eisenhower, and John Kennedy. Rayburn was fond of saying that he served “with” four presidents, not “under” any chief executive.  During his years as Speaker, he was at the epicenter of monumental decisions during World War II, the Cold War, the modern Civil Rights movement, the early years of the Space Age, and the emergence of the United States as a leader in international affairs. Historians recognize Rayburn as among the most influential House Speakers and political leaders in American history.  He was born in the small community of Flag Springs near Bonham, Texas in 1882 and died of cancer in Bonham in 1961 after serving 48 consecutive years in Congress.

The way to get ahead in the House is to stand for something and to know what it is you stand for.

Rayburn first was elected to the Texas Legislature as a State Representative in 1906.  He became Speaker of the Texas House of Representatives at the age of 29.  Interestingly, Rayburn served in the Texas House and became friends with Sam Johnson from Central Texas – the father of Lyndon Johnson. He then decided to run for the U.S. Congress in 1913 when Woodrow Wilson was President of the United States.  Rayburn worked his way up the leadership ladder and came into his own as a legislator during the presidency of Franklin D. Roosevelt in the 1930’s.  The impact of the Great Depression during this decade led to the creation of the most significant legislative effort to reform and regulate economic life that America had yet experienced.  Rayburn was a protégé of fellow Texas Congressman John Nance Garner of Uvalde, Texas.  Garner served as House Speaker and then became Vice President for the first two terms of the Roosevelt Administration in the 1930’s.  Rayburn and Garner remained friends and political allies even after Garner retired to his Uvalde home in 1942.

Working closely with President Roosevelt and Vice President Garner, Rayburn played a pivotal role in the passage of major legislation that composed the essence of the New Deal.  In his capacity as chair of the Committee on Interstate and Foreign Commerce, Rayburn’s legislation led to the regulation of the sales of stocks and bonds through creation of the Securities and Exchange Commission (SEC).  Thomas Corcoran, legal counsel for the Reconstruction Finance Corporation, later recalled: “The first people to stand up against Wall Street were the Texans—Garner and Rayburn.”

Among other New Deal regulatory measures, Rayburn co-authored the Emergency Railroad Transportation Act, the Truth-in-Securities Act, the Stock Exchange Act, the Federal Communications Act and the Public Utility Holding Company Act.  Although all these acts were important in creating a framework of public safeguards and economic regulations, most important to Rayburn was his involvement in establishing the Rural Electrification Agency (REA).  The REA changed the way rural Americans lived more than any other New Deal agency.  In 1935, when the REA, was created, less than ten percent of American farms had electricity.  By 1950, ninety percent of American farms and rural America had electricity supplied by electric cooperatives.  To this day, electric cooperatives remain popular and are widespread throughout the entire nation.

There is no degree in honesty. You are either honest or dishonest.

As a politician and citizen, Sam Rayburn was a plain talker and widely known for his honesty and integrity. Although he lived an almost monastic life as a politician and lawmaker, he loved interacting with people and enjoyed the simple pleasures of farm and ranch work.  He was frank and known for his extensive knowledge of the Constitution and the governing process.  “I have found that people respect you if you tell them where you stand,” he often stated.  He was often referred to as “Mr. Sam” by his friends and colleagues.  Beyond his Texas home and his congressional district, he was widely recognized and respected by members of both political parties, by the media, and by foreign leaders.  His foremost protégé was Congressman Lyndon Johnson, who would rise to become U.S. Senator, Vice-President and President in 1963 following the Kennedy assassination.  Johnson publicly referred to Rayburn and praised him for his fatherly image and guidance.  When the two leaders met in the hallways of the Capitol, the taller Johnson would often “bend over and kiss him on his bald head.”

The rise of Hitler to power in Germany and his invasion of Poland in 1939 turned American attention away from domestic matters and towards the global threat of right-wing totalitarian regimes.  While Americans looked on in distress as country after country in Europe and Asia fell to the Nazis, Rayburn provided Roosevelt with crucial support for the Lend Lease Act, which granted the president wide powers to aid the Allies, and for the extension of the draft for the U.S. military.  Rayburn obtained his lifelong goal when he became Speaker of the House in 1939.  In 1941 the Japanese attack on Pearl Harbor propelled the United States to a declaration of war.  Speaker Rayburn mobilized the Congress to address the pressing needs of America’s global commitments in the war.  “Without vision, nations perish,” Rayburn said.  He recognized that the United States had a pivotal role to play in international affairs during war and in peace.

Rayburn became the first member of Congress to be told about the Manhattan Project during World War II, the secret government plan to develop an atomic bomb in advance of Germany.  He used his considerable political expertise to keep the enormously expensive project secret, concealing it even from the House Committee on Appropriations, until after the atomic bombs fell on Japan in August 1945 and World War II finally ended.

We are not going to play politics – the country comes first

After World War II the attention of the nation turned back to domestic issues, but in an era of prosperity, tensions focused less on economic regulation and more on social justice.  In a time of racial segregation, the emerging civil rights movement proved a tangled problem for southern Democrats such as Sam Rayburn.  His friend Cecil Dickson once observed, “Rayburn is always watching out for what he calls ‘the real people’—those who come into life without many advantages and try to make a living and raise their families.  The other people, well-born and with advantages, can get just about everything they want without government help, but ‘the real people’ need the protection of the government.”

Yet Rayburn, along with the vast majority of Southern Democrats in this era, had supported segregation and resisted real civil rights for African Americans throughout most of his career.   During the Civil Rights Movement of the 1950s Rayburn’s position on this matter changed; as his Congressional career entered its final stage, Sam Rayburn came to extend his support for government protection for ordinary Americans to include those Americans who were people of color. Rayburn lent his support to the Civil Rights Act of 1957 that created the United States Commission on Civil Rights to investigate systematic discrimination, such as voting discrimination.  The 1957 legislation set the stage for the pivotal civil rights acts of the 1960’s when his friend and protégé Lyndon Johnson became President.

In October 1957, President Harry S. Truman traveled to Bonham to dedicate the Sam Rayburn Library, a white marble structure that continues to house Mr. Sam’s books, papers and memorabilia. Rayburn continued to serve in Washington until his failing health forced him to return to Bonham, the place “where people know it when you’re sick and where they care when you die,” Rayburn said. Speaker Rayburn died from pancreatic cancer on Nov. 16, 1961 and was buried in Bonham. More than 30,000 people crowded into Bonham for Mr. Sam’s funeral at the First Baptist Church. In attendance were three U.S. presidents—then-President John F. Kennedy, former President Harry Truman, former President Dwight Eisenhower—and then Vice President and future president Lyndon Johnson.

I have always been a disciple of the doctrine that people are good folks, and I have great faith in them.

The Sam Rayburn Library and Museum in Bonham, Texas, was completed in 1957 to house the books, papers, and political artifacts of Speaker Rayburn. The building served as Speaker Rayburn’s district office from 1957 until 1961. The Dolph Briscoe Center for American History of the University of Texas at Austin owns and operates the museum, which is a national and state historic landmark. The historic museum houses his office, an exact replica of the Speaker’s office at the U.S. Capitol. The Rayburn Museum’s mission is to preserve and exhibit photographs, cartoons, documents, paintings, sculptures, and artifacts documenting Rayburn’s life and to educate the public about one of the most significant political figures in Texas and American history.

Dr. Patrick Cox of Wimberley, Texas in an award-winning and acclaimed historian, author and conservationist. A sixth generation Texan, he resides in Wimberley, Texas and is President of Patrick Cox Consultants, LLC. His firm specializes in historical research, writing projects and oral histories for individuals, corporations, public agencies and nonprofit organizations.

 

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April 24: Thomas Brackett Reed (1839-1902) – House Speaker From Maine Known For “Reed’s Rules” – Guest Essayists: Joseph Postell & Samuel Postell

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Once upon a time the House of Representatives was dominated by party leaders, especially the Speaker of the House.  The Speaker had extensive power to set the agenda and extensive tools to enforce that agenda.  While every representative in the House was elected by a distinct group of constituents, the majority was united in pursuing a common goal thanks to this leadership.

The man who was most responsible for this party organization in Congress was Thomas Brackett Reed. Sometimes called “Czar Reed” because of his immense power, he was primarily responsible for the implementation of the “Reed Rules” adopted in 1890.

A Republican from Maine, Reed was Speaker of the House of Representatives from 1889-1891 and again from 1895-1899.  He was known for his quick wit in legislative debates and his understanding and deployment of parliamentary procedure.  During one legislative debate, a Democrat invoked Henry Clay’s quote that he would rather be right than be president.  Reed replied, “The gentleman needn’t worry. He will never be either.”  Henry Cabot Lodge later called Reed “the finest, most effective debater that I have ever seen or heard.”

Reed approached the rules of the House of Representatives with a simple, fundamental principle in mind.  “The best system,” as he put it, “is to have one party govern and the other party watch.”  And this system required two things: a strong, unified, cohesive set of parties, and procedures that allowed the majority to rule rather than be delayed continually by the minority.

Upon being narrowly elected Speaker over William McKinley, Reed set out to implement this system in the House.  When Reed gained the gavel, the House did almost nothing on an average day. Through the use of dilatory motions and tactics (uses of parliamentary procedure to delay the majority from getting things done) Democrats in the House were able to obstruct the Republican Party prior to Reed’s speakership.

One of these tactics was the “disappearing quorum.”  Because the House must have a quorum to conduct business, the Democrats who were in the minority would frequently object that a quorum was lacking.  In response, the House would have to call the roll, which caused considerable delay.  In addition to the delay, the rules of the House stated that if a person did not respond, they would not be counted as present.  Therefore, Democrats in the minority would simply refuse to answer the roll call, making the quorum “disappear.”

The disappearing quorum was Reed’s first target.  In January of 1890, facing a disappearing quorum over a contested election, Reed ordered the House Clerk to record Democrats not responding as present. In response, many Democrats scrambled under their desks to hide from the Clerk, and they objected vigorously to Reed’s change.  Reed ordered everyone in the room to be counted, and after several days, his decisions were upheld and the disappearing quorum was over.

Reed’s rules changes put the majority, acting through the Speaker as its leader, firmly in control of the House.  The Reed Rules limited the use of dilatory tactics, lowered quorum requirements, and put the majority in charge of considering and amending legislation.  Reed explained the rationale for these changes: “The object of a parliamentary body is action, and not stoppage of action.  Hence, if any member or set of members undertakes to oppose the orderly progress of business…it is the right of the majority to refuse to have those motions entertained, and to cause the public business to proceed.”

The Speaker’s powers had also grown during the late 19th Century, so that the Speaker was able to use his power, combined with the majority’s power to act, to exert tremendous control over the House.  Three of the Speaker’s powers, in particular, were critical: (1) the power to appoint all members and chairs of committees, (2) the power of recognition, which allowed him to recognize members wishing to speak on the floor of the House, and (3) the chairmanship of the Rules Committee, which was nearly the only way that a bill could actually reach the floor of the House for an up-or-down vote.

At the time, many people objected to the accumulation of power in the majority, and in the majority party leadership.  They called Speakers “czars” and tyrants.  The New York Times ran headlines such as: “Bolder in his Tyranny: Heaping Fresh Indignity on the Minority: Reed Confirmed as Dictator of the House – Refusing Even to Recognize the Democrats.”  But Reed defended these changes as necessary reforms to allow the majority party, which received its powers from the people, to implement the laws that the people desired.

There were many advantages to the Reed Rules.  They promoted party accountability, which meant that the people could be confident that if they gave one party or the other a majority in the House, legislation would follow.  In addition, power stayed with Congress, rather than shifting over to the President, because the House set the legislative agenda instead of waiting for the President to suggest which bills should be passed.

Today’s Congress accomplishes a lot less than the one over which Reed presided because party leaders no longer have the powers that Reed created.  Majority party cohesion has been undermined, and the leaders of the majority party are increasingly incapable of advancing necessary reforms.  As a result, the people increasingly look to the President.  Studying Reed’s vision for the House of Representatives reveals another possibility: with stronger parties, Congress can maintain its own authority, and accomplish the business of the people more efficiently, than it does today.  Reed and his rules illustrate a potential solution for the disappearing role of Congress in contemporary American politics.

Joseph Postell is Assistant Professor of Political Science at the University of Colorado-Colorado Springs.  He is the author of the forthcoming book Bureaucracy in America: The Administrative State’s Challenge to Constitutional Government.  He is also the editor of Rediscovering Political Economy and Toward an American Conservatism: Constitutional Conservatism during the Progressive Era. Follow him on Twitter @JoePostell.

Samuel Postell is a Ph.D. student at the University of Dallas.

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April 23: James G. Blaine (1830-1893) – House Speaker & Senate Member From Maine, Secretary Of State, Presidential Candidate – Guest Essayist: Daniel A. Cotter

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The Great Debates- James Blaine (1830- 1893)

James G. Blaine was a politician from Maine who first served in the Maine House of Representatives and then moved to the federal stage, where he became Speaker of the United States House of Representatives, a United States Senator, Secretary of State and Republican nominee for President.  Nicknamed “the Magnetic Man,” Blaine was one of the leaders of the Republican Party during the late 19th Century and one of the great debaters.

Early Life and Rise in Politics

Blaine was born in Western Pennsylvania.  His father was a Whig party supporter and his great grandfather was Ephraim Blaine, who served as a Commissary-General under General Washington.  Blaine’s mother was Irish Catholic and Blaine’s parents brought their daughters up Catholic and their sons, including Blaine, Presbyterian.

Blaine enrolled in Washington College (now Washington & Jefferson College) at the age of thirteen, graduating four years later near the top of his class.  Blaine considered attending law school but decided to get a job.  He was hired at Western Military Institute as a professor of math and ancient languages, and married a teacher, Harriet Stanwood, on June 30, 1850.  In 1852, Blaine took a job at the Pennsylvania Institution for the Instruction of the Blind (now Overbrook School for the Blind).  In 1853, Blaine left teaching to become editor and co-owner of the Kennebec Journal, a strong supporter of the Whigs.  Upon that party’s demise, Blaine turned his attention to the newly formed Republican Party.

In 1856, Blaine was elected to the first Republican National Committee.  In 1858, Blaine made his first run for an elected position, winning his race for the Maine House of Representatives and winning each of his reelection efforts in 1859, 1860 and 1861, winning a healthy majority of the vote.  In 1859, Blaine also became chairman of the Maine Republican state committee.  In 1861 and 1862, Blaine was elected Speaker of the Maine House of Representatives.

Congressional Work

In 1862, Blaine successfully ran for a seat in the United States House of Representatives, one of the few Republicans to win in the midterm elections.  In the 1860s, those elected in an even year began their actual congressional duties the following December.  In his first term, Blaine was relatively quiet.  Blaine advocated for the commutation provision contained in the military draft law, and he also made a proposal for a constitutional amendment that would have permitted the government to impost an export tax.

Blaine won reelection in 1864 and that Congress focused primarily on Reconstruction.  Blaine took the position that the Fourteenth Amendment required three-fourths of the states that had not seceded, losing the argument to the majority who agreed that it required three-fourths of all states.  Blaine did vote in favor of harsh measures on the South but voted against a bill barring Southerners from attending the United States Military Academy.  When the House voted on the impeachment of President Andrew Johnson, Blaine voted in favor of impeaching the president.

Blaine was a strong advocate for the strength of the dollar, rejecting the efforts to issue additional greenbacks to pay interest on pre-war bonds.  In 1869, Blaine was elected Speaker of the House, winning unanimous Republican support.  Blaine was elevated to the position in part because of his strong parliamentary skills and President Ulysses S. Grant thought he was a skillful leader.  Blaine served six years in the Speaker role.  During the 1872 campaign, rumors and accusations were leveled against Blaine that he had received bribes in the Credit Mobilier scandal, charges that were never proven but continued to haunt Blaine.

On February 4, 1875, after much debate and great watering down of its contents, the Civil Rights Act of 1875 passed the House by a vote of 162 to 99.  Speaker Blaine worked hard and cooperated with President Grant to get the act through the House.

In December 1875, Blaine proposed a joint resolution, the Blaine Amendment, to address the separation of church and state by prohibiting direct federal government aid to religiously affiliated educational institutions.  The bill followed a speech by President Grant at a veterans meeting.  The Amendment would have been an amendment to the United States Constitution. Despite Blaine’s efforts, which were successful in the House, by a vote of 180 to 7, the bill failed in the United States Senate by four votes.  It never became law at the federal level, but 38 of the 50 state constitutions in the United States contain versions of the Amendment.

Blaine was considered a favorite for the 1876 Republican presidential nomination, but a scandal involving railroad bonds emerged. Blaine denied the accusations and was believed until some letters were discovered. Blaine was able to reclaim the letters, but the damage was done.  Although Blaine was nominated at the Republican convention and referred to as “an armed warrior, like a plumed knight,” he lost to Rutherford B. Hayes.

In 1876, Blaine was appointed by Maine Governor Seldon Connor to a vacant Senate seat.  Blaine served five years but did not have any significant leadership role.  In 1880, Blaine was again nominated at the convention, but lost to Garfield.  In 1881, President Garfield nominated Blaine to Secretary of State, which he accepted.

Blaine eventually was the Republican nominee in 1884 but lost to Grover Cleveland.

Conclusion

Blaine had influence during Reconstruction in his role as Speaker of the House and was a leader of the newly formed Republican Party for many years but fell into obscurity not long after his death in 1893.  His most lasting contribution might be the Blaine Amendment, which many states adopted, and which laws are now being reviewed as part of the current discussion of school vouchers and impact of the tax reform bill.

Dan Cotter is a partner at Latimer LeVay Fyock LLC and an adjunct professor at The John Marshall Law School, where he teaches SCOTUS Judicial Biographies. He is in the process of writing a book on the seventeen Chief Justices.  He is also a past president of The Chicago Bar Association. The article contains his opinions and is not to be attributed to anyone else.

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April 20: Thomas Hart Benton (1782-1858) – Missouri House & Senate Member – Guest Essayist: Ben Phibbs

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“For the President and the Party: The Loyal Career of Senator Thomas Hart Benton”

“Now you…rascal, I am going to punish you. Defend yourself!”[1] The taunt ferociously barreled into the infant autumn air of Nashville, Tennessee, flying comfortably from the tongue of a notorious brawler with a slender, scarred frame that lamented yet another submission to a fearless ego. The day was September 4, 1813, and young Andrew Jackson had just challenged a man to a duel. But the victim cautiously retreating from an advancing Jackson’s pistol was concealing his own proclivity for mischief. In fact, when he was only 16, he had threatened to shoot a fellow student while attending the University of North Carolina and had even been expelled for stealing from the Philanthropic Society.[2] In the intense street battle that ensued, Jackson sustained a bullet wound in his shoulder that would accompany him to death, and his opponent, after tumbling down a flight of stairs, emerged to break the general’s sword over his knee.[3] But while any man who dared to tussle with Jackson undoubtedly demonstrated a strong will and foolish tenacity, the one who subdued the American Lion in 1813 would later distinguish himself as an even stronger man. For, anyone who selflessly relinquishes prejudice to free himself for an unshakable defense of his former enemy against the advances of the Bank, the censure of the Senate, and even the fragility of his legacy, is truly called loyal. Senator Thomas Hart Benton was loyal.

Benton’s thirty years in the Senate testify to his unshakable devotion to President Jackson; not even two terms into his career, Benton was confronted by one of the most infamous constitutional debates in the nation’s history: the bank battle. President Jackson hated the national bank, for, since its establishment in 1791, Alexander Hamilton’s creation had morphed into a financial control center for the nation’s available credit. Rallying his base, Jackson determined to halt Congress’s effort to re-charter the bank, asserting the monopolistic tendencies of the “hydra-headed monster of corruption,” and the superiority of hard money (gold and silver coins) over paper currency.[4] The battle, however, would be uphill. In 1819, the Supreme Court had declared the bank to be constitutional; furthermore, the bank directors boasted powerful allies in the Republican Party, including Henry Clay and Daniel Webster. Aware of the mounting opposition from such senators of the North, Senator Benton, the faithful Democrat and first senator of Missouri, resolved to aid the president.

With a thundering voice, Benton protested the renewal of the charter through Jackson’s bipartite stance. First, he declared that the bank was “an institution too great and powerful to be tolerated in a government of free and equal laws,”[5] reflecting the Western skepticism of the Democratic Party toward the powerful business practices of the North. As a recent immigrant to the West, Benton believed that the power of the purse, which affords extensive influence over public loans, should not be concentrated in a body disparate from the people, lest the temptations of collusion and favors should “aggravate the inequality of fortunes” and injure the “laboring classes.”[6] Second, he warned against the dangers of paper currency, insisting that “gold and silver is the best currency for the republic.”[7] The bank’s “unlimited supplies of paper,” he contended, exacerbated the debt, and its fluctuations had the capability to “make and break fortunes.”[8] In fact, Benton’s defense of hard money soon earned him the nickname, “Old Bullion.”[9] Old Hickory considered Benton a leader in the Senate and beckoned him to regularly visit the White House to provide detailed accounts of the debates.[10] Indeed, Benton was the voice of Jackson’s party. His concern for the local banks and state governments, particularly in the South and West, appealed to a democratic ethos. Benton’s loyal defense of the masses against the conniving few represented in Congress what Jackson was in the White House. Strengthened by Benton’s alliance, and the popular sentiments which he represented, Jackson vetoed the re-charter bill in an unprecedented constitutional stroke.

The ripe constitutional question provoked by Jackson’s veto invites the scrupulous attention of historians; indeed, Jackson’s purely political strike upset the understanding of the executive’s veto as a constitutional check, not a partisan strongarm. However, the bank veto lamentably overshadows a suspenseful scene in the final months of Jackson’s presidency—one in which Senator Benton was the star. Two years after Jackson denied the re-charter of the national bank, he unilaterally determined to slay the “hydra-headed monster” once and for all by removing all of its deposits and redistributing them to state banks. Predictably, Jackson’s enemies in the Senate were enraged at his rash decision, and under the leadership of Senator Clay, officially censured the president for his act. Now Benton, having proved himself loyal during the bank battle, not only viewed the Senate’s condemnation of Jackson as retaliation to the veto, but also as an affront to Jackson himself in the final year of his public service. So then, determined once again to defend both the policies and the honor of his party leader, Benton confidently rose, surrounded by the piercing glares of Whig men, and proposed a resolution to expunge the censure of President Jackson from the record.

Benton eloquently supported his resolution on two fronts. First, the Missouri senator attacked the legality of the censure, claiming that it was “illegal and unjust.” Benton reminded his colleagues that any criminal charge against the president was prescribed by the Constitution to originate in the House and that, by avoiding the impeachment process, the Senate had condemned the president without a fair trial.[11] Second, and more importantly, Benton built a constructive case for the reputation of President Jackson. He chronicled the successes of the ambitious president’s administration, touting peace in foreign policy and financial security in domestic policy. Truly, Jackson had assured that merchants were not again robbed, intimidated, or impressed by foreign powers on the sea and had kept the debt and taxes low, allowing domestic industry to thrive and causing Benton to conclude, “At home and abroad, the impress of his genius and of his character is felt.”[12] For his defense, Benton was met with a furious mob of opponents. In fact, during the proceedings, the Bank men and other enemies of Jackson collected in the galleries directly above Benton’s head so that some of his friends even sent for guns.[13] Nevertheless, the untried Benton stood, advancing the “ball” that “the people have taken…up and rolled…forward.”[14] For it was the people whom Benton had in mind when he rose to defend the president. Indeed, that is why he supported Jackson. Benton overcame the bitterness of the duel because Jackson bolstered the popular voice with his achievements, including his bank veto. So then, when he saw that those achievements were in danger, Benton resolved to loyally demonstrate his faith in the credibility of Jackson’s democratic ideals. The president embodied the people; thus, by defending the president, Benton defended a movement that transcended one man.

Senator Benton, in two dramatic showdowns, exemplified great loyalty for President Jackson and for the Democratic Party movement. However, Benton did not cease his devotion when the American Lion retired. Rather, the aging senator understood that the legacies of great men are fragile things, subject to defamation and even abandonment if not vigorously protected. In fact, the threat to Jackson’s memory in the final days of his presidency taught Benton that the democratic ideals which his party leader espoused must outlive the president himself. For this reason, Old Bullion spent 14 more years as a senator, seeking ways to more deeply entrench the popular roots of Jackson’s presidency. He decided to work upon a foundation that he had already established from the beginning of his career in Washington: the facilitation of westward expansion.

As an immigrant to the newly annexed state of Missouri, Benton is perhaps best remembered for his energetic advocacy of westward expansion and the “manifest destiny” of the United States. He had developed this enthusiasm early in his public career, and it never waned until his retirement. His first objective had been to ensure that eager settlers were able to purchase land cheaply—a democratic virtue—which he accomplished through supporting pre-emption and graduation. Pre-emption was designed to protect the claims of “squatters,” those desiring to settle a piece of land, from “speculators,” those who wanted to purchase the land without settling it[15]; graduation stipulated that the price of land would gradually decrease “according to actual valuation,” ensuring that settlers did not pay more for less quality.[16] Benton’s greatest achievement, however, was the negotiation of the Oregon territory, through which he demonstrated a final measure of loyalty to president and party. Jackson, Benton, and the Democrats preached manifest destiny, the divinely ordained duty of the United States to expand its influence to the Pacific Ocean. And while Jackson did not witness its fulfillment, Benton ensured that the president’s ambition was carried on through “Young Hickory,”[17] President James K. Polk. Working closely with the president, Benton assured him that the rash demands of the radicals, who were prepared to violently confiscate the 54th parallel from Britain, did not upset the delicate negotiations process.[18] Carefully counting his support in the Senate, Benton stood upon the 49th parallel, and, along with 40 of his colleagues, advised the president to reject the radicals and sign the treaty. Of course, “It was a new thing under the sun to see the senator daily assailed”[19] for his position; nevertheless, Benton retired confidently, knowing that the Jacksonian democracy which he had defended for thirty years would reach from sea to shining sea.

During the furious debate regarding President Jackson’s veto, Senator Clay charged that Benton had preserved an “adjourned question of veracity” between himself and the president. Benton, recalling the duel, replied, “We fought, sir; and we fought, I hope, like men. When the explosion was over, there remained no ill will, on either side…If there [had], a gulf would have separated us as deep as hell.”[20] Benton, like Jackson, was a fighter. If he desired, his heart could have harbored an unquenchable vengeance and bitterness toward the president. However, Benton’s thirty years in the Senate testify to his even stronger desire to satisfy his more noble convictions. He understood that Jackson was the charismatic voice of the people who exhibited a Jeffersonian trust in their virtue and that any personal prejudice wielded against him would only suspend the accomplishment of a democratic agenda. In this way, Senator Benton surrendered his pride to loyalty, and when the Bank, the censure of the Senate, and the passage of time threatened President Jackson, Benton fought back with the same intensity that he exerted in Nashville decades ago. To Benton, an affront to Jackson was an affront to the people whom he trusted to govern rightly. Sadly, when he departed from this loyalty on the question of slavery, his constituents rejected his sixth term.[21] However, as a true delegate, Benton could still write near the end of his life, “I have seen the capacity of the people for self-government tried at many points, and always found equal to the demands of the occasion.”[22]

Ben Phibbs, winner of Constituting America’s “We The Future” Contest for Best Essay, is a 18-year old homeschool senior from North Carolina who plans to attend Patrick Henry College in preparation for a career in constitutional law. Inspired by his parents to revere the treasured tradition of American Republicanism, Ben has, from a young age, admired the rich history of the Founding and laudable structure of the Constitution. For enrichment and service, Ben participates in debate and moot court and leads his church youth band. 

[1] Jon Meacham, American Lion: Andrew Jackson in the White House. (New York: Random House, 2008), 29-30.

[2] https://shsmo.org/historicmissourians/name/b/bentonsenator/

[3] http://www.americanheritage.com/content/%E2%80%9Cnow-defend-yourself-you-damned-rascal%E2%80%9D

[4] George Tindall and David Shi, America: A Narrative History. (New York: WW Norton and Co., 2013), 345-46.

[5] Thomas H. Benton, Thirty Years’ View Vol.1. (Project Gutenberg Ebook, 2014), 191.

[6] Ibid, 193.

[7] Ibid, 187.

[8] Ibid, 193.

[9] https://shsmo.org/historicmissourians/name/b/bentonsenator/

[10] Meacham, 278.

[11] Benton, 532.

[12] Ibid, 722-23.

[13] Meacham, 336.

[14] Benton, 727.

[15] Paul Johnson, A History of the American People. (New York: Harper Collins, 1997), 292.

[16] Donald Cole, Martin Van Buren and the Political System. (Princeton: Princeton University Press, 1984), 327.

[17] Tindall and Shi, 442.

[18] Thomas Benton, Thirty Years’ View Vol.2. (Project Gutenberg Ebook: 2014), 675.

[19] Ibid, 677.

[20] Thirty Years’ View Vol.1., 264.

[21] https://shsmo.org/historicmissourians/name/b/bentonsenator/

[22] Thirty Years’ View Vol.2., 777.

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April 19: Daniel Webster (1782-1852) – Secretary Of State, New Hampshire House & Senate Member, Known As “The Great Orator,” Part 2 – Guest Essayist: Joerg Knipprath

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Webster’s fame as a constitutional lawyer, orator, and political leader was enhanced by his arguments in other cases. In one, Gibbons v. Ogden (1824), Webster represented Thomas Gibbons, who operated a ferry boat under a federal license. Webster argued that Congress had exclusive power over interstate commerce. While Marshall stopped short of Webster’s position, he interpreted the federal power broadly and agreed that Congress could reach the internal commerce of states. Again, as in McCulloch, a state law was found unconstitutional as an infringement on federal power.

In Dartmouth College v. Woodward (1819), Webster represented his alma mater against the attempt by New Hampshire to revoke its charter as a private institution and turn it into a public entity. This time, there was no direct national government interest at stake. Still, Marshall’s opinion, that the state’s action violated the Contracts Clause of the Constitution by impairing the obligations and vested rights under the existing charter, was yet another restriction on state power. Webster’s impassioned advocacy for the protection of rights in property against legislative infringement fit his belief that political participation must be strongly tied to property ownership. Thus, in the Massachusetts constitutional convention of 1820, Webster argued, albeit unsuccessfully, against eliminating property qualifications for voters.

In yet another famous case, Luther v. Borden (1851), Webster represented Luther Borden, a state militia officer who had searched the house of Martin Luther, a leader of an abortive new government for Rhode Island. That state’s colonial charter operated as its constitution even after independence. Due to popular dissatisfaction in the 1840s with the charter’s restrictive property qualifications for voting and the malapportionment of the legislature, a movement under the leadership of Thomas Dorr sought to replace the charter by appeal to the people acting in convention. The movement was initially peaceful, and its new constitution was approved in a popular vote. However, eventually an armed clash occurred between forces allied with the rival “governments,” which the old charter militia won.

The Supreme Court was called on to decide which was the state’s legitimate government. Chief Justice Roger Taney demurred, opining that the Constitution’s command that the United States shall guarantee to each state a republican form of government presented a political question that could not be decided by a court. Of considerable public interest were the two sides’ lengthy arguments. Luther’s attorneys embraced the constitutional view of James Madison and others during the ratification debates over the Constitution that the sovereign people had an unrestricted right to change their constitution at any time, for any reason, and by any (peaceful) means. Webster agreed with this principle as a theoretical proposition only. Ever fearful of revolution, he insisted that such fundamental change could only come through the prescribed means in the state’s constitution or, if none existed, through action by the constituted state government, in this case the old charter government.

His argument in that case paralleled his position against nullification. A single state could not nullify federal law; certainly it could not secede. Therein lay revolution. A dissatisfied state’s recourse against federal power was to follow the procedures set out in the Constitution and persuade the other states to require Congress to call a constitutional convention. There remained, Webster acknowledged, the ultimate right to remove by whatever means a tyrannical government; but this was a right of the American people, not of a particular state government.

Near the end of Webster’s political career occurred yet another spasm in American politics over slavery. In the debate over the Compromise of 1850, crafted by Clay and pushed through the Senate by Stephen Douglas of Illinois, the ailing Calhoun had his speech in opposition to the Compromise read to his colleagues. Three days later, Webster spoke in support of the measure. He began, “I wish to speak today not as a Massachusetts man, nor as a northern man, but as an American ….” He dismissed the very notion of “peaceful secession” advocated by Calhoun. Secession was revolution, and revolution is violent. However, despite his personal opposition to slavery, he criticized the abolitionists and acknowledged the South’s right to have the federal fugitive slave law diligently enforced. This aroused a wave of opposition to him. He resigned his Senate seat within a few months to become, once more, Secretary of State.

During his two-year stint as Secretary of State, he vigorously enforced the new Fugitive Slave Law. His final campaign for President failed at the Whig Party convention. By then, he was also increasingly debilitated from cirrhosis of the liver. He never saw the result of the election, because he died in October, 1852, the immediate cause being head injury suffered from falling off a horse.

Webster’s legacy as a “Union” man is deserved. Still, as a successful politician, his positions changed dramatically over time and, unsurprisingly, tracked the material interests of his constituents. Technological innovations, structural changes in economic relations, settlement of new lands, and the need to assimilate diverse ethnic and religious immigrants all favored development of a national ethos. New England’s and the North’s commercial and industrial rise aligned with that development. Still, Webster’s speeches helped create the political framework for these amorphous forces, and his flair for oratory made this framework intellectually and emotionally accessible to the people. After the nullification debates, in particular, “Union” was no longer defended as just a useful arrangement to assure liberty from foreign domination and to promote harmonious interaction among state sovereignties. It became, instead, the idea of the American republic made real.

There is one more noteworthy point. Despite Webster’s inclination toward political order, his innate conservatism also made him cognizant of human fallibility and skeptical of those who would exercise political power. In a speech in 1837, he issued a warning free citizens must never forget, “There are men, in all ages, who mean to exercise power usefully; but who mean to exercise it. They mean to govern well; but they mean to govern. They promise to be kind masters; but they mean to be masters.”

An expert on constitutional law, and member of the Southwestern Law School faculty, Professor Joerg W. Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. He has also spoken on business law and contemporary constitutional issues before professional and community forums, and serves as a Constituting America Fellow. Read more from Professor Knipprath at: http://www.tokenconservative.com/.

 

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April 18: Daniel Webster (1782-1852) – Secretary Of State, New Hampshire House & Senate Member, Known As “The Great Orator,” Part 1 – Guest Essayist: Joerg Knipprath

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Daniel Webster, alongside Henry Clay and John C. Calhoun, was a member of the “Great Triumvirate,” that remarkable group of speakers whose grand and widely-circulated speeches enlivened debates in the Senate and electrified the American people. Webster, the “Great Orator,” in the words of the historian Samuel Eliot Morison, “carried to perfection the dramatic, rotund style of oratory that America then loved.” Webster is primarily known for his role in the Senate during the tumultuous debates over the nullification controversy, the Texas annexation and resulting Mexican War, and the emerging crisis over slavery and the Compromise of 1850. However, he also served as Secretary of State under Presidents William Henry Harrison and John Tyler, and, subsequently, under President Millard Fillmore. He ran unsuccessfully for the Whig Party’s nomination for President in 1836, 1848, and 1852. Of more lasting practical effect even than his Senate speeches were Webster’s numerous appearances as an advocate in great constitutional cases before the Supreme Court.

Webster was born in 1782 in New Hampshire. Through his parents, his education at the Phillips Exeter Academy and Dartmouth College, and his association with the lawyers for whom he clerked, he was steeped in an upbringing that admired Federalist republicanism. That adherence to Federalist principles has often been used to portray Webster as a “nationalist,” a point that he himself used to political advantage, though he called himself a “Union” man. Yet, it is more illuminating to explain Webster as a politician dedicated to the political and economic interests of his section, New England. As those interests changed, so did the political program of the Federalist Party and its eventual successor, the Whigs. And so did Webster. He “evolved” from general skepticism about policies that strengthened national sovereignty against state powers in his tenures in the House of Representatives between 1813 and 1817 (for New Hampshire) and 1823 and 1827 (for Massachusetts) to ringing endorsements of such policies after entering the Senate in 1827. As in a mirror, one sees Webster’s frequent nemesis, Calhoun, move contemporaneously in the opposite direction, from ardent nationalist to foremost theoretician of state sovereignty.

Thus, in 1814, Webster could rail against the abortive proposal by Secretary of War James Monroe to draft 100,000 men to shore up the army during the militarily adverse and financially calamitous War of 1812:

“The operation of measures thus unconstitutional & illegal ought to be prevented, by a resort to other measures which are both constitutional & legal. It will be the solemn duty of the State Government to protect their own authority over their own Militia, & to interpose between their citizens and arbitrary power. These are among the objects for which the State Governments exist; & their highest obligation binds them to the preservation of their own rights & the liberties of their people….Both [my constituents] and myself live under a Constitution which teaches us, that ‘the doctrine of non-resistance against arbitrary power & oppression, is absurd, slavish, & destructive of the good & happiness of mankind.’ With the same earnestness with which I now exhort you to forebear from these measures, I shall exhort them to exercise their unquestionable right of providing for the security of their own liberties.”

This is a far cry from his famous second reply to Senator Robert Hayne in 1830 on the occasion of the “Great Debate” over South Carolina’s nullification of the Tariff of 1828. There, Webster declared, “Liberty and Union, now and forever, one and inseparable!” It was Hayne who on that later occasion appeared to recall the Webster of 1814, with “Liberty—the Constitution—Union.”

Six days after that 1814 speech, the Hartford Convention met. While its final product did not call for immediate secession by New England over the economic difficulties caused by “Mr. Madison’s War,” the topic was discussed and tabled for the future. Webster did not attend that gathering, but had raised secession in his Rockingham Memorial, a remonstrance against the War of 1812 sent to Madison by a state convention of Federalists. The Memorial did not directly urge secession but threatened, “If a separation of the states shall ever take place, it will be on some occasion, when one portion of the country undertakes to control, to regulate and to sacrifice the interest of another.” The Calhoun of the 1830s might have said this with more systematic theoretical grounding, but he would heartily concur with the message.

In similar manner, Webster opposed the tariff of 1816 as being not for the sound and constitutional purpose of raising revenue, but for the improper object of protection of industry. He likewise opposed the tariff of 1824. Yet, by 1828, with the national debt dwindling, he supported the “Tariff of Abominations,” because it protected New England’s textile industry. By 1833, he even opposed Henry Clay’s proposed tariff reduction, because to compromise was to embolden Southerners to threaten nullification and disunion. Perhaps in self-reflection, Webster declared, in another context, “Inconsistencies of opinion, arising from changes of circumstances, are often justifiable.” Calhoun, meanwhile, had supported the 1816 tariff because, he claimed, it was a constitutional revenue measure, not a protectionist one. By 1828, Calhoun opposed the tariff because it hurt the South economically.

The early Webster also opposed Henry Clay’s federally-financed “American System” of internal improvements to develop settlement of the West (which Calhoun initially supported). Once again, by 1828, Webster supported Clay’s plans, with Calhoun now opposed.

One area of great policy dispute during the first half-century of the Republic was the congressional chartering of the Bank of the United States. In contrast to his “flexibility” in other matters, Webster was steadfast regarding the Bank. He was a “sound money man,” who eulogized Alexander Hamilton for his vision about the First Bank, chartered in 1791, and the stability it brought to American finance and the public credit: “He smote the rock of the national resources, and abundant streams of revenue gushed forth. He touched the dead corpse of Public Credit, and it sprung upon its feet.”

To restore that stability after the humbling experience of the War of 1812, Webster supported Calhoun’s initiatives to charter the Second Bank in 1816 and Clay’s move to re-charter it in 1832. He also vigorously opposed Jackson’s anti-Bank policies, not just because they were Jackson’s as much as he feared the economic dangers from irresponsible issuance of paper money by undisciplined local banks. “Of all the contrivances for cheating the laboring classes of mankind, none has been more effective than that which deludes them with paper money,” he charged during the debate on re-chartering the Second Bank. Contemplating the demise of the Second Bank following Jackson’s veto of the re-charter bill, Webster mourned, “We are in danger of being overwhelmed with irredeemable paper, mere paper, representing not gold nor silver; no sir, representing nothing but broken promises, bad faith, bankrupt corporations, cheated creditors and a ruined people.” At times, he was branch director, legal counsel on retainer, and advocate in Congress for the Bank. His penchant for luxurious living beyond his means and his financial speculations and gambling habit caused him to be frequently in debt and led to conflicts of interest, not just with the Bank.

His political support for the Bank was felicitously aligned with his constitutional argument in one of the most significant cases about Congressional power, McCulloch v. Maryland in 1819. Webster represented James McCulloch, the branch cashier (a key officer) of the Bank. The Court held that a state tax on a federally-chartered instrumentality was unconstitutional. In a wide-ranging argument, almost entirely adopted point-for-point by Chief Justice John Marshall, Webster claimed broad federal power to enact laws that were useful or convenient to achieve the objectives expressly delegated to Congress in the Constitution. Webster’s argument tracked Hamilton’s in the debate over the constitutionality of the original Bank. It was startlingly different than the constitutional argument about federal power Webster had made five years earlier in his speech against military conscription, “To talk about the unlimited power of the Government over the means to execute its authority, is to hold a language which is true only in regard to despotism. The tyranny of Arbitrary Government consists as much in its means as in its ends … All the means & instruments which a free Government exercises, as well as the ends & objects which it pursues, are to partake of its own essential character, & to be conformed to its genuine spirit.”

An expert on constitutional law, and member of the Southwestern Law School faculty, Professor Joerg W. Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. He has also spoken on business law and contemporary constitutional issues before professional and community forums, and serves as a Constituting America Fellow. Read more from Professor Knipprath at: http://www.tokenconservative.com/.

 

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April 17: John C. Calhoun (1782-1850) – Seventh U.S. Vice President, South Carolina House & Senate Member, Part 2 – Guest Essayist: Joerg Knipprath

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Relying primarily on the Virginia and Kentucky resolutions of 1798 and 1799 against the federal Sedition Act, Calhoun defended the right of a state to interpose itself between its citizens and federal authority and, as Thomas Jefferson had made plain, to nullify the law within its territory. Echoing sentiments that had been expressed by many others since the debates over the ratification of the Constitution, Calhoun posited that the charter was a compact among the states. Addressing the argument that the Constitution had been adopted by the people of the United States, Calhoun pointed out that it had been the people in conventions in their respective states, and that the ratification by the people in one state bound only them. The general government was not a party to the compact, but its creature. Therefore, it could not be the judge of its own powers, whether done through the agency of the Congress, the President, or the Supreme Court. The general government had the character of a joint commission that oversaw and administered the collective interests of the states.

Significantly, Calhoun incorporated the major contribution of 18th century Americans to political theory, the role of the constitutional convention. An act of such foundational character as nullification cannot proceed from mere legislative action. Sovereignty lies in the people, not the government, and an ultimate act of political association or disassociation requires action by them. Since it is not realistic for the people as a whole to gather, such action has to be undertaken by a special body elected and assembled for only that purpose. If the people’s convention votes to nullify the law, the legislature might enact an ordinance of nullification. It is then incumbent on the general government to resolve the conflict peaceably by referring the matter, “as in all similar cases of a contest between one or more of the principals and a joint commission or agency … to the principals themselves,” that is, to a constitutional convention as provided in Article V of the Constitution. If that convention and the subsequent vote of the states supports the nullifying state, fine; if not, that state then, on further reflection, can rescind its nullification or vote to secede from the Union.

It is important to note that a state has no right to secede simply because it changed its mind about belonging to the Union. The Union is more than a contract, it is a political partnership with an existence outside the individual partners. However, if there has been an alteration of the compact, to which the state has not consented, “constitutional secession” is permitted. That was the extent to which Calhoun justified secession. Beyond that lay revolution. As historian Marco Bassani has explained, at that point, “secession would not be impossible, but would amount to a Lockean appeal to Heaven; such cases would arise, not from the nature of the Union, but from the right of self-government of all communities of free human beings. In essence, a ‘pre-political’ right of secession exists, shading over into the right of revolution; there are no significant differences on this point between Webster, Calhoun, Jackson, and the entire American tradition. Institutionalization of power does not eliminate the people’s right to rebel against a despotic government.” Webster himself characterized the address as “the ablest and most plausible, and therefore the most dangerous vindication” of the nullifiers’ argument.

Ultimately, the political application of Calhoun’s nullification theory played itself out in the Henry Clay-crafted compromise over the tariff and the political theater between President Andrew Jackson and the South Carolina state government. The South Carolina convention’s nullification vote over the Tariff of Abominations was followed by Jackson’s threat to use the military to insure compliance with federal law as authorized in the Force Act, which was followed by the convention’s rescission of its tariff nullification after Clay’s compromise, which was followed by its nullification of the Force Act. The tariff issue was allayed, but many understood that to be merely palliation of a symptom, not cure of the ailment. Jackson wrote that the real issue was disunion and that the next symptom would be the struggle over slavery. Calhoun, the moderate, and Rhett, the fire-eater, concurred.

After service as Senator from 1832 to 1844, an abortive campaign for President in 1844, and an interlude as Secretary of State from 1844 to 1845, Calhoun returned to the Senate from 1845 until his death in 1850. He devoted considerable time to further systematic development of his political theory in the Disquisition on Government and the Discourse on the Constitution and Government of the United States. As other political theorists had done, Plato and Cicero coming to mind, Calhoun delved into theoretical exploration of the nature of man and society in the former and into more concrete and empirical application of his theory to American political experience in the latter.

As death approached, Calhoun roused himself once more to a defense of his culture and class. He wrote a blistering speech against Henry Clay’s Compromise of 1850 and the admission of California. Too frail to deliver the speech himself, his friend Senator James Mason of Virginia read it for him. The valedictory’s topic was somber and brooding, a rhetorical reflection of Calhoun’s physical appearance portrayed in contemporary drawings and photos: The stronger (North) would not be deterred from its subjugation of the minority (South); compromise was no longer possible; secession was in the air. He assured the North, “[W]e shall know what to do, when you reduce the question to submission or resistance.” To a friend, he predicted that disunion would follow within twelve years.

Calhoun died shortly thereafter, on March 31, 1850. Because of his strong defense of slavery–he went so far as to describe it as a positive good–and the historical current of nationalism over the past two centuries, Calhoun’s works have not resonated in public debate. Still, his has been described as the only authentic and systematic American political theory, a sentiment that readers of Senator John Taylor of Caroline’s examination of American agrarian republicanism might challenge. It is fair to say, however, that Calhoun’s approach to consent of the governed, as expressed through concurrent majorities of the whole and of its affected constituent minorities, presents a relevant model for peaceful resolution of fundamental political questions that well preserves both “Liberty and Union” in a large, diverse, and divided country.

An expert on constitutional law, and member of the Southwestern Law School faculty, Professor Joerg W. Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. He has also spoken on business law and contemporary constitutional issues before professional and community forums, and serves as a Constituting America Fellow. Read more from Professor Knipprath at: http://www.tokenconservative.com/.

 

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April 16: John C. Calhoun (1782-1850) – Seventh U.S. Vice President, South Carolina House & Senate Member, Part 1 – Guest Essayist: Joerg Knipprath

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For nearly the first half of the nineteenth century, three men dominated the debates over the great issues of the day. They were the “Great Triumvirate,” Henry Clay of Kentucky, Daniel Webster of Massachusetts, and John C. Calhoun of South Carolina. Each joined the Congress between 1806 and 1813, each served in the Cabinet as Secretary of State, and each indulged his ambition to become President in at least three campaigns. Clay came closest, with three party nominations. Calhoun, however, gained the highest honor. He served as Vice-President for nearly eight years with two different Presidents, John Quincy Adams and Andrew Jackson, one of only two men to do so.

John C. Calhoun was born on March 18, 1782, in the South Carolina Piedmont. After preliminary schooling, he attended Yale University, graduating in 1802. He spent the following year studying law at the then-preeminent law school in the United States, the pioneering Litchfield Academy of Judge Tapping Reeve in Connecticut. Upon returning to South Carolina, Calhoun practiced law in Charleston. As were several other Southern states, South Carolina was divided politically between east and west, the Tidewater and the Piedmont, with the former inclined towards Federalism and the latter towards Jeffersonian Republicanism. Because of political manipulation, the eastern minority controlled the state in its early years, and South Carolina had approved the Constitution by a 2-1 margin, despite the losing side representing a majority of the state’s population. Charleston was as Federalist and nationalist as any city in the North. However, times were changing. Within a generation, the state would become the leader of Southern sectionalism and, after another generation, the first to secede from the Union in 1860.

The state’s political and constitutional metamorphosis is reflected in Calhoun’s own philosophic journey. Yet, despite his well-earned reputation as a leading intellectual figure of the “South Carolina Doctrine” regarding the nature of the Union and the rights of the states, Calhoun always seemed to lag behind his state’s political evolution. He was never the firebrand driving the train of revolution, but always the brakeman seeking to slow it down. He was never a committed political partisan, instead wandering from faction to faction and party to party and best described as he saw himself, an independent for whom broader principles were a better guide than fleeting political association. That said, he also used this willing flexibility in political affiliation to maximize his personal standing and that of his state and section.

Calhoun was influenced by the Federalism of Yale’s president, Timothy Dwight, and of Judge Reeve. While it is difficult to assess the extent to which any particular intellectual mentor or personal experience affected Calhoun’s later views, it was there that he first heard systematic defense of the states’ rights doctrine. The Virginia and Kentucky Resolutions of 1798 against the Sedition Act clearly influenced his later doctrinal analysis. But those were events from his youth, whereas he lived the Federalism of his teachers who were reacting against the political revolution of the election of 1800 that saw Jefferson become President and consign the Federalist Party to a diminishing regional status.

Within a few years of his return to South Carolina, he was elected to the state legislature. In 1811 he entered the House of Representatives, where he became a “war hawk” who fervently backed the War of 1812 against Great Britain. That war saw the hardening of states’ rights views among the politically disaffected New England Federalists whose sea-faring and commercial communities were ravaged economically by the British naval blockade. Their politicians, including Daniel Webster, denounced the war and praised their states’ resistance to it. Eventually, their opposition coalesced into the Hartford Convention of 1814, which debated what forms of opposition states might undertake against unconstitutional federal laws. Secession, while not officially sanctioned, was put on the table for future discussion, should lesser measures fail. Calhoun and others later would use the Hartford Convention as a precedent to hurl at Northerners who attacked similar Southern sentiments.

In the meantime, chastened by the disastrous impact the war had on the financial stability of the country, Calhoun supported numerous measures that would have made Alexander Hamilton and other earlier Federalists proud. He introduced the bill to charter the Second Bank of the United States in 1816. He was a strong supporter of House Speaker Henry Clay’s “American System” of internal improvements directed by the federal government, which fit not only the South’s political alliance with the West, but also Calhoun’s (failed) dream to have South Carolina become a textile manufacturing center that would compete with Massachusetts. Most awkward for Calhoun and the South Carolinians for their anti-tariff posture a decade later, Calhoun led the move to enact the tariff of 1816 to pay off the government’s debts and reestablish solid public credit.

His political ambition was soon focused on executive office. Calhoun had been shocked by the generally poor performance of the militia during the War of 1812, as well as by what he perceived as the poor management of the War Department. In 1817, he began his tenure as Secretary of War, in which he supported a strong navy and, again in contrast to traditional republicans, a standing peace-time army. His success boosted his chances for the Presidency, and, in another ironic twist, a group of Northern congressmen placed his name in nomination for that office in 1821. He undertook a more concerted campaign in 1824, which was derailed in part because Southern support went to the more states’ rights oriented William Crawford of Georgia. Indeed, due to his perceived nationalism, Calhoun could not even get the support of his own state’s legislature, which, at that time, still selected presidential electors. Calhoun then turned his sights on the vice-presidency, and the Electoral College overwhelmingly selected him.

It was at that point that Calhoun’s determined nationalism began to give way over the next decade to an equally committed sectional loyalty. South Carolinians, who had suffered severely from the economic depression that followed the Panic of 1819, in increasingly radical sentiments opposed various tariffs enacted in the 1820s. Up-and-coming politicians such as Congressman George McDuffie and state representative Robert Barnwell Rhett (Calhoun’s successor as Senator in 1850 and the leader of what came to be known as the “Fire-Eaters”) campaigned not just for repeal of the tariffs, but for more active opposition to federal power.

The final blow was the massive “Tariff of Abominations” in 1828. Rebuked by other Southern states and unable to get a united front against the measure, South Carolina went on her own. Nullification became a respectable political topic. The most voluble among local politicians went further. Thus, Rhett, emulating Samuel Adams’s rhetoric during the struggle for independence from Britain, sounded the revolutionary clarion: “But if you are doubtful of yourselves–if you are not prepared to follow up your principles wherever they may lead, to their very last consequence–if you love life better than honor,–prefer ease to perilous liberty and glory; awake not! Stir not!–Impotent resistance will add vengeance to your ruin. Live in smiling peace with your insatiable Oppressors, and die with the noble consolation that your submissive patience will survive triumphant your beggary and despair.”

Alarmed at such radicalism, Calhoun anonymously penned his Exposition and Protest against the Tariff of 1828, at the request of leaders of the state legislature. It accepted the constitutional power of the general government to enact tariffs to raise revenue–thereby glibly endorsing Calhoun’s support for the tariff of 1816–but not for protection of local industry. It further set down the basics of Calhoun’s theory of nullification, that a state retained its authority to veto unconstitutional federal laws. While the pamphlet’s authorship soon became known, Calhoun and the state’s senators, Robert Hayne and William Smith, publicly opposed or were non-committal about undertaking nullification. As a result, the movement stalled.

However, the radicals defeated the moderates in South Carolina’s elections in late 1830. Nullification leader James Hamilton was elected governor, and Smith was replaced by the more radical Stephen Miller. Calhoun, struggling to control the anti-tariff movement in the state, published his foundational Fort Hill Address on July 26, 1831. There, he systematically laid out the constitutional case for nullification. Calhoun acknowledged that within its delegated powers, properly exercised, the general government was immune from state interference. However, the same principle applied to the states’ reserved powers, reciprocally immune from ultra vires acts of the general government. The problem was what to do when a conflict arose.

An expert on constitutional law, and member of the Southwestern Law School faculty, Professor Joerg W. Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. He has also spoken on business law and contemporary constitutional issues before professional and community forums, and serves as a Constituting America Fellow. Read more from Professor Knipprath at: http://www.tokenconservative.com/.

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April 13: Henry Clay (1777-1852) – House Speaker, Whig Party Leader, Kentucky Senate Member – Guest Essayist: Sam Postell

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Henry Clay: The Man for a Crisis

Henry Clay led a political career that spanned almost fifty years and was Speaker of the House for almost ten. According to some, Clay was a hero, and to others, he was a villain. For example Abraham Lincoln described Clay as his “Beaux ideal of a statesman”, while Andrew Jackson described him as “the basest, meanest, scoundrel that ever disgraced the image of his god”, and “void of good morals… ambitious and regardless of truth when it comes in the way of his ambition”. Although opinions regarding his character are conflicted, all understood that he shaped Congress in fundamental ways. He was the first to understand that Congress was in need of leadership and order to be considered an important power rather than a mere servant of the president.

Before Clay became speaker he was nominated to fill a vacancy in the Senate. After his second term he decided to leave the Senate and run for election to the U.S. House of Representatives. As he announced his candidacy all other candidates withdrew their names from the ballot.

Before Clay had attended a single session as a Representative in the House, he was elected Speaker on the first ballot. Many representatives in the House were intimated by John Randolph, a Representative from Virginia who “ran roughshod” over the proceedings of the House. He would often bring his hunting dogs into the House, and he would filibuster in order to derail its proceedings. It was said that Randolph “disregards all rules” and Clay’s supporters decided that the Speaker “must be a man who can meet John Randolph on the floor or on the field, for he may have to do both” (Sargent, Public men and Events, I,130).

Henry Clay fulfilled the wishes of the members of the 12th Congress and was reelected Speaker for the next ten years. The clearest demonstration of his promise to enforce, and even manipulate, the rules of the House is his role in the passage of the Missouri Compromise. There were three separate bills to be considered: first, Missouri’s application for statehood as a slave state, second, Maine’s application for statehood as a free state, and third was an amendment prohibiting slavery north of the 36’30’ parallel with the exception of Missouri.

The House at first rejected the bill that tied the three together. Clay decided that he would separate the three bills and attempt to pass each individually. On February 8, 1820, Clay gave an unrecorded speech that lasted over four hours attempting to persuade the Northern abolitionists to pass the compromise in order to quell Southern threats of secession. Although deliberation upon the three bills lasted the entire month of February, on March 2nd each bill was passed individually.

However, Clay’s work was not yet done. John Randolph rose in the House and asked that the vote be reconsidered. Henry Clay announced that it was late and that the motion would be postponed until the following day. The next day Randolph again rose to have the vote reconsidered. Clay ruled him out of order until the routine business had concluded. Meanwhile, Clay signed the Missouri Bill and had the clerk deliver it to the Senate for a vote. When Randolph rose once more Clay announced that the bill could not be retrieved- the vote was final. On March 6th President Monroe signed the Missouri bill. Clay’s role in the passage of the Missouri bill demonstrates a principle that survives to this day: the principle of majority rule and the Speaker’s role in ensuring that the majority cannot be undermined by the actions of a single representative or a faction.

Later in the Senate, Clay endeavored to advance the same principle but with less success. Not only was Henry Clay an actor in the questions of the Missouri Compromise and the War of 1812, but he also played a role in the debate regarding the rechartering of the Bank of the United States. Early in his career he argued that the National Bank was unconstitutional, but after experiencing the difficulties of financing the War of 1812 he began to view it as a necessity. Andrew Jackson claimed that Clay was inconsistent, to which Clay responded in an impassioned speech claiming that “the constitution has not changed… I was at first wrong.”

When the Senate came to vote on the Bank Bill in June of 1841, Clay became upset to see many representatives dragging their heels. Rather than discuss and vote upon the bill, many members of the minority filibustered, speaking on issues not pertaining to the bill. This led Henry Clay to introduce a motion to amend the rules to prevent the minority from delaying the proceedings of the Senate. Many members of the minority party, included John Calhoun and president pro-tempore William King, argued that the minority had the Constitutional right to speak in session, and that any attempt to “gag” members of the minority was unconstitutional. Clay eventually buckled under the pressure of the other members and relented on his motion to change the Senate rules; however, the Bank Bill was finally voted upon and passed the Senate on July 28th.

Not only was Henry Clay the man for a crisis and a controversial figure in his day, but he left his mark on the way that Congress deliberates upon and passes legislation. Clay was the first to understand that Congress was in need of leadership if it were to be understood as an important power of the government rather than a mere servant of the president. Although he was a man of action, his speeches bequeath a rich knowledge of constitutional theory that allow us to appreciate the importance of the rules and orders of the legislature.

Sam Postell is a doctoral candidate in Politics at the University of Dallas.

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April 12: John Quincy Adams (1767-1848) – Sixth U.S. President, Massachusetts House & Senate Member – Guest Essayist: Brian Pawlowski

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While John Quincy Adams was not an exact contemporary of the Founding Fathers he was, in more ways than one, their offspring. Indeed, his bond with the generation of 1776 was familial as well as philosophical. And his sense of duty to that generation, the project they set in motion, and the preservation of the union they birthed was as deeply embedded in his body as the marrow in his bones. Also in his bones was a strong aversion to party politics, a trait John F. Kennedy would later admire in his book Profiles in Courage. Every action of John Quincy’s life revolved around a higher sense of duty and service to country. A prolific diarist, he wrote, “We are sent into this world for some end. It is our duty to discover by close study what this end is and when we once discover it to pursue it with unconquerable perseverance.”[i] One could understand this sentiment coming from a man like John Quincy, a man who had served his country as a diplomat, ambassador, Congressman, Senator, and President of the United States over the course of a public life spanning over 50 years. But John Quincy wrote these words long before he held any post. He was 11. At that age he found himself crossing oceans with his father in pursuit of independence. From his youth to his old age he would, as he later wrote to his children, “Let the uniform principle” of his “life be how to make your talents and your knowledge the most beneficial to your country and most useful to mankind.”[ii]

Perhaps no one in American history served in so many federal posts. John Quincy was first named Minister to the Netherlands by President George Washington and later as Minister to Prussia (Germany) by his father John Adams when he was President. In both capacities he sought to expand America’s trade and loan relationships and created a broad and effective network of diplomats and influencers he would draw upon in the future.

It was during this time abroad that John Quincy married his wife, Louisa Catherine. They would be together the rest of their lives, enduring multiple miscarriages together, the political fray, and prolonged periods of separation. They did not have the marriage of John and Abigail, but then, perhaps no one could. They would have four children together and John Quincy would push them in the same way he was pushed, encouraging his children to be productive members of society. For some of the children the pressure would be too much. Others would rise to their father’s expectations. All, however, benefited from their parent’s love.

Returning to the states after Thomas Jefferson ascended to the Presidency he entered, albeit with a modicum of foreboding, Massachusetts politics and in short order found himself elected Senator. He had been elected as a Federalist, the party of his father, although he preached the doctrine of independent judgement and country before party. When the time came to vote on Jefferson’s Embargo Act, a measure Federalists vehemently opposed, John Quincy supported it. While he knew the act would hurt Massachusetts industry, he felt it served the country well by keeping it out of a war with England America was ill equipped to fight. This endeared him to no one. The Federalists made their disappointment well known and John Quincy resigned his Senate seat early. He did not back down from his decision, however. He steadfastly proclaimed the ills brought on by partisan loyalties which in his mind too often trumped what was best for the country.

John Quincy, it seemed, was headed for the political wilderness. Taking up a professorship in rhetoric at Harvard he devoted himself utterly to the preparation and presentation of his lectures. But his time in the forests was short lived. A man with his experience, judgement, and lineage would not be on the political bench for too long.

James Madison actually offered John Quincy an appointment to the US Supreme Court, but he declined citing his wife’s heath. Still, Madison kept at it and asked him to become Ambassador to Russia. John Quincy accepted and sojourned to St. Petersburg in hopes of establishing a good relationship with Alexander I. While there the War of 1812 between the Americans and British broke out. The result was that John Quincy found himself paired with Henry Clay and others in Belgium negotiating the Treaty of Ghent in 1814 which brought an end to the war. Because of his work on the treaty John Quincy became Minister to Great Britain, the very same post his father had held years before.

James Monroe would also not serve as President without the tapping into the knowledge, experience, and wisdom he saw exhibited by John Quincy and in 1817 named him Secretary of State. Thomas Jefferson, James Madison, and Monroe himself had all served as Secretary of State before going on to become President. The table seemed set for John Quincy.

As Secretary of State John Quincy ushered in an era of almost unprecedented geographic expansion through the Adams-Onis Treaty with Spain which ceded the Floridas to the United States, a joint agreement on the Oregon Territory with Britain, and his clear enunciation of American hegemony in the America’s in what would become known as the Monroe Doctrine.

The Presidency came next. But it would not be achieved with ease. Nor would it be achieved without a deal that essentially doomed any chance John Quincy had of enacting his legislative vision. In addition to John Quincy, contenders for the Presidency in 1824 included Speaker of the House Henry Clay, former Secretary of War John C. Calhoun who would go on to become the spokesman for the South, General Andrew Jackson, and Secretary of the Treasury William Crawford. In the event, none of the candidates received an outright majority and thus the tie had to be broken in the House. While no record of any conversations between John Quincy and Henry Clay survive, Speaker Clay backed him in the House and encouraged others to do the same. A short while later, John Quincy named him Secretary of State. That Clay was qualified for the post did not matter. The politics, however, did. Allegations of a “corrupt bargain” hounded John Quincy throughout his Presidency and destroyed any chance he had of pushing an agenda. John Quincy became the second President in American history up to that point to not win re-election to the highest office in the land. The other had been his father.

Adams seethed but ultimately decided to dedicate the rest of his life to pursuing his love of literature and possibly writing a biography of his father. But this was not to be. For the only time in American history, a former President was headed back into the political arena. Influential members of his Massachusetts congressional district approached him to run for the House of Representatives. Adams agreed.

The story of John Quincy’s House career can be summed up with one word: antislavery. The story of the “gag rule” will be rightly told in another Constituting America essay. Suffice it to say here, however, that Adams had been antislavery his entire life. In Congress his focus on agitating on the slavery question and the Southern response to it served as an opening salvo in what would become the abolitionist movement. While he never became an abolitionist himself he understood the struggle over slavery. Before most others, John Quincy foresaw that conflict was inevitable. In a diary entry in 1820 he wrote,

If the dissolution of the Union must come, let it come from no other cause but this. If slavery be the destined sword in the hand of the destroying angel which is to sever the ties of this Union, the same sword will cut in sunder the bonds of slavery itself. A dissolution of the Union for the cause of slavery would be followed by a servile war in the slave-holding States, combined with a war between the two severed parts of the Union. It seems to me that its result must be the extirpation of slavery from this whole continent; and, calamitous as this course in events in its progress must be, so glorious must be its final issue that, as God shall judge me, I dare not say that that it is not to be desired.

John Quincy served in the House from 1830 to his death, on the floor of the Capitol, in 1848. As William J. Cooper has wonderfully put it, “Adams’ defeat ended one political era and ushered in another. The advent of Andrew Jackson signaled the beginning of a popular politics buttressed by organized, vigorous political parties” which John Quincy had deplored. And perhaps more important, “never again could a presidential contender wear a mantle that had literally been possessed by the Founding Fathers.”[iii] John Quincy’s life had been a testament to what the Founders envisioned and in service to the ideas that emanated from the Revolution they fought so nobly to advance.

Brian Pawlowski was a Lincoln Fellow at the Claremont Institute for the Study of Statesmanship and Political Philosophy, a former Marine Corps intelligence officer, and is currently pursuing a Master’s Degree in American History. 

[i] Fred Kaplan, John Quincy Adams: American Visionary (New York: HarperCollins, 2014), 26.

[ii] William Cooper, The Lost Founding Father: John Quincy Adams and the Transformation of American Politics (New York: Liveright Publishing Corp, 2017), 18.

[iii] Ibid. 258.

 

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April 11: The Great Debates – Civil Rights Act of 1964 – Guest Essayist: Daniel A. Cotter

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On June 11, 1963, President John F. Kennedy issued his Report to the American People on Civil Rights, calling on Congress to pass a civil rights bill to address discrimination and segregation against African Americans.  Kennedy’s civil rights bill included a ban on discrimination in places of public accommodation and tackled segregation in schools, but did not address many other issues affecting African Americans, especially in the South.  Kennedy was assassinated before the bill was approved by Congress.  President Lyndon B. Johnson made passage a priority.

The Congressional Debates

Prior to his televised appearance to discuss his Report, President Kennedy met with Congressional Republicans to discuss the legislation. On June 13, 1968, Senate Minority Leader Everett Dirksen and Senate Majority Leader Mike Mansfield expressed support for Kennedy’s proposal, except for the portion dealing with public accommodations.  President Kennedy submitted his bill as originally drafted to Congress on June 19th.  The House Judiciary Committee discussed the bill and held hearings, adding provisions to the bill to enhance protections.  In addition, the Judiciary Committee added Title III, which authorized the Attorney General to pursue legal remedies.

In late October, Kennedy met with the House leadership to figure out a path to sufficient votes for House passage.  The House Judiciary Committee reported the bill out in November and referred to the Rules Committee, chaired by Virginian Howard W. Smith, a segregationist, who promised that the bill would not emerge from his committee.  On November 22, 1963, President Kennedy was assassinated and LBJ was sworn in as President.  President Johnson supported the bill and used his experiences in the Senate to find ways to ensure passage.

On November 27, 1963, President Johnson made clear his position on passage of the civil rights bill when he made his first joint session of Congress, stating:

“No memorial oration or eulogy could more eloquently honor President Kennedy’s memory than the earliest possible passage of the civil rights bill for which he fought so long.”

In a rare parliamentary procedure, Judiciary Committee Chair Emanuel Celler filed a petition to discharge the bill from the Rules Committee and the premises of Chair Smith.  When the winter recess arrived, the petition was short of required signatures.  Upon return from recess, sensing the strong support in the North for the bill, Smith permitted the bill to pass through his Rules Committee.

President Johnson then navigated the Senate.  The Senate Judiciary Committee Chair James O. East land, a Democrat from Mississippi, strongly opposed the bill.  Senator Mansfield invoked a procedural tool to avoid referral to the Judiciary Committee, reading the bill a second time after it had initially been waived, permitting the bill to reach the Senate floor directly for debate.

On March 30, 1964, the bill came for debate on the Senate floor.  The Southern Bloc implemented a filibuster, led by Senator Richard Russell, a Democrat from Georgia, who stated:

“We will resist to the bitter end any measure of movement which would have a tendency to bring about social equality and intermingling and amalgamation of the races in our states>”

Senator Strom Thurmond, who had set a record filibuster of more than twenty-four hours against the Civil Rights Act of 1957, strongly opposed the bill, stating:

“This is the worst civil-rights package ever presented to the Congress and is reminiscent of the Reconstruction proposals and actions of the radical Republican Congress.”

The filibuster continued for 54 days.  Finally on June 10, 1963, Senator Robert C. Byrd finished his 14 hours, 13 minutes speech.  Senator Russell made final opposition comments, then Senator Dirksen from Illinois spoke for the bill proponents, declaring, “the time has come for equality of opportunity in sharing government, in education, and in employment.  It will not be stayed or denied. It is here!”  During roll call on cloture, Senator Clair Engle from California did not respond verbally, having lost his ability to speak from a brain tumor.  However, he pointed to his eye to affirmatively vote.  Cloture passed, 71 to 29, four more votes than needed for cloture.

The resulting vote on cloture of the filibuster was the first time in the Senate’s history that a filibuster on a civil rights bill had been brought to cloture.

On June 19, the compromise bill passed the Senate, 73-27, and then quickly passed through the House-Senate Conference Committee.  On July 2, 1964, President Johnson signed the law, and the long road to passage was complete.

Despite its historic nature, the Civil Rights Act of 1964 had limited impact at the time of its passage, but has been influential on subsequent civil rights bills and was upheld generally in the Supreme Court decision, Heart of Atlanta Motel v. United States.

Dan Cotter is a partner at Latimer LeVay Fyock LLC and an adjunct professor at The John Marshall Law School, where he teaches SCOTUS Judicial Biographies. He is in the process of writing a book on the seventeen Chief Justices.  He is also a past president of The Chicago Bar Association. The article contains his opinions and is not to be attributed to anyone else.

 

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April 10: Entry Into WWII And The America First Debate, Part 2 – Guest Essayist: James Legee

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At its height, the America First Committee had 800,000 members, with membership concentrated in the Midwest.  Senators Nye (a founding member), Wheeler, and David Walsh (D-MA) were members, as were future Supreme Court Justice Potter Stewart, and businessman and notorious anti-Semite Henry Ford.  One of the chief spokesmen for AFC was famous aviator Charles Lindbergh.  After the murder of his child, Lindbergh left the United States for Great Britain and made frequent visits to Nazi Germany.  A stalwart isolationist, Lindbergh saw in Germany not only a military opponent that would be almost impossible to defeat, but a society in some ways superior to that of America.

Lindbergh wrote in his journal in 1938 that “I did not find real freedom until I came to Europe.  The strange thing is that of all the European countries, I found the most personal freedom in Germany, with England next, and then France.”  Lindbergh was unmoved by the plight of European Jews under the Nazis, even after Kristallnacht.  While certainly anti-Semitism was not a belief of every isolationist, it became an unfortunate hallmark of the movement even as Nazi aggression towards civilians intensified.  In September of 1941, Lindbergh went so far as to insinuate that American Jews in favor of European intervention had the best interest of Jewish Europeans rather than America in mind.

In 1941 Senator Nye, not yet tired of investigations and hearings, launched an inquiry into the role of Hollywood in agitating for war and producing pro-democracy films.  At an AFC rally, Nye called Hollywood “the most gigantic engines of propaganda in existence to rouse war fever in America and plunge the nation to her destruction.” As he listed studio heads, in a dark moment of American history, the audience cried, “Jews!”  Nye went on to claim Hollywood was comprised of refugees from occupied nations and British actors who agitated for American intervention.  His committee called Wendell Willkie, 1940 pro-intervention Republican candidate, who asserted that anti-Nazi films actually reflected the sentiments of the American people and offered witnesses to the committee to testify on Nazi crimes.  Nye’s committee declined, and after several weeks concluded without a report or ever reconvening.  Rather than damage Hollywood, the hearings gave voice to a variety of pro-intervention anti-Nazi activists.

The battle over isolationism and interventionism largely culminated in the fight over Roosevelt’s Lend-Lease program.  1940 saw Roosevelt achieve an unprecedented third term as president, a campaign in which he vowed to attempt to avoid war.  By 1941 public opinion had shifted from isolationism to over 60% of Americans favoring aid to Great Britain.  For isolationists, though, important questions hung around Lend-Lease.  Would American ships transport goods? Would the American Navy protect them?  For some, such as Burton Wheeler, the Lend-Lease act dripped with hypocrisy, “If it is our war we ought to have the courage to go over and fight it.  But it is not our war…”  Wheeler’s most blistering critique came later when he said of Lend-Lease “the New Deal’s ‘Triple A’ foreign policy [would] plow under every fourth American boy … Never before has the United States given to one man [Roosevelt] the power to strip this nation of its defenses.  Never before has a Congress coldly and flatly been asked to abdicate.”

Wheeler wasn’t alone in his disdain for Lend-Lease and the potential excesses granted a single individual.  Senator Arthur Vandenberg, known as an internationalist today, but an isolationist before the war called Lend-Lease “war by proxy.” Congressman Hamilton Fish (R-NY) who had received the Silver Star in WWI said in a speech in March of 1941 that “I do not believe the President has the right to order the convoying of ships into the war zones without the consent of Congress. The use of convoys, on the authority of the President, would be a deliberate attempt to drag us into war, and would make President Roosevelt the foremost repudiator of his word in American history. It would constitute a brazen betrayal of the millions of loyal Americans who had faith in his assurances and plighted word and voted for him. Somewhere between 83 and 90 per cent of the people, according to the various Gallup polls, are opposed to our entrance into war unless attacked.”  Despite this, with public approval, Lend-Lease passed and military material flowed across the Atlantic to Great Britain (with a token amount of aid to Stalin).

On December 4 of 1941 the Chicago Tribune ran details of a leaked top secret war plan, code named Rainbow Five.  Roosevelt, who had pledged not to send American boys to die, was exposed as having drafted a plan that to create aten-million-strong army to confront the Nazis in 1943.  Massachusetts Republican Congressman George Holden Tinkham, who had compared Roosevelt to Hitler and Stalin over the Destroyers for Bases program in 1940 (“there is no difference between his [FDR’s] action from either Hitler, Mussolini, and Stalin.”) stated Roosevelt “betrayed” the American people.

The America First Committee and its supporters, including Lindbergh, Kennedy, and Nye persisted though 1941.  In an anecdote, reported by historian Richard Ketchum in American Heritage Magazine in 1989, Senator Nye was speaking at an America First event in Pittsburgh, Pennsylvania on December 7, 1941.  As Nye accused the Roosevelt administration of “picking a war” with Japan, he was handed a piece of paper that informed him the Empire of Japan had declared war on the United States, and that the Pacific Fleet at Pearl Harbor had suffered a surprise strike from the Japanese Navy.  Nye remarked to the crowd “I have the worst news that I have had in twenty years to report, the Japanese Imperial Government at four P.M. announced a state of war between it and the United States and Britain.”  When asked about Pearl Harbor by reporters, Nye responded “It sounds terribly fishy to me.”

On December 10, 1941, the America First Committee dissolved.  Shortly beforehand, on December 8 of 1941, Congress voted for war with Japan.  The vote was nearly unanimous and the sole vote against war came not from a member of America First.  It was not even cast by an isolationist.  Instead, Progressive Montana Republican Jeannette Rankin, the first woman in Congress, an advocate for the 19th Amendment, and a lifelong pacifist cast the no vote, just as she had in 1917 against the First World War.

James Legee, Visiting Lecturer, Framingham State University Department of Political Science

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April 9: The Great Debates – The Nineteenth Amendment – Guest Essayist: Cleta Mitchell

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On Aug 26, 2020, we will celebrate the one hundredth anniversary of the ratification of the Nineteenth Amendment to the United States Constitution, guaranteeing the right to vote to America’s women citizens. It is a short and simple statement of law:

“The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.“ Amendment XIX, United States Constitution.

It may seem unusual in post-modern America of 2018 to think that there was ever a serious doubt or question about whether or not women should be granted the right to vote, but in the immediate aftermath of the Civil War, extending voting rights to women was as contentious as the fight over citizenship and voting rights for former slave African-American men.

The struggle to achieve women’s voting rights began at a conference in Seneca Falls, NY in 1848, when a group of men and women gathered to discuss the laws and legal status of women. Elizabeth Cady Stanton, who became one of the national leaders of the women’s suffrage movement in the last half of the 19th century, wrote the report of the Seneca Falls meeting, signed by the participants. She patterned it after the US Declaration of Independence, and it contained the first recorded demand for the right to vote for American women. Her compatriot in the women’s suffrage movement was Susan B. Anthony, often referred to as the mother of woman suffrage in America. Indeed, the Nineteenth Amendment was referred to at the time of its ratification as the “Susan B. Anthony Amendment”.

Following the Seneca Falls proclamation in 1848, there was a slow but steady growth of the national movement to pressure lawmakers in state legislatures, state constitutional conventions, and in Congress as well as newspaper publishers and the American public to support voting rights for women.

The movement gathered steam in earnest following the Civil War. There came to be a bitter struggle within the women’s suffrage movement, as some believed that any voting rights conferred on former slaves should simultaneously extend to women. Others, including the leading abolitionists of the day, argued that it was the time of the “Negro Man” and that women’s voting rights would have to follow in time. That debate split the women’s suffrage movement into two groups, which remained divided until 1890, when the two rejoined their efforts, and worked together over the remaining thirty years until securing the passage and final ratification of the Nineteenth Amendment in 1920.

The struggle for women’s voting rights went on for 72 years from that original meeting in Seneca Falls, NY in 1848. From the first (unsuccessful) state referendum on women’s suffrage in Kansas in 1865, the womens’ suffrage movement engaged in 480 petitions and lobbying drives in state legislatures, 277 campaigns at state party conventions to get woman suffrage endorsed by the state parties, and 56 separate state referendum campaigns to persuade male voters to enact women’s suffrage.

In addition, the suffragists targeted nineteen sessions of Congress in their quest to get Congress to approve a federal woman’s suffrage amendment and send it to the states for ratification.

Of all the state efforts, the suffrage movement in New York was perhaps the most disappointing but two years later, it may have been the most significant.

In 1915, the male voters in New York defeated the woman’s suffrage proposal but in 1917, that same referendum was approved by the most populous state in the country, and that victory made politicians take notice, including President Woodrow Wilson. Never an ardent supporter of woman suffrage, President Wilson nonetheless made the political calculation that support for a federal suffrage amendment would be a politically smart decision and, in 1918, announced his support for a federal constitutional amendment to grant women voting rights.

By the time Congress finally passed the Nineteenth Amendment and sent it to the states for ratification in 1919, all but a handful of states had enacted some form of woman’s suffrage, either for all purposes or for certain elections such as in school board or other local elections, or solely in presidential elections. Many western states had come into the Union in the late 19th and early 20th Centuries with woman suffrage as part of their state constitutions and Jeannette Rankin from Wyoming was elected to Congress in 1916, the first woman ever to serve in the United States Congress.

Thirty six states were needed for ratification of the Susan B Anthony Amendment. By August 1920, thirty five states had approved the ratifying resolution and after some surprising defeats in Delaware and Maryland, the last best hope for ratification rested in Tennessee.

The battle could not have been more vicious or intense. And in the end, despite all the arguments and political shenanigans, the Tennessee legislature passed the ratification resolution on August 18, 1920. It was enrolled by the Secretary of State, Bainbridge Colby on August 26, 1920 — who announced at 8 am that morning that the struggle for women’s suffrage was finally over.

The Nineteenth Amendment was the law of the land.

One hundred and thirty years after ratification of the United States Constitution, women were, at long last, granted full citizenship and voting rights in America. The Nineteenth Amendment is a piece of the struggle for freedom that had eluded half of America’s population for more than a century.

Cleta Mitchell is a partner in the Washington, DC office of Foley & Lardner, LLP, where she practices election and political law.

 

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April 6: Entry Into WWII And The America First Debate – Guest Essayist: James Legee

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In an address to Congress on July 4, 1821, then Secretary of State John Quincy Adams voiced opposition to American interference in European affairs, “Wherever the standard of freedom and independence has been or shall be unfurled, there will her heart, her benedictions and her prayers be. But she goes not abroad in search of monsters to destroy. She is the well-wisher to the freedom and independence of all.”  The ideal of America as a nation rarely departing the safety of the Atlantic and Pacific oceans on adventures abroad is strewn throughout competing political ideologies, parties, and interest groups in American history.  Isolationism is the doctrine that a nation should avoid foreign entanglements such as (non-defensive) wars and treaties (particularly mutual defense, foreign aid, etc).

The revolutionary generation saw this manifest in Washington’s 1793 Neutrality Proclamation, and the early republic in John Quincy Adams’ quote above.  The nativist isolationism familiar from 19th century Know Nothings was even brought to life and transposed into New York’s draft riots in Martin Scorsese’s Gangs of New York.  Indeed, it seems less a debate and more a part of American culture to assume America’s isolationism, at least until the 20th Century, despite books like Dangerous Nation by Robert Kagan of the Brookings Institution seeking to provide a contrary historical narrative.

Regardless of which reality or narrative dominated American history, nowhere were the stakes of this tension between isolationism and interventionism higher than in the late 1930s.  As war again swept across Europe, this time in the form of the Wehrmacht, democracies quickly fell to the tyranny of the Nazi fascists.  Remilitarization in Germany was concurrent with a resurgence of isolationism in the United States, especially among Midwestern Republicans, including Gerald Nye (R-ND), Arthur Vandenberg (R-MI), and William Borah (R-ID, though he passed in 1940), as well as the odd Democrat, such as Burton K. Wheeler (D-MT).  President Roosevelt sought to aid allied forces in their fight against the Nazis, but a sizable number of the electorate, major public figures, and a number of prominent Congressmen opposed any American involvement in another European war.

After the Great War, pro-war sentiment and anti-German sentiment waned as the 1920s gave way to the Great Depression and the 1930s.  A significant public outcry grew over the American expedition in Europe in WWI; so many young lives lost to a war so far from the shores of America.  How was it American boys wound up casualties in places like the Argonne Forest and the Marne?  Some began to believe that America was not pulled into war by a necessity to defend democracy, but instead was pushed to war by arms manufacturers.  In April of 1934, the Senate convened a committee to investigate war profiteering by large manufacturers such as DuPont, Colt, Westinghouse, and other military contractors.  The committee was chaired by Republican Senator Gerald Nye of North Dakota.  Nye, initially supportive of the New Deal, became a staunch opponent of Roosevelt, an outspoken isolationist, and critic of big business.  The Nye Committee, or Senate Munitions Committee, ran afoul of the powerful Senator Carter Glass, then Appropriations Chair.  After interviewing hundreds, Nye made the unsubstantiated contention in a speech that Wilson withheld information from the Congress and American people about the entry into World War I.  Democrats, led by Glass, were outraged and cut funding to the Nye Committee.  The final report of the committee, from February of 1936, provides little of substance, but this would not be the last investigation Nye led and it certainly bolstered the status of Isolationists in Congress.

Isolationists certainly did not want for influence in the Capital.  As the Nye Committee publicized and questioned the “Merchants of Death” that brought America to war, Hitler consolidated power in Germany.  June of 1934 brought the Knight of Long Knives, where SS and Gestapo members assassinated Hitler’s political rivals, solidifying his political and military hold over Germany.  One of Hitler’s first actions was to leave the League of Nations and continue to remilitarize.  Despite this, just over a year later Isolationists in America won a major political battle in passing the Neutrality act of 1935.  The thrust of the 1935 Neutrality act outlawed arms trade with any combatants should hostilities commence.  For enforcement purposes, the Office of Arms and Munitions Control was created under the Department of State and chaired by Joseph Coy Green (a former professor who taught future diplomat George Kennan).  The office registered manufacturers of military arms and material around the United States.

October of 1935 witnessed Nazi ally Italy, under the dictatorship of Mussolini, invade Ethiopia.  Arms shipments were prohibited to combatants, though neither the United States nor Great Britain took any further action to stem aggression.  Congress in 1936 passed another neutrality act which continued the ban on arms sales to combatants, and extended the prohibition to loans to combatant nations.  Shortly thereafter, Hitler seized the Rhineland along Germany’s western border.   1937 brought yet another Neutrality that reaffirmed the munitions ban, but added an interesting caveat.  Belligerents were allowed to purchase arms, so long as they paid cash and transported them out of the United States in non-American vessels, the advent of the so called “cash and carry” program.  With the consent of isolationists, America added kindling to arguably the greatest catastrophe of the 20th Century.

1938 brought continued German aggression as Hitler orchestrated the Anschluss of Austria and later demanded that the Sudetenland, a Germanic area of Czechoslovakia, be ceded to Germany.  While Roosevelt and his closest advisors were largely unified in their opposition to the Nazis, the Executive branch was hardly unified, as one of the most important diplomats in the political chess match, Ambassador to Great Britain, Joseph Kennedy, was a staunch isolationist.  The father of future President John F. Kennedy (himself a proponent of intervention who penned Why England Slept as an undergraduate Harvard student), Joseph Kennedy insisted war was not in the near future, even in a lunch with Winston Churchill where Churchill expressed concern over a militarizing Germany and comparatively vulnerable British Empire March of 1938.  Kennedy continued to marginalize himself from the administration and drift from its position over the course of 1938.  As the drift from Roosevelt continued, Kennedy took the irregular step of communicating outside official channels in order to directly reach Senators Burton Wheeler, Pat Harrison, Key Pittman, James Byrnes, and other government officials with his assessment and recommendations on the . Author Nicholas Wapshott points out that “The president was conspicuously not on the list.”

As Neville Chamberlain’s policy of appeasement failed to mollify Hitler, Kennedy further alienated himself from the administration when, in a draft of prepared remarks, Kennedy wrote “I cannot for the life of me understand why anybody would want to go to war to save the Czechs.”  Chamberlain’s government, of course, would not last much longer, nor would peace.  As the 1940 election approached, Ambassador Kennedy continued to operate in step with Congressional isolationists rather than the administration, and mulled a run at the White House himself.

As the pace and seriousness of events quickened, a broad coalition of isolationists and anti-war activists came together to form the America First Committee.  The America First Committee brought together Democrats and Republicans, pacifists and veterans, businessmen and farmers, Midwesterners and East Coasters, to oppose any American role in a European war.

James Legee, Visiting Lecturer, Framingham State University Department of Political Science

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April 5: Henry Cabot Lodge Senate Debate Of 1919 & The Treaty Of Versailles – Guest Essayist Tony Williams

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“Breaking the Heart of the World”  –  Henry Cabot Lodge and Constitutional Objections to the Treaty of Versailles

Background

World War I was fought from 1914-1918 and claimed the lives of nearly 9.5 million combatants.  The United States entered the war in April, 1917, when Congress voted to declare war based upon President Woodrow Wilson’s war message arguing for American intervention with the expansive and idealistic foreign policy goal to “make the world safe for democracy.”  The armistice was signed in November, 1918, and the war concluded on the eleventh hour of the eleventh day of that month.

The Allies of Great Britain, France, and Italy sought a punitive peace against Germany and blamed that nation for starting the war.  President Wilson, on the other hand, argued in his “Fourteen Points” for a lenient peace settlement that would prevent future wars by promoting international freedoms and self-determination.  At the core of his proposal was destroying the old balance-of-power diplomacy by establishing a League of Nations that would help prevent war through deliberation as well as an Article X that would commit member nations to go to war to stop an “aggressor nation.”

On November 19, 1919, the Senate was abuzz with activity from an early hour since all observers expected a critical debate and vote to take place after a twelve-hour debate the previous day. Spectators flooded the gallery, jockeying for a good vantage point to view the historic event.  Members of the press eagerly awaited news to report for their newspapers and spoke to their contacts about what to expect.  The Senators gradually entered the chamber and exchanged pleasantries in a civil manner before the day’s vigorous debate ensued.  Most eyes focused on sixty-eight-year-old Massachusetts Senator Henry Cabot Lodge.

The Senate was considering the Treaty of Versailles.  The Senators did not disappoint the spectators and debated the treaty through lunch and dinner. After a ten-hour marathon debate in which they heard the arguments of their supporters and opponents, the Senators prepared to vote on the treaty.  President Woodrow Wilson needed an affirmative two-thirds vote according to the Constitution to win ratification of the treaty he had personally negotiated for six months in France.  On the first vote, the Senators rejected the treaty with reservations by a vote of 55-39.  Another vote was taken on the treaty without reservations as the Wilson administration wanted and it was also defeated by a nearly identical vote of 53-38.

Lodge had reason to be satisfied with the defeat of the treaty.  He was furious when President Wilson did not consult with him in his position as chairman of the Senate Foreign Relations Committee before heading to Paris.  Moreover, Wilson had made blatantly partisan appeals in the congressional elections of 1918 in which Republicans had won control of both houses and Lodge became the Senate Majority Leader.  Wilson also did not include any Republicans on the peace delegation.

President Wilson had traveled to France to make peace in December, 1918, and Lodge questioned Wilson’s idealistic goals by asserting that the treaty should only focus on making it “impossible for Germany to break out again upon the world with a war of conquest.”  The president briefly returned briefly in February, 1919, and on the evening of February 26, Senator Lodge and other members of the Foreign Relations Committee attended a dinner at the White House.  Lodge sat impassively while the President spoke about a League of Nations to keep the peace.  Lodge did not like what he heard.  He peppered the president with a series of questions, and the answers confirmed many of Lodge’s fears that Article X of the League of Nations in the treaty would commit the United States to a war against any aggressor and bypass the constitutional requirement of a congressional declaration of war.  After the dinner, Lodge told the media, “We learned nothing,” meaning that nothing new was presented.  He was opposed to the United States being forced to “guarantee the territorial integrity and political independence of every nation on earth.”

Lodge believed in American constitutional principles and not committing U.S. troops to every conflict around the world.  He was not opposed to a postwar treaty or even to a League of Nations, but he could not abide international commitments that violated the Constitution.  He had the integrity to speak courageously and consistently to oppose the treaty with an international body that would compel America to go to war.

On the evening of Sunday, March 2, Lodge invited two other senators to his home to draft a resolution for their fellow senators to sign expressing their opposition to the League of Nations.  Thirty-nine Republicans would sign the resolution and even some Democrats would express support.

On March 3, Lodge gave an important speech expressing his opposition to the League of Nations.   Two weeks later, Lodge spoke in Boston and focused his attention on opposing Article X for violating American sovereignty, Congress’s prerogative to declare war, and the danger  that Americans would be forced “to send the hope of their families, the hope of the nation, the best of our youth, forth into the world on that errand [to stop aggressor nations].”  He continued, “I want to keep America as she has been – not isolated, not prevent her from joining other nations for these great purposes – but I wish her to be master of her fate.”  In the Senate, Lodge made sure that any new members of the Foreign Relations Committee were opposed to the League of Nations.

When President Wilson returned to the United States with the signed Treaty of Versailles, he broke with precedent and presented the treaty to the Senate in person.  As the president walked into the chamber with the bulky treaty under his arm, Lodge joked with Wilson and asked, “Mr. President, can I carry the treaty for you?” Wilson retorted, “Not on your life.”  It was funny but revealed a truth that Lodge was the Senator who would determine the fate of the treaty and that Wilson would not entrust it to anyone and not accept any changes.  During his address, President Wilson asked the Senate rhetorically, “Dare we reject it and break the heart of the world?”

In August, Lodge reiterated to the Senate that Article X violated the principles of the Constitution.  He stated that no American soldier or sailor could be sent overseas to fight a war “except by the constitutional authorities of the United States.”  In addition, Lodge thought that the United States could not fight in every war around the globe and only needed to protect American interests.  He said, “Our first ideal is our country . . . . We would not have our country’s vigor exhausted or her moral force abated, by everlasting meddling and muddling in every quarrel, great and small which affects the world.”

President Wilson had probably suffered a small stroke while in he was negotiating in Paris, and his health troubles caused him to be uncompromising.  In September, Wilson further angered Lodge and the other opponents by taking the case for the League of Nations directly to the American people on a train-stop speaking tour.  That tour was soon cut short when the president suffered a massive, debilitating stroke on October 2 back at the White House that incapacitated him for months.  When the vote on his beloved League of Nations and Treaty of Versailles took place in the Senate, the president could not even get out of bed and walk.

Throughout the debate over the Treaty of Versailles and League of Nations, Senator Lodge stood firmly for the American Constitution and its principles.  He did support world peace and hoped to avert another world war, but he would not sacrifice American principles in an attempt to achieve it.  He sought to do what was right according to the Constitution.

Tony Williams is a Constituting America Fellow and a Senior Teaching Fellow at the Bill of Rights Institute. He is the author of six books including the newly-published Hamilton: An American Biography.

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April 4: Stephen A. Douglas & Abraham Lincoln In Congressional Debate: The Compromise Of 1850, Kansas-Nebraska Act Of 1854 – Guest Essayist: Daniel A. Cotter

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The Great Debates – Stephen A. Douglas (1813-1861)

Known as “the Little Giant,” Stephen A. Douglas was a politician from Illinois who designed the Kansas-Nebraska Act and served as a member of the House of Representatives and the Senate, and was the Democratic Party nominee for president against Abraham Lincoln in the election of 1860.  Lincoln and Douglas also faced each other during the 1858 race for Senator from Illinois, and the two engaged in a series of famous debates on the question of slavery and the future of our nation.  Named the Little Giant because he was small in stature, he was not little when it came to politics and his place in our history as a great debater.

Early Life and Rise in Politics

Born in Vermont, Stephan Arnold Douglass, he eventually dropped the second s.  Douglas’ father died when Douglas was a baby.  His mother remarried and they moved to western New York. Eventually Douglas made his way to Illinois and was admitted to the bar.  He courted Mary Todd, who married Lincoln, and the two faced off against each other on many other occasions.  In 1847, he and his wife, Martha Martin, moved to Chicago.

Douglas became active in Illinois politics in the Democratic Party, serving as State’s Attorney of Morgan County in 1834.  He served in the Illinois House of Representatives, served as Illinois Secretary of State and then at age 27, was appointed to a position as Associate Justice of the Illinois Supreme Court when the number of justices was expanded.  In 1843, Douglas was elected as a United States Representative and served in that capacity until 1847, after the Illinois General Assembly voted elected him as a United States Senator.  Douglas would serve the rest of his public career in that position, serving from 1847 until June 3, 1861, when he died at the age of 48.

Congressional Work

In 1850, a sectional crisis ensued when California was admitted as a free state with no slaveholding state admitted at the same time.  Douglas was a strong advocate for compromise, supporting the efforts of Henry Clay.  Clay was a political rival, but Douglas took Clay’s bill for a compromise that had failed to garner adequate support and split it into separate bills, helping to navigate the successful approval of the Compromise of 1850, which reaffirmed the compromise on territories and slavery from the Missouri Compromise.

Douglas strongly advocated popular sovereignty, allowing the people rather than the national government to determine positions on slavery.  Lincoln used this position to try to distinguish himself in 1858 in the United States Senator race.  In 1854, Douglas invoked popular sovereignty during a dispute over the admission of the Nebraska Territory.

Various proposals for a transcontinental railroad were being made, with one potential route going through Chicago that would benefit Douglas.  Southern leaders offered a deal to Douglas- they would support the central route that went through Chicago if Douglas allowed slavery in the new territories.  The agreement effectively repealed the Missouri Compromise and the Compromise of 1850.  Douglas defended his position with popular sovereignty, winning over many from the north.  Lincoln criticized Douglas’ position in a series of speeches. Despite some critiques, Congress passed the Kansas-Nebraska Act, effectively overruling the Missouri Compromise.

In 1856, Douglas was a candidate for the Democratic Presidential nomination but was not the nominee.  In 1857, the United States Supreme Court issued the Dred Scott v. Sandford decision, striking down key provisions of the Missouri and 1850 Compromises and made the Kansas-Nebraska Act largely moot.  Douglas attempted to take a weak position on the decision to keep support from both the North and the South.

Douglas faced Senate reelection in 1859 by the Illinois legislature. Douglas represented the Democrats and the Republicans chose Lincoln.  The two eventually agreed to a series of a joint appearances, which became known as the Lincoln-Douglas Debates.  Douglas stood behind his popular sovereignty views.  Lincoln argued that slavery was a moral issue that the nation must decide.  In what became known as his “House Divided” speech, Lincoln stated in June 1858 (prior to the Lincoln-Douglas Debates, but consistent message):

“A house divided against itself cannot stand. I believe this government cannot endure, permanently, half slave and half free. I do not expect the Union to be dissolved — I do not expect the house to fall — but I do expect it will cease to be divided. It will become all one thing or all the other. “

In one of the speeches, at Galesburg, Illinois, Douglas asserted the Declaration of Independence did not apply to non-whites, stating, “This Government was made by our fathers on the white basis.”

At a debate in Freeport, Illinois, Lincoln pressed Douglas on his support of Dred Scott. Douglas took the position that the Supreme Court had explicitly prohibited states from not allowing slavery, but people of Territories had the ability to exclude slavery by “unfriendly legislation.”  This position came to be known as the Freeport Doctrine and Douglas was re-elected to the Senate, defeating Lincoln.

Conclusion

In the Presidential election of 1860, the two nemeses would face off again.  Douglas was the Democratic nominee, but the split on slavery positions resulted in splintering of the Democrats, with Southern Democrats nominating John C. Breckinridge and the Constitutional Union Party nominated John Bell.  Lincoln won and the Southern states quickly seceded.  Post-election, Douglas attempted to make compromise to avert secession and denounced it.  Douglas died on June 3, 1861, of typhoid fever.

Dan Cotter is a partner at Latimer LeVay Fyock LLC and an adjunct professor at The John Marshall Law School, where he teaches SCOTUS Judicial Biographies. He is in the process of writing a book on the seventeen Chief Justices.  He is also a past president of The Chicago Bar Association. The article contains his opinions and is not to be attributed to anyone else.

 

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April 3: Freedom Of Speech Within Congressional Debates: John Quincy Adams & The Gag Rule, 1840s – Guest Essayist: Tony Williams

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“Am I gagged?” –  John Quincy Adams and His Struggle Against Slavery and the Gag Rule

In December 1835, Massachusetts Representative William Jackson presented a petition to end slavery and the domestic slave trade in the District of Columbia where Congress had constitutional authority over slavery. Outraged southern representatives protested any consideration of the provocative petition. They felt that abolitionists had insulted southern institutions by sending hundreds of thousands of anti-slavery pamphlets through the mail to the South. South Carolinian James Henry Hammond complained he would not “sit there and see the rights of the Southern People assaulted day after day, by the ignorant fanatics.” Many southerners defended their “peculiar institution” against the barrage of assaults and developed the idea that slavery was a “positive good” that was beneficial for slaves, masters, and the country because it preserved a natural order rooted in the inequality of the races. They blocked abolitionist literature from reaching southern states and were preparing to block consideration of any abolitionist petitions in Congress.

John Quincy Adams was an unlikely member of the House of Representatives. He was a statesman and a former one-term president who had decided it would hardly be a demotion to represent the people in the Congress. Elected for the first time in 1830, he would eventually serve nine terms in the House and became a firm advocate for justice, constitutional rights, and natural rights.

In February 1836, South Carolinian Henry Laurens Pinckney offered a resolution stating that the House of Representatives would table any petition mentioning slavery and ban any discussion or referral to committees. In effect, the resolution was a “gag rule” that would prevent the reception and consideration of any petition protesting slavery. In May, the House soon passed the resolution by a vote of 117 to 68. Adams immediately rose from his seat to protest the gag rule.  When shouted down by colleagues and not recognized by the Speaker of the House, James Polk, Adams was exasperated and yelled, “Am I gagged?”  He argued that the gag rule was a “direct violation of the Constitution of the United States, the rules of this House, and the rights of my constituents.”  He declared the gag rule a threat to free, deliberative government: “The freedom of debate has been stifled in this House to a degree far beyond anything that ever has happened since the existence of the Constitution.”

While he did not embrace radical abolitionism, Adams did think that slavery was a grave moral evil that contradicted the ideals of the Declaration of Independence.  For Adams, the right to petition was essential to republican self-government by the consent of the governed and was a sacred, traditional right.  He asserted, “The right of petition . . . is essential to the very existence of government; it is the right of the people over the Government; it is their right, and they may not be deprived of it.”  Adams would persist in battling the gag rule and defending the just cause of a right to petition for the rights of others.

In January 1837, the House renewed the gag rule, and Adams quickly protested the rule by introducing hundreds of petitions including those from women and even free blacks and slaves.  The southerners in the House were irate and declared their honor insulted.  The House moved to censure (a formal reprimand) Adams for his supposed outrages.  Adams seized the opportunity to attack the gag rule and defend the right of petition.  It belonged not merely to the rich and powerful, but most especially to the powerless.  The right of petition was not the exclusive provenance of the “virtuous, the great, and the mighty,” he averred. “The right of petition belongs to all.” The attempt to censure Adams failed.

In early 1838, when the House voted to renew the gag rule yet again, Adams stood and argued that it violated “my right to freedom of speech as a member of the House.”  He also made the courageous stand to fight for women’s right of petition even though they could not vote.  “Are women to have no opinions or action on subjects relating to the general welfare?” he asked.

Adams continued to present hundreds of petitions with signatures from citizens opposed to slavery, and still his fellow representatives shouted him down.  Later that year, he resorted to a parliamentary trick by avoiding the word “petition” and stated he was introducing a “prayer” that all would enjoy their God-given rights.  “Petition was prayer,” he argued.  “It was the cry of the suffering for relief; of the oppressed for mercy.”  Therefore, to the great shock of Southerners, he asserted that he would therefore “not deny the right of petition to a slave.”

When he stated that summer that slavery was “a sin before the sight of God,” Adams received several death threats.  “I promise to cut your throat from ear to ear,” read one.  Another had a picture of a large Bowie knife, threatening, “Vengeance is mine, say the South!”  Finally, one warned of a “hangman to prepare a halter for John Quincy Adams.”  He confided to his diary that, “I walk on the edge of a precipice in every step that I take.”  Sometimes, he felt overwhelmed by the burden he was assuming for the cause of justice.  “I stand in the House of Representatives . . . alone.”  But he was not deterred from his path and only fought harder against the gag rule and for the right to petition against slavery.

Over the next two years, Adams introduced thousands of petitions. All were tabled without debate.  Pro-slavery representatives even instituted a harsher gag rule in 1840 to shut Adams up.  The House agreed that it would not even receive the petitions, but the new gag rule only passed by a narrow majority of six votes. Adams saw that his perseverance was bearing fruit. Still, in 1842, he saw a “conspiracy in and out of Congress to crush the liberties of a free people of the Union.”

Adams revered the Declaration of Independence (which his father, John Adams, had helped create) because of the self-evident truth that “all men are created equal, that they are endowed by their Creator with certain unalienable rights.”  It also asserted the principle of popular sovereignty, that all authority in a popular government resides in the people.  Consequently, Adams had the clerk of the House read the Declaration.  Adams then stated that, “I rest that petition on the Declaration of Independence.”

On December 3, 1844, Adams’s diligent efforts were finally rewarded when the House voted to abolish the gag rule.  He had fought and won a long struggle for constitutionalism and for the rights of others.  Even his enemies grudgingly admitted his diligence to the cause of justice.  Henry Wise of Virginia called Adams “the acutest, the astutest, the archest enemy of Southern slavery that ever existed.”  He had fought the gag rule, pursuing the ideal of justice and fighting to preserve American ideals: the right of petition for all Americans and the natural rights of enslaved Americans.

Tony Williams is a Constituting America Fellow and a Senior Teaching Fellow at the Bill of Rights Institute. He is the author of six books including the newly-published Hamilton: An American Biography.

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April 2: The Great Debates – Robert Hayne’s 1830 Senate Speech & Daniel Webster’s Reply, Part 2 – Guest Essayist: Joerg Knipprath

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On January 26 and 27, Webster returned fire. In a speech equally aroused as Hayne’s, and laced with historical references, constitutional argument, and heavy doses of sarcasm, Webster rejected Hayne’s attacks and painted a picture of an optimistic nationalism that stood in stark contrast to Hayne’s defensiveness.

Relying on only a few notes, and using his sonorous voice to full effect, Webster spoke hour after hour. It was clear that the matter had become personal for Webster, as it earlier had for Hayne. He devoted considerable energy to chastising Hayne for alleged violations of decorum in Hayne’s speech. On substance, he listed numerous votes by the East in favor of the West. He extolled the South Carolinians’ support for tariffs and internal improvements during the 1810s, using their own votes and speeches to make his point about their opportunistic reversal and baseless objections to those policies in the 1820s.

However, most of his effort was directed at defending the Union and rejecting Hayne’s vision of the country:  the South Carolina Doctrine was an illegitimate form of revolution; the Constitution’s source was the people, not the States severally; the general government was one of limited powers, but the Supremacy Clause of the Constitution made that government’s laws immune from state interference; the Constitution placed in the Supreme Court the power to patrol the lines between the general government’s specified powers and the reserved powers of the several States; the States had lost crucial incidents of sovereignty, such as making war or coining money; the Constitution was a government, not a treaty, so Hayne’s analogy to judicial incompetence to decide cases between national sovereigns was inapt. Using language later popularized through Abraham Lincoln’s Gettysburg Address, Webster declared, “It is, Sir, the people’s Constitution, the people’s government, made for the people, made by the people, and answerable to the people.” The remedy for unconstitutional action lay not with a single state, but with the people as a whole, through the legislative process, by appeal to the judiciary, or through a constitutional convention. Ultimately, in case of “intolerable oppression…the people might protect themselves, [even] without the aid of the State governments” (i.e. a right of revolution).

Reaching the oration’s climax, Webster implored,

“When my eyes shall be turned to behold for the last time the sun in heaven, may I not see him shining on the broken and dishonored fragments of a once glorious Union; on States dissevered, discordant, belligerent; on a land rent with civil feuds, or drenched, it may be, in fraternal blood! Let their last feeble and lingering glance rather behold the gorgeous ensign of the republic, now known and honored throughout the earth, still full high advanced, its arms and trophies streaming in their original lustre, not a stripe erased or polluted, nor a single star obscured, bearing for its motto, no such miserable interrogatory as ‘What is all this worth?’ nor those other words of delusion and folly, ‘Liberty first and Union afterwards’; but everywhere, spread all over in characters of living light, blazing on all its ample folds, as they float over the sea and over the land, and in every wind under the whole heavens, that other sentiment, dear to every true American heart,–Liberty and Union, now and forever, one and inseparable!”

Hayne immediately rose once more to speak at length. In his second speech, Webster had accused the South of wanting to replicate the efforts of the discredited war-time Hartford Convention. Hayne contemptuously rejected the “advice.” “[W]hen South Carolina shall resort to such a measure for the redress of her grievances, let me tell the gentleman that, of all the assemblies that have ever been convened in this country, the Hartford Convention is the very last we shall consent to take as an example; nor will it find more favor in our eyes, from being recommended by the Senator from Massachusetts. Sir, we would scorn to take advantage of difficulties created by foreign war, to wring from the federal government redress even of our grievances.”

There followed a lengthy exposition of the “South Carolina Doctrine.” Hayne examined in fine detail the founding of the country, the basis of government under the Constitution, and the nature of dual sovereignty in our federal system. Revisiting contentions made numerous times in various forums over the previous half-century, Hayne insisted that the Union is a compact among the people of the states. Both–the Union and the States–retain their sovereignty, and neither can be the judge over the other. Congress cannot be a judge in its own cause over the extent of its own powers, and the federal Supreme Court can no more assert jurisdiction to act as umpire than it can in a dispute between sovereign nations. The Constitution was established to constrain the majority. Governing powers were separated and distributed. Congress was given only limited powers. If Congress ventures beyond those powers, their actions are void. States have the power to declare when such violations have occurred and, as the 10th Amendment confirms, have never surrendered their plenary power “to interpose for arresting the progress of evil.” Appealing to the respect given to James Madison and Thomas Jefferson, Hayne used their Virginia and (revised) Kentucky Resolutions against the Alien and Sedition Acts to justify also nullification.

What about resolving inevitable conflicts? Starting with a statement by Jefferson from 1821, Hayne placed the onus on Congress to call a convention and have the disputed matter addressed by constitutional amendment. The requirement that three-fourths of states must approve such an amendment provided enough protection to disaffected minorities without holding the country hostage to every whimsical objection one state might make.

Seizing on Webster’s ringing conclusion in the second speech, Hayne needled him, “The gentleman is for marching under a banner studded all over with stars, and bearing the inscription Liberty and Union. I had thought, sir, the gentleman would have borne a standard, displaying in its ample folds a brilliant sun, extending its golden rays from the centre to the extremities, in the brightness of whose beams, the ‘little stars hide their diminished heads.’ Ours, Sir, is the banner of the Constitution, the twenty-four stars are there in all their undiminished lustre, on it is inscribed, Liberty–the Constitution–Union….”

Webster then offered a brief rebuttal on the salient issue of the nature of the Union. He presented a summary of his earlier argument, but added that even Hayne’s compact theory would not permit unilateral action by one state. Instead, it would require decision by all, as under the Articles of Confederation. The debate had laid bare the fundamental contrast between the two conceptions of the Union, and its spectacle had driven the issue into the public consciousness.

Webster’s words are better known today than Hayne’s. Even had the armed conflict of the following generation over slavery and the nature of the Union turned out differently, that might yet be the case. Hayne argued on behalf of an aristocratic social and classic republican political order tied to the soil and local custom. That order could not survive the material dynamic of the Industrial Revolution, the economic rise of the capitalist class, and the influx of immigrants who lacked an intellectual tether to the Founding and who had loyalties to the nation to which they were drawn rather than to the particular states in which they happened to settle. Nationalism was on the rise, and it was Webster who extolled its benefits. Webster firmly tied Union to the Constitution itself, and evoked the imagery of its presumed majesty. Opposition to that Union by a single state was cleverly and clearly branded treason by Webster’s stark portrait of how nullification would inevitably result in armed conflict.

That said, Hayne’s exposition of states’ rights–or, more starkly, each state’s rights–may have lost its contest for constitutional dominance, but it has not been defeated as an idea. Even now, cities and states seek to limit traditional federal power over immigration and other aspects of national sovereignty by interposition and nullification. A pertinent example is California’s “sanctuary state” policy to frustrate federal enforcement of immigration laws. As the country’s sharp division into inflexible factions and identity groups continues to harden, the republicanism that rests on compromise and accommodation becomes increasingly difficult to sustain on a national scale. The ever-growing reach of the federal government and its metamorphosis into the “consolidated government” that Hayne feared and Webster dismissed is likely to renew interest in theories that–while they preserve union–might provide a political safety valve short of armed action against federal laws that counter strong local customs and deeply-held beliefs of a portion of the Union. The speculations of Hayne–and more fundamentally, John C. Calhoun, the great intellectual exponent of this constitutional vision–may well rise again to prominence. One doubts, however, that in an age when 140-letter “tweets,” sensationalist press releases, and “hashtags” count as substantive political discourse, we will soon see the likes of the Hayne-Webster debate.

Reference:

Webster-Hayne Speeches: http://oll.libertyfund.org/titles/webster-the-webster-hayne-debate-on-the-nature-of-the-constitution-selected-documents

An expert on constitutional law, and member of the Southwestern Law School faculty, Professor Joerg W. Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. He has also spoken on business law and contemporary constitutional issues before professional and community forums, and serves as a Constituting America Fellow. Read more from Professor Knipprath at: http://www.tokenconservative.com/.

 

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March 30: The Great Debates – Robert Hayne’s 1830 Senate Speech & Daniel Webster’s Reply – Guest Essayist: Joerg Knipprath

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Over the course of approximately a week in late January, 1830, a debate occurred in the United States Senate that historians consider the greatest ever in that chamber. Before a gallery packed with listeners, under the animated gaze of Vice-President John C. Calhoun, Senators Robert Hayne of South Carolina and Daniel Webster of Massachusetts waged an oratorical battle. Astonishing is that it was precipitated by a skirmish over an intellectually rather dry, though politically charged, topic–the sale of public lands in the American West to settlers.

The previous month, Senator Samuel Foot of Connecticut had proposed that Congress investigate the desirability of curtailing the sale of public lands by the federal government. Senator Thomas Hart Benton of Missouri, representing the Western interests, denounced the proposal as another attempt by Eastern economic interests to prevent the migration of workers from their states. From his perspective, keeping those workers tied down in their locales suppressed the cost of labor and increased the industrialists’ profits. The Westerners wanted free migration and federally-financed “internal improvements” and the economic and political benefits that would accrue from them.

The country was increasingly riven by sectional tension, not just the familiar one between North and South, but, as significantly, between Northeast and West. Gone, it was lamented, was the ethos of sectional compromise forged by the exigencies of the Revolutionary War. Western politicians, such as Benton, sought to increase their political importance by aligning themselves with one section’s interest against the other. On this particular matter, as comically described by the historian Samuel Eliot Morison, Benton “summoned the gallant South to the rescue of the Western Dulcinea, and Senator Hayne of South Carolina was the first to play Don Quixote.”

Hayne was an accomplished lawyer, speaker, and writer. He was well-educated, with handsome features, and unfailingly polite. He was elected to the Senate at 31, barely over the minimum age, a fitting champion for his Southern aristocratic class. His first speech in the debate, on January 19, chastised the Northeast for its protectionism of nascent industries and linked that policy to Benton’s claim about the industrialists’ obstruction of Western migration.

Hayne’s attack dovetailed with increasingly determined and desperate Southern opposition to the national tariff policy during the 1820s and 1830s. Import duties on European finished goods, such as textiles, protected the weavers of New England, but increased the price of such goods to consumers. Moreover, these duties invited British retaliation against American commodities, including cotton, by tariffs and by expanded reliance on alternative suppliers, such as cotton growers in Egypt and India.

Thus, the “Tariff of Abominations” of 1828, was so economically damaging and politically volatile, that a Member of Parliament, William Huskisson, delivered a speech that laid out clearly for the South the British policy. Huskisson predicted that the failure to lower the tariff would lead inevitably to Southern secession. Then-Congressman George McDuffie of South Carolina, popularized the “forty-bale theory.” Due to British retaliation, Southern cotton prices fell, and the South became a captive supplier for Northern mills. As well, consumer goods prices were artificially high. In such combination, the tariff so decreased Southern purchasing power that, McDuffie claimed, of every hundred bales of cotton produced, forty went into the pockets of Northeastern industrialists. Many Southerners saw themselves as the victims of a “colonial” policy by Northeastern financial, industrial, and political interests. As Western grievances complemented theirs, it is no wonder that Benton’s charge resonated with Southerners.

In a historical irony, the protective tariff of 1816, which got protectionism rolling, was the work of two South Carolinians, one of them then-Congressman John C. Calhoun. But by 1830, with the Tariff of Abominations in full force, Calhoun was Vice-President and was crafting his theories of nullification and concurrent majorities, from his 1828 Exposition and Protest to his 1831 Fort Hill Address. Historians have debated the extent to which Hayne’s speeches were merely the words of Calhoun, who, by virtue of his role as the Senate’s president, was debarred from speaking. Clearly the two men, bound by state residency, party affiliation, intellectual prowess, and cultural and class affinity, saw eye-to-eye. Most likely, Calhoun’s philosophical depth and systematic mind helped Hayne craft his argument. But, ultimately, Hayne was his own man.

The next day, Senator Daniel Webster rose to respond. At age 48, he was ten years older than Hayne. Though not as pleasing of looks as his opponent, Webster had his own advantages, physical and intellectual. Morison described him as “the most commanding figure in the Senate…with a crag-like face, and eyes that seemed to glow like dull coals under a precipice of brows….His magnificent presence and deep, melodious voice gave distinction to the most common platitudes; but his orations were seldom commonplace.” Webster was possessed of a powerful intellect, one that, combined with his oratorical talents, had made him a successful lawyer, Supreme Court advocate, and politician. He argued well over 200 cases before the Supreme Court, litigating some of the most important constitutional disputes, such as McCulloch v. Maryland, Dartmouth College v. Woodward, Gibbons v. Ogden, and Luther v. Borden.

Webster rejected Hayne’s attacks on New England’s alleged selfishness and its placing of sectional self-interest over the common national good. Not content merely to parry Hayne’s political attacks and to reject emphatically any suggestion that the Northeast opposed Western development, he broadened the debate to criticize Southern states’ rights doctrines. He charged the South with insufficient gratitude for, and pride in, the Union and denounced recent political movements in South Carolina calling for a state convention to nullify the tariffs. Webster also injected slavery into the debate to play on the discomfort of many Westerners (though not of Senator Benton) over the expansion of the South’s “peculiar institution.” He praised the swift growth of Ohio over the past generation and goaded Hayne about the inferiority of Kentucky, a distinction he attributed to the latter’s protection of slavery. Webster sought to tar Hayne with the spirit of disunion, scolding Hayne’s apparent willingness to “preserve the Union while it suits local and temporary purposes” and to “dissolve it whenever it shall be found to thwart such purposes.” This was particularly galling because Calhoun and Hayne had restrained the nullification efforts of more radical elements in South Carolina led by McDuffie and state leaders, such as Robert Barnwell Rhett.

Hayne was not about to let the gauntlet lie. On January 21 and 25, the South Carolinian went on offense. In a blistering, often sarcastic, and impassioned speech delivered in a tone of “scarcely contained bitterness and rage,” he extolled the South’s patriotism and contrasted it with New England’s conduct during the War of 1812. In the Federalist Party-controlled Hartford Convention of 1814, the (then) five New England states had challenged the constitutionality of federal war policy that harmed them and had pledged to interpose themselves between the federal authority and their people. Webster had not taken part in that gathering, but he was a long-time Federalist Party member and had made anti-war speeches. Hayne launched into a long and detailed indictment of Massachusetts’s perfidies against the United States during that war.

Hayne also vigorously defended the practical aspects of Southern slavery. He urged those, like Webster, who did not understand the conditions in which the system operated, to heed the South’s desire simply to be left alone. Taking the argument to slavery’s opponents, Hayne described the miserable conditions under which free Blacks often lived in Northern cities.

Hayne explained, analyzed, taunted, and exhorted relentlessly over portions of two days. He struck rhetorical and analytical blow after blow. Through it all, Webster sat impassively. To his friends, concerned that Webster had but one night to prepare his response, Webster grimly offered the assurance that he would “grind [Hayne] as fine as a pinch of snuff.”

Reference:

Webster-Hayne Speeches: http://oll.libertyfund.org/titles/webster-the-webster-hayne-debate-on-the-nature-of-the-constitution-selected-documents

An expert on constitutional law, and member of the Southwestern Law School faculty, Professor Joerg W. Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. He has also spoken on business law and contemporary constitutional issues before professional and community forums, and serves as a Constituting America Fellow. Read more from Professor Knipprath at: http://www.tokenconservative.com/.

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March 29: The Great Debates – Congress & The Missouri Compromise Of 1820 – Guest Essayist: Daniel A. Cotter

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When the United States Constitution was ratified in 1789, debates over slavery and how to count slaves for purposes of legislative representation and tax apportionment threatened to derail an agreed upon new constitution.  The Three-Fifths Compromise resulted and while it led to the ratified Constitution, the issue of slavery continued to be a major issue of tension between the North and South.  In 1820, those tensions intensified when Missouri sought admission to the Union.  The Missouri Compromise was the solution that pushed civil war back several decades.

The Missouri Compromise

The Missouri Compromise was an effort by the United States Congress to address slavery and create balance between the slaveholding and free states.  Congress struggled with the issue for some time starting in 1819, when the Missouri Territory applied for statehood.  The Missouri Territory had been part of the Louisiana Purchase in 1803.  The Spanish and French sanctioned slavery in the Louisiana territories prior to the sale, and Louisiana, the first state carved from the Louisiana Purchase, was a slave state when it entered the Union.  If it were admitted, Missouri would throw off the eleven to eleven balance between slaveholder and free states.  On February 3, 1819, New York Jeffersonian Republican Representative James Tallmadge, Jr. proposed two amendments to Missouri’s application for statehood, providing:

“And provided, That the further introduction of slavery or involuntary servitude be prohibited, except for the punishment of crimes, whereof the party shall have been fully convicted; and that all children born with in the said State, after the admission thereof into the Union, shall be free at the age of twenty-five years.”

The Tallmadge Amendment passed the House but failed in the Senate.  The debates in the two chambers of Congress pitted the northern restrictionists against anti-restrictionists from the south.  To further the Tallmadge Amendment in the House, a fellow House member, proposed splitting Tallmadge’s amendments into two separate votes and, despite a 101 to 81 northern advantage in the House, the House voted 87-76 in favor of the further migration into Missouri and 82 to 78 on emancipation at age twenty-five.   But the three days of debate prior to passage have been described as “rancorous” and “fiery” and “blistering,” with rhetoric such as “which seas of blood can only extinguish” and “If a dissolution of the Union must take place, let it be so!”  When the House passed bill made it to the Senate, the Senate rejected both parts, 22-16 and 31-7, respectively.

The Congressional debate on admitting Missouri continued for a year, until Maine (which was part of Massachusetts) sought statehood.  The agreed upon deal was to admit Maine as a free state and Missouri as a slave state- states would be admitted in pairs to keep the balance.  The Senate linked the two bills for Missouri and Maine and Senator Jesse B. Thomas from Illinois introduced a compromise amendment, which excluded slavery from remaining lands of the Louisiana Purchase north of the 36◦, 30’ parallel.

The measure passed the Senate but faced resistance in the House by Northerners who wanted Missouri to be a free state.  Speaker of the House Henry Clay, the “Great Compromiser,” divided the Senate bills and on March 3, 1820, the House voted to admit Maine as a free state, Missouri as a slave state, and made free soil western territories north of Missouri’s southern border, excluding Missouri.  The debate did not end in 1820, however.

When Missouri submitted its new constitution, it excluded “free negroes and mulattoes” from the state.  Clay again saved the matter, approving an act of admission that the exclusionary clause would “never be construed to authorize the passage of any law” that impaired the privileges and immunities of any United States citizen.  Referred to as the Second Missouri Compromise, it helped save the Union for several decades.

Conclusion

The Missouri Compromise was a necessary action to avert continued battles over the balance of power in Congress.  However, Thomas Jefferson predicted the peace gained by the Missouri Compromise could not last, writing to a friend:

“[B]ut this momentous question, like a fire bell in the night, awakened and filled me with terror. I considered it at once as the knell of the Union. it is hushed indeed for the moment. but this is a reprieve only, not a final sentence. A geographical line, coinciding with a marked principle, moral and political, once conceived and held up to the angry passions of men, will never be obliterated; and every new irritation will mark it deeper and deeper.”

The Missouri Compromise helped to issue a “reprieve” as Jefferson noted, and for the next three decades, the issue continued to be debated, but the balance of power remained, until the admission of California as a state in 1850 with no offsetting slaveholding state admitted at the same time.  Effectively overruled by the Kansas-Nebraska Act in 1854, the Missouri Compromise was also found to be unconstitutional by the much-denounced 1857 Supreme Court decision, Dred Scott v. Sandford, which held that Congress had overreached in its enactment of the Missouri Compromise.  Civil war would come four years after Dred.

Dan Cotter is a partner at Latimer LeVay Fyock LLC and an adjunct professor at The John Marshall Law School, where he teaches SCOTUS Judicial Biographies. He is in the process of writing a book on the seventeen Chief Justices.  He is also a past president of The Chicago Bar Association. The article contains his opinions and is not to be attributed to anyone else.

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March 28: The Role Of Congress In Creation & Constitutionality Of The National Bank, Part 2 – Guest Essayist: Tony Williams

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Hamilton v. Jefferson: Taking the Constitution Seriously 

The First Congress was deeply divided over policies at the very start of the new nation. The debates generally centered around the economic policies and financial plans of Secretary of the Treasury Alexander Hamilton. The contention about the National Bank in particular generally revealed a sectional and increasing partisan divide between the Hamiltonians and Jeffersonians. While the debates revealed the tensions in the new nation, they also properly took place regarding interpretation of the Constitution.

In August 1790, Hamilton was preparing to move the treasury department to the new capital at Philadelphia. He had recently won the battle over the federal assumption of state debts and helped establish the soundness of the public credit. That month, Congress asked him to prepare a report on a National Bank. In December, he submitted a masterful blueprint for the National Bank and focused on its contribution to the growth of the American economy.

The National Bank would provide a means of taking deposits and lending out money for investment in business ventures, which would in turn stimulate the economy. Hamilton wrote, “By contributing to enlarge the mass of industrious and commercial enterprise, banks become nurseries of national wealth.” Hamilton believed that a bank was necessary not only to economic growth but to national security by funding armies in times of war.

The proposed bank encountered immediate opposition in both houses of Congress. Opponents were primarily southerners and those who feared centralized power and aristocracy—those who would become Jeffersonian Republicans. One member of Congress predicted, “This bank will raise in this country a moneyed interest at the devotion of government; it may bribe both states and individuals.” James Jackson of Georgia argued the bank was “calculated to benefit a small part of the United States, the mercantile interest.” Senator William Maclay predicted it would become “an aristocratic engine” and a “machine for the mischievous purposes of bad ministers.”

Despite the fierce opposition, the Senate easily passed the bill on January 20, 1791. James Madison led the opposition to the bank in the House. On February 2, Madison delivered a lengthy speech questioning the constitutionality of the proposed bank. Madison objected that it was not an enumerated power of Congress, nor was it a power Congress could legitimately exercise under the Necessary and Proper Clause in Article I, section 8. Madison’s arguments were to no avail. The House passed the bill by an overwhelming margin of 39 to 20.

President George Washington was a firm advocate of a stronger national government and economy, and usually sided on policy with Hamilton. However, the objections of Madison, and Thomas Jefferson and Edmund Randolph in the cabinet, troubled the president. He also took the Constitution seriously when considering signing bills into law, and he was concerned about the absence of a specific constitutional clause allowing Congress to create a National Bank. Therefore, he solicited opinions from the members of his cabinet to help him decide whether to sign the bill into law.

Jefferson produced a stronger paper arguing against the bank than Randolph’s rambling opinions. Jefferson argued for limited government when he stated that to “take a single step beyond the boundaries thus specially drawn around the powers of Congress, is to take possession of a boundless field of power, no longer susceptible of any definition.” The power to establish a bank was not one of the delegated powers of Congress, nor did the Necessary and Proper Clause apply because he thought the powers of the bank were unrelated to any other powers in Article I, Section 8. Jefferson argued that it was neither strictly necessary nor proper: “A bank therefore is not necessary, and consequently not authorized by this phrase.” He advised Washington to veto the bill because it was an “invasion of the legislature.”

On February 16, Washington weighed the arguments contained in the papers and then forwarded them to Hamilton for consideration while composing his paper. Five days later, Hamilton produced a brilliantly-crafted tour de force, burying his opponents in an avalanche of words and logic. Hamilton argued that the federal government had implied powers based upon having the means to execute the ends of its authority under enumerated powers. Moreover, Hamilton articulated numerous powers that Congress had that were related to the powers of a National Bank and therefore it was a constitutional exercise of power under the Necessary and Proper Clause. President Washington agreed with Hamilton’s constitutional reasoning and signed the bill into law on February 25.

The debate over the National Bank would be one of the disputes that helped create the Democratic-Republican and Federalist political parties. The differing perspectives on constitutional interpretation divided the Democratic-Republicans who had a strict construction of the Constitution from the Federalists who had a loose construction of the Constitution.  The 1790s were consequently characterized by a wide partisan divide over economic policies, constitutional interpretation, and foreign policy.

Whatever the divisions caused by the debate over the National Bank, the quarrel was ultimately rooted in the Constitution. Members of Congress considered the constitutionality of the bank bill during its passage. President Washington carefully weighed the Constitution when deciding to sign the bill, and its supporters and opponents made constitutional arguments for their rival views. The politicians and statesmen of the early republic took the Constitution seriously.

Tony Williams is a Constituting America fellow, a Senior Teaching Fellow at the Bill of Rights Institute, and the author of six books including Hamilton: An American Biography and Washington and Hamilton: The Alliance that Forged America.

 

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March 27: The Role Of Congress In Creation & Constitutionality Of The National Bank – Guest Essayist: Joerg Knipprath

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In July, 1790, Congress approved removal of the national capital ten years hence from New York City to an as-yet undetermined location on the Potomac River. The vote was the result of a political maneuver to accommodate a matter of much more immediate impact, the realization of Alexander Hamilton’s economic salvage blueprint for the new nation. That blueprint proved crucial to the country’s economic and political fortunes. At the same time, it opened fissures of sectional conflict, constitutional theory, and political partisanship that had remained below the surface, if barely, during the preceding decade.

The impact of the first Secretary of the Treasury can hardly be overstated. His figure loomed so large over the country’s political and economic affairs even after he left office in 1795 that some historians have dubbed the era “Hamilton’s Republic.” It was a felicitous combination of man and office. The evolution of Anglo-American constitutional doctrine that emphatically placed the power over the purse in the legislature put the head of the treasury in a category distinct from the rest of the executive cabinet. Alone among those officers, he was required by law to issue reports directly to Congress. At the time, the Treasury Department had by far more officials in the capital and functionaries in the field than other civilian departments had.

Hamilton played into this role by treating the position as a sort of prime ministership, through which he would oversee the other cabinet heads under the reign and guidance of the president, as well as act as a liaison between the executive and legislative branches. The childless President George Washington, for whom Hamilton had become a surrogate son, abetted this stance. Washington not only typically took Hamilton’s side in political disputes, but also gave him tasks and requested his opinions in matters outside the Treasury Department’s domain.

Following a meteoric rise that saw him form his own New York militia artillery company at age 19, become adjutant to General Washington with the rank of lieutenant colonel at 20, command a critical assault at the Battle of Yorktown at 24, and found the Bank of New York at 27, Hamilton became Secretary of the Treasury at 32. In September, 1789, Congress requested that he prepare a series of reports on the credit of the United States. Hamilton delivered his recommendations to Congress in January, 1790.

The “Report on the Public Debt” proposed three broad policies: to fund the national debt (including interest payments in arrears) at par through 6% bonds, to assume payment of the remaining state war debts, and, in a separate report in January, 1791, to create a central banking institution akin to the Bank of England. Each policy engendered vocal opposition. As to the first, the debt was owed about one-third to European creditors. The rest was owed to Americans, typically merchants who had supplied goods and individuals who had supplied service, typically military, and been paid with these debt certificates. The value of the debt instruments had decreased significantly due to currency devaluation and the long-running uncertainty about the government’s ability to repay them at all. As a result, wealthy individuals had purchased much of the outstanding debt at deep discount from those holders who, over the years, needed cash. Many denounced Hamilton’s plan as a wealth transfer from the middle and lower classes, who would have to pay taxes needed to retire the debt, to the upper-class “speculators.” Their criticisms were not entirely unfounded, as Hamilton made clear in various statements. He believed that the success of the United States ultimately lay in tying the self-interest of the leading members of the community to the nation rather than their states. Nothing would do so more than to align their economic future with that of the general government and to direct their energy to expanding the country’s commerce and manufacturing. Repaying their financial bonds at par would, in turn, create personal and class bonds that would transcend state loyalties.

As to the second, Virginia and some other states objected because they had paid down, or even eliminated, their war debts through prudent financial policies. Those states saw the debt assumption by the federal government as rewarding profligacy and irresponsibility by debtor states and balked at the idea that their own citizens would now be taxed to cure the results of that mismanagement. Others viewed the assumption as creating a perception of a “bail-out” of abject states by a benevolent and efficient general government. Thus, they rejected the policy as a dangerous surrender of state power.

The establishment of the proposed central bank proved to be the most controversial of all, both as to the particular policy and the more general constitutional questions it raised. The Bank of the United States would be funded through the sale of stock, with 80% of the initial shares bought by private investors and the rest by the general government. Directors of the Bank would be selected in like proportion by the private and government interests. The Bank would act as a depository for government funds, and the government would draw on its account to pay its bills. Operating in various cities, the Bank’s prestige would attract private deposits and stock purchases throughout the nation. Foreigners also could buy stock but could not vote. Further, the Bank would extend credit to state banks under terms that would allow it eventually to control the national money supply as needed for economic stability. Through loans for large commercial or productive undertakings, the Bank could promote economic growth and internal improvements. Finally, its notes, backed by a reserve of gold and silver and circulated nationally, would provide a safe and effective medium of exchange.

Profits from its loans would be paid in dividends as a return on investment for the stockholders. The government’s share would be used to help pay interest and principal of all outstanding public debt. The Bank’s charter would expire after twenty years unless renewed.

The project was not novel. Hamilton had proposed such a system to the Confederation’s powerful Superintendent of Finance, Robert Morris, in 1781. Morris, who entertained similar ideas, set up the Bank of North America, chartered by the Congress under the Articles of Confederation. However, doubts were raised about that bank’s charter, because the Articles did not expressly confer such a power on Congress, and all powers not expressly given to Congress under that charter were reserved to the states. Hence, Morris also obtained a state charter for that bank from Pennsylvania. Four years later, the Pennsylvania legislature repealed that charter. Although the state reversed itself again in 1787, the damage was done. The vagaries of state legislatures undermined the very concept of a central bank. At the same time, the salutary effects on national finance demonstrated by that bank in its first several years affirmed Hamilton’s beliefs in the project. Hamilton himself had written about the issue of the public debt and generally admired Morris’s management of the matter. The admiration was reciprocated. President Washington first offered the Treasury position under the new government to Morris, who declined and recommended Hamilton–not that Washington needed much persuasion.

As with the Bank of North America, arguments quickly arose that Congress lacked the power to charter the Bank of the United States. After all, the Philadelphia Convention had rejected James Madison’s proposal to allow Congress to charter banks and corporations. Some had opposed this as a dangerous grant that would lead to a “consolidation” of the government in Congress. Others, looking at traditional English chartering of corporations, opposed it as unnecessary, because such a power already was inherent in sovereignty.

Faced with the controversy, Washington asked Madison, who served as a close adviser to the President even as he became a leader in the House of Representatives, to draft a veto message against the Bank Bill. In two speeches before the House, Madison opposed the proposal. He asserted that Congress could only exercise powers expressly granted or those that were a mere incident “evidently and necessarily involved in an express power.” Washington also submitted the issue to Attorney General Edmund Randolph and Secretary of State Thomas Jefferson. All three of his fellow-Virginians assured the President that the bill was unconstitutional in that Congress lacked the express authority to charter the Bank. Further, Congress could not rely on “implied” powers.

Jefferson delivered his opinion on February 15, 1791. He rejected arguments that the proposal could be upheld under Congress’s powers to tax, borrow, or regulate commerce. More significantly, he read both the “general welfare” language and the “necessary and proper” clause narrowly. The former was not a separate grant, but one tied to the taxing and spending power for Congress to spend only for the objectives listed in Article I, Section 8, of the Constitution. As to the latter, “necessary” did not mean mere “convenience,” but only “those means without which the grant of the [express] power would be nugatory.” Otherwise, “there is not one [non-enumerated power] which ingenuity may not torture into a convenience in some instance or other, to some one of so long a list of enumerated powers. It would swallow up all the delegated powers, and reduce the whole to one phrase,” namely, to give Congress “power to do whatever would be for the good of the U.S. … or whatever evil they pleased.”

Hamilton quickly drafted a 15,000-word response, which he delivered on February 23, 1791. He urged a flexible interpretation of Congress’s powers because of the “general principle [that] is inherent in the very definition of government … [t]hat every power vested in a government is in its nature sovereign, and includes, by force of the term, a right to employ all the means requisite and fairly applicable to the attainment of the ends of such power, and which are not precluded by restrictions and exceptions specified in the Constitution ….”

As to the “necessary and proper” clause, it was but a restatement of the “implied powers” principle and defined the means the government might choose to achieve its constitutionally authorized objectives. He rejected Jefferson’s restrictive interpretation as unprecedented and radical. The proper constitutional test, he wrote, was, “If the end be clearly comprehended within any of the specified powers, and if the measure have an obvious relation to that end, and is not forbidden by any particular provision of the Constitution, it may safely be deemed to come within the compass of the national authority.” Within those broad boundaries, all discussions were about expediency, not right.

Jefferson, Madison, and Randolph lost the argument when Washington signed the Bank Bill. Jefferson sarcastically characterized Hamilton’s views in a letter to Senator Edward Livingston in 1800, after Congress chartered a mining company.  He derided the exercise by comparing the constitutional claims of the law’s supporters to a popular nursery rhyme: “Congress are authorized to defend the nation. Ships are necessary for defense; copper is necessary for ships; mines, necessary for copper; a company necessary to work the mines; and who can doubt this reasoning who has ever played at ‘This is the House that Jack Built’? Under such a process of filiation of necessities the sweeping clause makes clean work.”

It was clear to all that the debate was not just about the Bank, but about the extent of Congressional power and, indeed, about the nature of the Union itself. That debate would continue, although the forum shifted from the Congress and cabinet to the Supreme Court. The Bank’s charter expired in 1811, just in time for the War of 1812 to begin. The straightened financial situation in which the essentially bankrupt Madison administration eventually found itself stood in sharp contrast to the order that the Bank of North America had produced in the latter years of the Revolutionary War. Calls went out to charter the Second Bank of the United States. Even President Madison had once more changed his mind and, after one veto over practical objections, signed the bill to charter a new bank in 1816. Madison conceded that he repeated actions of the different branches of the government in support of the authority of the federal government to charter corporations had mooted his constitutional scruples over the matter, especially since those actions were supported “by indications…of a concurrence of the general will of the nation.” Jefferson never overcame his suspicion of the Bank, but, once retired from public office, agreed with Madison’s reasoning.

The Bank law was eventually challenged in McCulloch v. Maryland in 1819 and Osborn v. Bank of the United States in 1824. Chief Justice John Marshall, as was his wont in other important cases, once more borrowed extensively from Hamilton’s constitutional reasoning in upholding Congress’s power to charter the Bank. There the matter stood until the last round, between the Whig-controlled Senate and President Andrew Jackson in 1832. Jackson’s veto message was a ringing indictment of the financial interests that the Bank’s opponents since at least Jefferson had seen as the malevolent invisible hand directing the Bank’s actions. His economic provincialism favored hard money over paper. Moreover, Jackson dismissed the Supreme Court’s view on the constitutional issue as non-binding on him as the head of a co-equal branch. Finally, Jackson’s general inclination in favor of states’ rights and limited and defined powers of the central government made a central bank suspect.

The Jeffersonian strict constructionists of federal power thus won the battle over the central bank, a result not reversed until 1913 through the creation of the Federal Reserve Bank system. Of more significance and permanence, however, has been the across-the-board triumph of the Hamiltonian view of Congress’s powers. This is manifested not just in the broad reading of “implied” powers and the necessary-and-proper clause, but in the expansive reach of Congress’s express powers to tax and spend for the general welfare and to regulate interstate commerce. Add to that the general acceptance of broad implied powers for the executive branch, and it becomes obvious how thoroughly Hamilton’s nationalism has overwhelmed Jefferson’s romanticism about a republic of yeoman farmers and artisans governed by their state and local bodies and by a national Congress with strictly limited powers.

An expert on constitutional law, and member of the Southwestern Law School faculty, Professor Joerg W. Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. He has also spoken on business law and contemporary constitutional issues before professional and community forums, and serves as a Constituting America Fellow. Read more from Professor Knipprath at: http://www.tokenconservative.com/.

 

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March 26: The Decision Of 1789: Congress, The President & Removal Of Presidential Appointees – Guest Essayists: David Alvis & Flagg Taylor

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Article II Section 2 of the Constitution lays out a very detailed procedure for appointment: “and he shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the president alone, in the courts of law, or in the heads of departments.” (U.S. II.2.2) While the appointment of executive officers is very important to the administration of government, equally, if not more important, is the issue of who can remove these officers.  Unfortunately, Article II says nothing about the removal of officers.  In fact, there was no discussion of the removal of executive officers in the debates of the Constitutional Convention of 1787. Not until the first Congress was the issue of the removal power debated. Those debates, known commonly today as “the Decision of 1789,” serve as the touchstone for almost all subsequent arguments in American politics over who controls the administration.[1]

The Decision of 1789

Near the beginning of its very first session, Congress proposed to create its first executive departments in order to attend to the critical business facing the infant nation: Treasury, War, and Foreign Affairs. With the Foreign Affairs (later the Department of State) on the table first, James Madison offered a motion that would prove to be the keystone for the discussion: “that there shall be established an executive department, to be denominated the department of foreign affairs; at the head of which there shall be an officer, to be called, the secretary to the department of foreign affairs, who shall be appointed by the president, by and with the advice and consent of the senate; and to be removable by the president…” (emphasis mine). [2]   For the next six days, the First Congress would undertake one of the nation’s most sophisticated and informative constitutional debates over the organization of the executive branch in American history. During the course of their discussion, a total of four positions on the issue of removal evolved:

(1) Impeachment:  impeachment is the only mode of removal recognized by the Constitution and Congress cannot confer any other mode;

(2) Advise and consent: the Constitution vests the removal power jointly in the president and the Senate and Congress cannot confer any other mode;

(3) Congressional delegation: the Constitution is silent or ambiguous about where it vests the removal power, so:

(a) Congress is free to decide but prudently it ought to vest it in the president, or

(b) Congress has some latitude but ought not vest it in the president alone

(4) Executive power theory: the Constitution vests the removal power in the president alone.[3]

Within each position above lies a particular interpretation of the balance of power between the legislative and executive branch that could have fateful consequences for constitutional government in the United States.  The members appeared to clearly understand the ramifications of their position.  They were not just deciding the level of accountability for the Secretary of Foreign Affairs; they were determining whether executive power would lie squarely within the president’s authority or if Congress would control it, at least in part.

According to adherents of the first position, impeachment was the only mode of removal recognized by the Constitution.  This position rested on a literal construction of the Constitution.  Since the Constitution does not mention anything about removal, then there is no removal power.  Impeachment, however, is mentioned in the Constitution.  Consequently, impeachment is the only means by which the removal of an executive officer could be done.  While this argument seems plausible on the surface, the consequences of this position would have dramatically altered the institutional development of the American presidency.  As one scholar puts it:

To have declared the magistracy permanent except for the right of removal by impeachment would necessarily have made the department heads the real executive. An incoming President would have found in office [individuals] whose position, so far as he was concerned, was assured. They would have ideas of their own and connections of their own. Since he could not control them, they would very naturally act in accordance with these ideas in carrying out their duties.[4]

Proponents of this view clearly understood this. They were not just strict constructionists; they had an underlying motive.  Supporters of the impeachment theory feared the concentration or expansion of executive power at the expense of the other branches. As James Jackson of Georgia noted, “If he [the president] has the power of removing and controlling the treasury department, he has the purse strings in his hand; and you only fill the string box, and collect the money of the empire, for his use. The purse and sword will enable him to lay prostrate the liberties of America.”[5] If removal of executive officers were limited to impeachment by Congress, the president would have very little control or influence over the administration.

Proponents of the second position, “advise and consent,” believed that the Constitution vested removal power jointly in the president and the Senate. The removal process should follow the same procedure as that explicitly described in the appointment process under Article II. To appoint an officer of the administration requires the consent of the Senate, so should the removal of an executive officer. As Theodorick Bland put it on the first day of the debate, “The constitution declares that the president and the senate shall appoint, and it naturally follows, that the power which appoints shall remove also.”[6] After all, aren’t the powers of appointing and removing related, just like hiring and firing?  Like the impeachment position, proponents of this position also had a particular view of the balance of powers between Congress and the president. The president and Congress share in the duty of administration because the execution of law is ministerial to the process of law making. Elbridge Gerry of Massachusetts elaborated this view for the benefit of other members:

We [Congress] have the power to establish offices by law; we can declare the duties of the officer; these duties are what the legislature directs, not the president; the officer is bound by law to perform these duties… Suppose an officer discharges his duty as the law directs, yet the president will remove him; he will be guided by some other criterion; perhaps the officer is not good natured enough…because he is so unfortunate as not to be so good a dancer, as he is a worthy officer, he must be removed.[7]

For Gerry and others this arrangement made sense in light of their view that the administration of the law is inseparable from the creation of law. Administering the law is really a joint responsibility of the president and Congress since it is the president’s task to execute the law and the legislature’s responsibility to see that its laws are faithfully executed. Consequently, administrators should not be removed in the same way they are appointed — with Congressional approval.

Other members of the First Congress agreed that the legislature played a central role when it comes to the administration of law, but they took a different position over the removal power process.  Known as the “congressional delegation position,” this group argued that the Constitution’s silence over the vesting of the removal power was really an invitation to give Congress a discretionary authority over the removal power. Congress could either retain the removal authority solely for itself or it could vest this power wherever it pleases. Roger Sherman of Connecticut explained the rationale behind this position: “As the officer is the mere creature of the legislature, we may form it under such regulations as we please, with such powers and duration as we think good policy require; we may say he shall hold his office during good behavior, or that he shall be annually elected; we may say he shall be displaced for neglect of duty, and point out how he should be convicted of it—without calling upon the president or senate.”[8] What Congress creates, Congress can take away.  Administering the law, moreover, is not really a shared responsibility with the president; it is ultimately the responsibility of Congress.  Proponents of this position were actually divided into two groups when it came to deciding where to vest the removal power over the secretary of Foreign Affairs.  Some thought Congress should retain the power while others thought it would be more convenient to permit the president to exercise the power in this particular situation.  In either case, however, their fundamental assumption was the same: the power of removal fundamentally belongs to Congress.

Finally, one group of representatives argued that the Constitution vested the removal power in the president alone. This position is often labeled “the executive power theory.”[9]  Elected by the people, the president is alone accountable to the public for the execution of the law. As James Madison put it, “If the president should possess alone the power of removal from office, those who are employed in the execution of the law will be in their proper situation, and the chain of dependence be preserved; the lowest officers, the middle grade, and the highest, will depend, as they ought, on the president, and the president on the community. The chain of dependence therefore terminates in the supreme body, namely, in the people.”[10] According to this view, Congress has the power to make law but it does not have the authority to interfere with the execution of law.  If Congress participated in the removal process either by exercising the removal power itself or by requiring its advice and consent to removal, the legislature would have overstepped its bounds within the separation of powers. As the vesting clause of Article II states: “The executive power shall be vested in a president of the United States of America.” True, as the proponents of the advice and consent position would maintain, the Constitution does occasionally blend the powers as when it includes the Senate in the appointment process.  But those occasions are really exceptions to the rule that ought to be construed strictly where the Constitution makes the role of Congress explicit.[11] Because the Constitution is silent on the removal power, it should be assumed that this power belongs to the president alone. Asked in the House whether he thought removal was executive “by nature,” Madison responded: “I conceive that if any power whatsoever is in its nature executive it is the power of appointing, overseeing and controlling those who executive the laws.  If the Constitution had not qualified the power of the president in appointing to office, by associating the senate with him in that business, would it not be clear that he would have the right by virtue of his executive power to make such an appointment.”[12]

Scholars who have looked to the debates of the First Congress for a conclusive statement on the issue of the removal power have unfortunately been disappointed.  To avoid a stalemate over the legislation, the House carefully developed a compromise that would give the president power to remove in effect while leaving the constitutional logic for vesting this power in the president unclear – Congressional delegation or inherent executive power? This clever parliamentary maneuver successfully garnered enough votes to get the bill through Congress, but it did not resolve the issue of the removal power in terms of principle.

At stake in this struggle over removal power was more than the interior design of a particular department; this debate would shape the way in which the two elected branches of the federal government would relate to one another under the system of the separation of powers. For those who favored a significant role for Congress in the removal power, the concern was to at least check, if not entirely control the executive’s enforcement of law.  Supporters in this camp believed that Congress had a major stake in law enforcement because the execution of law should complement the intention of the lawmaker.   Unchecked, the executive might be able to rewrite the law merely by controlling how the law was enforced.  Supporters of the executive power theory on the other hand believed that execution of law was entrusted solely to the discretion of the executive.  If the enforcement of law deviated from the intentions of certain lawmakers, it was the task of either the Courts or voters to correct the interpretation.  While no one member of the House offered a compromise that satisfied all parties, it is clear that any mutual accommodation between the pro-Congress and pro-executive sides of this issue would require an arrangement whereby Congress could prevent the executive from contravening the clear intent of the law while at the same time recognizing the independent discretionary authority of the president.  Of course, the simple solution would be to make very specific laws, but this is easier said than done particularly in a very complex world of regulatory administration.  Given that most laws do not execute themselves, administration often requires discretionary choices.  How to preserve the balance of powers in light of the growing complexity of federal administration remains an unsettled question.

David Alvis is an Associate Professor of Government at Wofford College. He has published two books including The Removal Power Controversy, 1789-2010 from University of Kansas Press (with Jeremy Bailey and Flagg Taylor) and Statesmanship and Progressive Reform from Palgrave MacMillan Press (with Jason R Jividen), along with numerous articles on American politics and political theory. 

Flagg Taylor is Associate Professor of Political Science at Skidmore College.

[1] This essay is adapted from our book: The Contested Removal Power, 1789–2010 by J. David Alvis,. Jeremy D. Bailey, and F. Flagg Taylor IV. (Lawrence, University. Press of Kansas, 2013).

[2] De Pauw, Linda Grant, Charlene Bangs Bickford, Kenneth R. Bowling, and Helen E. Veit. 1972. Documentary history of the First Federal Congress of the United States of America, March 4, 1789-March 3, 1791. Baltimore: Johns Hopkins University Press, 726. (DHFFC)

[3] See Saikrishna Prakash, “New Light on the Decision of 1789,” 91 Cornell L. Rev. 1021 (2006)

[4]C. Thach, Jr., The Creation of the Presidency, 17751789 (Baltimore, Md.: Johns Hopkins University Press, 1969)

[5] Ibid., 1002.

[6] DHFFC, Debates I, 737. Bland made a motion on May 19 to add “by and with the advice and consent of the senate” which was defeated. See Ibid., 738.

[7] DHFFC, Debates II ,1022-1023.

[8] Ibid., 917.

[9] Prakash

[10] Ibid., 925.

[11] DHFFC – Debates II, 869

[12] ibid., 868

 

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March 23: Statesmanship & The Distinguished Oratory Of Daniel Webster, Henry Clay, John C. Calhoun – Guest Essayist: Brian Pawlowski

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Taken together, the political debates of Henry Clay, Daniel Webster, and John Calhoun guided American politics like no other group save the Founding generation. As Merrill D. Peterson put it, “their arrival on the political stage announced a new era of American statesmanship… they were representatives, spokesmen, ultimately personifications, of their respective sections: East, West, and South.”[i] History would proclaim them the “Great Triumvirate” in recognition of the awesome influence and sway they held for so long in national politics. They led every great debate about the union and its future from the Missouri Compromise of 1820 through the Compromise of 1850. Like John Adams and Thomas Jefferson, who Benjamin Rush famously called the north and south poles of the Revolution, they became the voices of American geography and symbolized the sectional strife always sitting ominously atop the union. Yet within two years of the 1850 compromise all three titans would be gone, passed from the scene just as the searing sectional debate about Kansas and Nebraska was taking shape. The union was about to be swallowed up in the maelstrom of sectionalism they had worked for so many decades to forestall.

Abraham Lincoln in a eulogy for Clay, said that “In all the great questions which have agitated the country, and particularly in those great and fearful crises, the Missouri question—the Nullification question, and the late slavery question, as connected with the newly acquired territory, involving and endangering the stability of the Union, his has been the leading and most conspicuous part” and with allusion to Pericles and Shakespeare said that Clay’s “career has been national—his fame has filled the earth—his memory will endure to `the last syllable of recorded time.’” Lincoln would claim Clay as his idol of statesmanship. Many others from different parts of the country would claim Webster or Calhoun. Even in death their ideas continued to shape the contours of debate.

Each man earned various monikers in his life. Clay of Kentucky was “the Great Compromiser” or the “Star of the West” and was “independent alike of history, or the schools… He has never studied models, and, if he had, his pride would have rescued him from the fault of imitation. He stands among men in towering and barbaric grandeur, in all the hardiness and rudeness of perfect originality, independent of polish and beyond the reach of art.”[ii] He was a fiery orator, quick on his feet, never utilizing notes or text, and utterly dedicated to preservation of the union.

Webster of New Hampshire was “the Yankee Demosthenes” or “Godlike Daniel” and was “a man of deep sentiment, so sentimental about the past, ancestors, the common law, hearth and home, his college, Washington, and the Constitution.”[iii] He was conservative in politics, a passionate orator, and utterly dedicated to preservation of the union.

Calhoun of South Carolina was the “Young Hercules”, “a fervent nationalist who took the whole country as his constituency” and “one of the master-spirits who stamp their name upon the age in which they live.”[iv] His “mind and character – hard, grave, inflexible – were all one” and he had attained his station through “tenacious self-discipline and driving ambition.”[v] He was the spokesman of the South, a stern orator who meticulously prepared his speeches, and was utterly dedicated to the preservation of a union that recognized the rights of the states and those of his fellow southerners. In the absence of that recognition, he was prepared for peaceable disunion.

From the first, their fame emanated from their oratory, which once held a far more prominent place in politics than it does today. To be sure, thirty second soundbites and poll-tested stump speeches are a product of current technology, never-ending news cycles, and the perceived attention span of voters. But the Triumvirates’ time was different. Addresses spanned hours, sometimes days, and were printed often verbatim in newspapers or pamphlets. Senate and House galleries would be packed, standing room only being too generous a description to describe the nooks and crannies people contorted themselves into just to hear one of the Triumvirate speak.

Perhaps none spoke with more at stake than in 1850. The union had held, navigated through the choppy sectional waters of the territorial, tariff, and slavery questions. But fear of disunion in 1850 was palpable. California was now American territory as were New Mexico and Utah, all got from the Mexican Cession. California was filled with gold, immigrants, but not slaves, and was ready for statehood. Utah and New Mexico were more barren but also had to be organized. And so the question: would slavery be allowed in these new places? The sectional balance between free and slave states was threatened.

Clay spent three weeks in thought and came to the floor of the Senate on 29 January to present his compromise measures. In brief, and presented as the first “omnibus bill”, they consisted of the admission of California as a free state, the settlement of the boundary between Texas and New Mexico, federal assumption of Texas public debt, allowance for the slavery question to be decided in New Mexico and Utah territories through popular sovereignty, abolition of the slave trade in Washington DC, and a stronger fugitive slave law. Clay knew many of the provisions would be unpalatable for many but he urged their passage and did so with a remarkable visual aid: a piece of George Washington’s coffin. Both Clay and Webster venerated Washington. Clay told the Senate that “it was a warning voice, coming from the grave to the Congress … to beware, to pause, to reflect before they lend themselves to any purposes which shall destroy the Union.”[vi] He went on for two days, at every turn stressing the vital importance of preserving the union.

There was, indeed, something in this mix for everyone to hate. And John Calhoun hated almost all of it. Old, frail, and unable to write or speak Calhoun dictated his (and largely the South’s) response to Clay’s measures. Touching up the draft with his own pen he then turned it over to Senator James Mason of Virginia to deliver it on the floor. On 4 March Calhoun was literally carried into the Senate chamber where he sat, cloaked in black, as Mason gave the speech.

Calhoun’s words mirrored his physical state. They were dark, haunting, ominous. They portrayed a south beaten down by the weight of northern opinion and economic interests. His speech put blame for the crisis squarely on the north and its disrespect, disregard, and disdain of southern ways. He stated candidly, “I have, Senators, believed from the first that the agitation of the subject of slavery would, if not prevented by some timely and effective measure, end in disunion.” His proposed solution was for the north to “do justice by conceding to the South an equal right in the acquired territory, and to do her duty by causing the stipulations relative to fugitive slaves to be faithfully fulfilled–to cease the agitation of the slave question, and to provide for the insertion of a provision in the Constitution, by an amendment, which will restore to the South in substance the power she possessed of protecting herself”. Calhoun believed that peaceful separation was possible and, now, likely. He closed, “I have now, Senators, done my duty in expressing my opinions fully, freely, and candidly, on this solemn occasion. In doing so, I have been governed by the motives which have governed me in all the stages of the agitation of the slavery question since its commencement. I have exerted myself, during the whole period, to arrest it, with the intention of saving the Union, if it could be done; and, if it could not, to save the section where it has pleased Providence to cast my lot, and which I sincerely believe has justice and the Constitution on its side.”[vii] It would be his last speech in the Senate. Calhoun would die by the end of March before the compromise measures finally passed.

Only three days later on 7 March Daniel Webster sought to stem the tide of pessimism and disunion. As usual, the galleries were overflowing, people eager to hear Webster persuade the country to save their union. He spoke for nearly four hours. He began, “I wish to speak to-day, not as a Massachusetts man, nor as a Northern man, but as an American, and a member of the Senate of the United States… I have a part to act, not for my own security or safety, for I am looking out for no fragment upon which to float away from the wreck, if wreck there must be, but for the good of the whole, and the preservation of all; and there is that which will keep me to my duty during this struggle, whether the sun and the stars shall appear, or shall not appear for many days. I speak to-day for the preservation of the Union. “Hear me for my cause.”[viii]

Knowing he would reap a whirlwind of scorn from northern and abolitionist supporters he pleaded for compromise by asking that northerners recognize slavery as a reality where it existed, that they respect this reality and the south, and that they play their part in fulfilling the requirements of the fugitive slave law. The only alternative was disunion and war. Webster would go on in July of that year to give another speech, his farewell address, which was more sympathetic to the antislavery cause and in which he again urged the compromise measures be adopted. These two speeches moved opinion in the Senate as ultimate passage of the compromise would indicate but his own political reputation was severely damaged.

At the end of July Henry Clay watched as the measures failed to pass. In debilitating condition from tuberculosis, Clay vowed not to abandon his effort. But he could not continue. He left the Senate and traveled east to try and recuperate from the illness wracking his body. The task of passing the compromise fell to a young Senator from Illinois, Stephen A. Douglas. With Clay’s influence, he determined to vote on each part of the compromise individually and successfully put together majorities for every measure. All passed by the end of September and were signed into law. For many, the union seemed safe.

Clay, Webster, and Calhoun would not live to see the debate revived over the Kansas-Nebraska Bill. And as historian David Potter has rightly observed, the Compromise of 1850 was ultimately more like an armistice, marking time until the next territorial question brought the union under threat once again. Then, and in 1860, there were those who said that had the Triumvirate been still in the Senate the crises would have been averted. They were not there. And the country would endure a brutal Civil War over the very same issues Clay, Webster, and Calhoun had debated themselves. And it can be said that all three were, then and ultimately, wrong in their view of and the compromises they made with the moral evil of slavery. But in their hands, from the early to mid-1800’s the continued existence of the union, though in imperfect form, had been secure.

Brian Pawlowski is a member if the American Enterprise Institute’s state leadership network and was a Lincoln Fellow at the Claremont Institute for the Study of Statesmanship and Political Philosophy. He has served as a Marine Corps intelligence officer and is currently pursuing a Master’s Degree in American History.

[i] Merrill D. Peterson, The Great Triumvirate: Webster, Clay, and Calhoun (New York: Oxford University Press, 1987), 5.

[ii] Ibid. 8

[iii] Ibid. 37

[iv] Ibid. 27

[v] 27

[vi] https://www.senate.gov/artandhistory/history/minute/Clays_Last_Compromise.htm

[vii] http://college.cengage.com/history/ayers_primary_sources/calhoun_speech_compromise_1850.htm

[viii] https://www.dartmouth.edu/~dwebster/speeches/seventh-march.html

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March 22: Culture Of Debates On The House & Senate Floors – Guest Essayist: Scot Faulkner

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Patrick Henry cautioned, “The liberties of a people never were, nor ever will be, secure, when the transactions of their rulers may be concealed from them.”  In their respective chambers, the U.S. Senate and U.S. House of Representatives have developed unique ways to air differences and make sure information is shared.  The Legislative Branch’s culture of debate hold’s power accountable and preserves our nation’s civic culture.

The differences between the U.S. Senate and U.S. House of Representatives are very apparent after just watching them for a few minutes.

The U.S. Senate is informal.  Senators and staff wander about, mingle, and many conversations are happening at once.  Most procedural actions are by unanimous consent.  Speeches can go on and on.

The U.S. House of Representatives is very structured.  Everything is governed by rules that govern how time is spent, down to minutes.  It is the only way 435 voting, and five non-voting, Representatives can balance discourse with action.

Since the first Congress, the differences between the Senate and House have framed important national debates.

The Senate evolved into the chamber for debate.  Less people, drawn from the political elite until the 17th Amendment to the Constitution, allowed for greater latitude in allotting time for discussion.

The years 1810 through 1859, were a period known as the “Golden Age” of the Senate. Three of the greatest senators and orators in American history served during this time: Henry Clay (Kentucky) articulating the views and concerns of the West, Daniel Webster (Massachusetts) representing the North, and John C. Calhoun (South Carolina) representing the South.

During these years, these Senate “giants” debated and resolved major issues, holding a divided nation together before the Civil War: the Missouri Compromise of 1820, the nullification debate of 1830 (Haynes-Webster debates), and the Compromise of 1850.

During this “Golden Age” Washington’s elite gathered in the Senate chamber to watch the impassioned oratory and the great compromises take place. The public filled the Senate’s “Ladies’ Gallery” and even sat on couches along the walls of the Senate Floor.

A major step toward supporting this debate culture occurred in 1806, when the Senate dropped using a simple majority to move “Previous Question” to stop debate.  The first “filibuster”, from the Dutch term “vrijbuiter” – pirate or pirating the proceedings, happened on March 5, 1841 over the firing of Senate printers.  Grinding Senate proceedings to a halt was viewed as an important way to highlight concerns and force a more in-depth consideration of policy.

In 1917, the Senate established “cloture” as a way to limit debate.  Initially, cloture required a 2/3 vote. This was changed in 1975 to 3/5, the current 60 votes required.

The House found other ways to expand debate within its strict rules.  Members can “revise and extend” their remarks.  This means that a one minute speech can become a multi-page discourse in the “Congressional Record”, the permanent and official record of Congressional activities.

On March 19, 1979 the Cable-Satellite Public Affairs Network (C-SPAN) began live broadcast of the House of Representatives.  Live coverage of the Senate began on June 2, 1986.  Television fundamentally expanded the Congressional audience.  Now people, beyond the small public viewing galleries, could watch what happened instead of reading about it.

Republicans embraced the role of television faster and more effectively than the Democrats.  They turned the opening one minute speeches into street theater.  They used posters and model war planes to create riveting moments highlighting major issues.  Republicans also took the obscure device of the “Special Order” to spend hours educating the electorate on issues after official House business ended for the day.

During the first years of C-SPAN Republicans strategically orchestrated their message through an informal group called the Chesapeake Society. This weekly gathering, co-lead by senior legislative staff and Members, developed themes, wrote talking points, and assigned roles for the House’s “Golden Age” of conservative advocacy.

Representatives John Ashbrook (R-OH), Bob Bauman (R-MD), and John Rousselot (R-CA), and their top advisors, collaborated with Phil Crane (R-IL), Bob Dornan (R-CA), Jack Kemp (R-NY), Larry McDonald (R-GA), Don Ritter (R-PA), Gerald Solomon (R-NY), Bob Walker (R-PA), and seventy other Members, to dominate C-SPAN in opposing President Jimmy Carter and House Democrats. Their effective use of the media is credited with helping lay the ground work for the Reagan Revolution.

A second “Golden Age” of House conservatives was led by Newt Gingrich (R-GA) and his Conservative Opportunity Society. They exposed an array of scandals that grew to symbolize the corruption of forty years of Democrat rule in the House.  Their most famous use of visuals came on October 1, 1991. Rep. Jim Nussle (R-IA) addressed the House wearing a paper bag over his head. He tore off the bag stating he was ashamed to show his face in the wake of House corruption.  These dramatic moments led to the 1994 landslide that propelled Republicans to power for the first time since 1954.

Democrats found their own ways to use the power of the camera.  On June 22, 2016, sixty Members staged a sit-in on the House Floor to dramatize the lack of gun control legislation.  Republicans turned off the cameras and the lights.  Democrats used their cellphone cameras in a social media phenomenon.  On February 7, 2018, Nancy Pelosi (D-CA) used her unlimited time prerogative as Minority Leader to turn the usual “house keeping” procedures of the House into an eight hour marathon speech focusing attention on Deferred Action on Childhood Arrivals (DACA).

Formal procedures, precedents, and tradition, linked to ever evolving technology, guarantees that the role of debate remains a viable part of America’s representative democracy in the 21st Century.

Scot Faulkner served as Chief Administrative Officer of the U.S. House of Representatives and as a Member of the Reagan White House Staff.  He earned a Master’s Degree in Public Administration from American University, and a Bachelor’s Degree in Government from Lawrence University

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March 21: Federalist 63: The Senate And Our National Character – Guest Essayist: Forrest Nabors

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Perhaps the most important advantage of the Senate to the United States was that it would become the repository of our national character, which is explained in Federalist 63. By intention Americans would be able to recognize themselves in the Senate because senators would be of themselves, but because they would be chosen from among the best of us, the Senate would become an example for the nation and the jewel of the American republic.

The Senate was the place, John Adams wrote, where the naturally talented could be gathered and made useful to the country. Nature, he observed, deposits talent at random in all parts of human society, but the practice of the world had been to raise into high places only the favored progeny of the rich and titled. America would put a new and different rule into practice. Rather than frustrating the ambitions and wasting the talents of the naturally gifted, free America would welcome their rise from whatever precinct of American society into which they might be born. Merit and not birth would be the basis for acceptance into high place. Any might enter the Senate with sufficient years of age and citizenship and whose ability had earned the recognition of peers in state government. Because other nations suppressed the rise of natural talent, the talented were alienated, could became dangerous enemies of their own country and had to be watched and sometimes repressed. But because high position in America was open to merit, the government befriended the naturally talented. Gratitude would bind them more closely to country; patriotism would reinforce ambition. For these reasons the members of the Senate in republican America, it was hoped, might even out-perform the best of old-world aristocracies.

The ancient republics that had endured the longest were Carthage, Sparta and Rome, Publius reminds us in Federalist 63. All had senates and the other republics that did not have them, perished. In these senates the unique character of a nation was distilled, developed and emerged as something of the people but better than the people. That refined national character was then transferred back into the people, improving them. For example, the customs of Roman senators were distinctively Roman, but their outstanding conduct refined those customs, which they gave back to the people in better form, as Livy’s History of Rome shows us.

Once, a rare military disaster by a massive army of Gauls left Rome nearly defenseless. Unable to prevent the investiture of the city, the people retreated to higher ground on the Capitol. But many of their old senators chose to remain below in front of their estates, resplendent in their richest clothes, wearing the insignias of their high rank, seated in thrones, waiting to die. When the Gauls entered the city and met them, the splendor and calm of these Romans made them pause. One Gaul stroked the beard of Papirius, who, in return, brought down his ivory staff on the invader’s head. This defiant act broke the charm over the Gauls and precipitated the slaughter. One by one, Livy wrote, the senators calmly met their fate in this dignified pose. All of this was in full view of the people, who thereafter rallied and utterly destroyed the Gauls.

In contrast to the Roman people, Jefferson wrote, the American people were less ferocious and more magnanimous, less harsh and more gentle. We were free and brave without the Roman tendency to oppress. All of those qualities can be found in the proceedings of the American Senate in the nineteenth century, but they are found in a refined shape and form a uniquely American eloquence. As the framers of our Constitution intended, the intelligence and education of those senators rivaled the best in the world but a great many of them began their lives as impoverished of life’s comforts as Lincoln and Jackson were. In those remembered and many forgotten speeches delivered in our Senate during the great crises of bygone times, a literate American cannot fail to see two things; first, our parentage; second, the wellspring of our national pride. We can see ourselves in them and we can see that they are the best of us.

The Senate is one of the few places in America where the individual virtues peculiar to aristocracy were intended to persist and did last for a long time, for the good of the country. When our greatest crisis was tearing our nation in half just before the Civil War, senatorial decorum was preserved, though the differences between the two sides were severe and touched the fundamental principles of our government. In contrast, order was often lost, sometimes approaching bedlam, in the House of Representatives. Upon the commencement of secession, American senators graciously took their leave of each other as friends, like Palamon and Arcite in Two Noble Kinsmen, each knowing that soon they would face off against each other in a struggle to the death. To a thorough democrat, such conduct is madness or stupidity, but in national crisis, these peculiar virtues produce and inspire steadiness and check brutishness. In crisis Americans are famous for forgetting their differences and pulling together, but the Senate was designed to be our natural rallying point. In the members of that body we were meant to see the best of our country, calmly reminding us of who we are as a people, and inspiring us by their example to follow the path of our duty.

Forrest Nabors is Associate Professor of Political Science at the University of Alaska Anchorage and is the author of From Oligarchy to Republicanism: The Great Task of Reconstruction.

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March 20: Federalist 62: The Structure And Role Of The Senate – Guest Essayist: Forrest Nabors

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The notes of the Federal Convention that framed the Constitution of the United States in 1787 show that from the beginning of their deliberations the delegates generally assumed that the legislative branch of the general government would be bicameral. They did debate how the legislators of each house would be chosen and how legislative districts would be drawn, which was settled by the so-called “Great Compromise” between the large and small states. But they did agree without debate that the national legislature would be divided into a lower and upper house. The next two essays are about the upper house, the Senate of the United States.

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March 19: Federalist 62 & 63: Senate Powers For Soundness, Order, Stability Of The Congress – Guest Essayist: Joseph M. Knippenberg

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In Federalist #62 and #63, Publius (the pseudonym adopted by authors Alexander Hamilton, James Madison, and John Jay) makes the case for and deals with objections to the Senate as the second of Congress’ two legislative chambers.  Then, as now, our author (in this case, scholars presume, James Madison) has to address a presumption in favor of straightforward and simple democracy, which would mandate a popularly elected legislature, offering proportional representation, whose members serve terms short enough to remind them of their dependence upon the voters.  While those characteristics adequately describe the House of Representatives, Senators were then to be elected indirectly, by state legislatures, for relatively long (six year) terms.  What’s more, each state was entitled to two Senators, so that the largest states had no more influence in that chamber than the smallest states.

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Happy Birthday, James Madison! March 16, 1751 – Federalist Papers 51 & 53 – How The American People Hold Congress Accountable – Guest Essayist: Joerg Knipprath

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Federalist 51 is part of a series of essays in which James Madison addressed the principle of separation of powers and its relation to the preservation of liberty and prevention of tyranny. Federalist 53 discusses the significance of the length of service of the House of Representatives to competent republican government.

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March 15: Federalist 10: Political Stability And Good Governance – Guest Essayist: Richard Wagner

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Federalist No. 10: Controlling the Violence of Faction

The central idea behind the American constitutional republic is expressed in her first constitutional document, the Declaration of Independence: governments derive their just powers from the consent of the governed. This idea is simple to state and hard to implement.

We must recognize that ideas can’t implement themselves. They can be implemented only within some political structure. All political structures entail a tendency for governments to act on behalf of factions within the population, and then to assure us that they are promoting the common interest all the same.

In Federalist No. 10. Madison tells us that “by faction, I understand a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.”

Madison was referring to the ability of some people to use the powers of government to their advantage by imposing disadvantages on other people. Faction is a quality of human nature that resides in our abilities to see our favored projects as especially beneficial for society. Someone might think a marshland would make a wonderful wildlife refuge. That person could always buy the land to create the refuge, perhaps forming a corporation to do so. Doing this, however, would be costly to those who desire the refuge. A cheaper alternative might be to petition a legislature to fund the refuge. In this way, taxpayers who do not value the refuge would be forced to support the refuge. This situation illustrates faction at work: a small but influential group of people can secure support for their favored projects by forcing other people to pay for them.

To some extent, virtue within the citizenry can limit the reach of faction as people refrain from using their powers to exploit other citizens. Yet interest could always override virtue, due to the ability of people to convince themselves that their pet projects are invariably publicly beneficial. For this reason, Madison looked to the constitutional structure of government as an instrument for limiting the reach of faction.

In this respect, the American Constitution featured a strong preference for local government, where people knew one another, over national government where most people were strangers. The American Constitution sought to limit faction by explicitly enumerating the powers of the federal government, with everything not enumerated being limited to states and to individual citizens. For the past century or so, however, this Constitutional limitation has pretty much given way to plenary authority by the federal government.

Between the Revolution initiated in 1776 and the Constitution established in 1789, America was governed under Articles of Confederation. The Articles recognized 13 independent states along with establishing a Continental Congress. That Congress, however, had no ability to tax and regulate individual citizens. All it could do was request support from state legislatures. In February 1787, the Continental Congress established a Convention to meet in Philadelphia to recommend repairs to the Articles. What emerged from that Convention, however, was not repair but a new Constitution that established a national form of government.

What ensued was a two-year period of intense controversy over ratification of the new Constitution. The 85 essays that comprise what we now know as The Federalist were a series of newspaper articles written to support the Constitution against opposition from those who wanted to continue with the Articles. Despite the ensuing controversy, we should note that both proponents and opponents of the new Constitution agreed that the prime purpose of government was to secure individual liberty. They also recognized that intrusive government was the prime danger to liberty, even though it was also recognized that some government was necessary to preserve and protect the American system of liberty.

Madison sought to explain how the proposed Constitution entailed a structure of fragmented and limited powers that would limit the damage created by faction. In being founded on a Constitution of liberty, the American republic expressly rejected the system of feudal duties and obligations that characterized the European societies of the time. Starting around the time of Theodore Roosevelt, however, the Progressivist movement within America has been striving to reinstate some of the status-based relationships of feudal times. This fits the Progressivist vision of government as the principle source of goodness in society. A battle for the soul of America has been underway for about a century, with the principle fault line being whether government is a virtuous artifice that is central to human flourishing, and with faction enabling governments to do their inherently good work, or whether government is a necessary evil that is always in danger of trampling on individual liberty.

Richard E. Wagner is Holbert Harris Professor of Economics at George Mason University.

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March 14: James Madison: Guiding The Bill Of Rights Through The U.S. House Of Representatives – Guest Essayist: Tony Williams

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James Madison and the Bill of Rights

On June 8, 1789, a few months after the convening of the First Congress, Representative James Madison arose on the floor and made a speech introducing amendments that would come to be known as the Bill of Rights.  Madison delivered a masterpiece of rhetorical statesmanship that attempted to persuade the Congress to pass a Bill of Rights to protect liberty and produce unity in the new government.

Madison had surprisingly opposed a Bill of Rights when it was introduced at the Constitutional Convention by George Mason and advocated by the Anti-Federalists throughout the ratification debate in the states.  During a long exchange with Thomas Jefferson, then in Paris, Madison privately articulated his reasons for opposing a Bill of Rights.

Most of the Madison’s reasoning was based upon the fact that he believed, along with James Wilson and Alexander Hamilton, that the Founders had created a natural rights republic with enumerated powers in a written constitution.  The rights of mankind were built into the fabric of human nature by God, and government had no powers to alienate an individual’s rights.  He also had witnessed that they were often just “parchment barriers” that overbearing majorities violated in the states.

Although he enumerated several reasons for his opposition, Madison then gave his friend hope when he stated that most important reason in favor of a Bill of Rights was that, “The political truths declared in that solemn manner acquire by degrees the character of fundamental maxims of free Government, and as they become incorporated with the National sentiment, counteract the impulses of interest and passion.”  Madison thought the liberties would become engrained in the American character.

When he arose to give the speech on June 8, Madison faced hostility from several Federalists who thought the House of Representatives had more pressing business. Most representatives and senators thought that the Congress had more important work to do setting up the new government or passing tax bills for revenue. Many thought it was a “tub to the whale,” or a distraction, like the empty tub that sailors would use to draw away a whale’s attention. They were forgetting their promise during the ratification de