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

, , , , , ,

LISTEN ON SOUNDCLOUD:

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.

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

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

Click Here to have the NEWEST essay in this study emailed to your inbox every day at 12:30 pm Eastern!

Click Here for the previous essay.

Click Here to view the schedule of topics in our 90 Day Study on Congress.

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

, , , , , ,

LISTEN ON SOUNDCLOUD:

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.

 

Click Here to have the NEWEST essay in this study emailed to your inbox every day at 12:30 pm Eastern!

Click Here for the previous essay.

Click Here for the next essay.

Click Here to view the schedule of topics in our 90 Day Study on Congress.

 

April 24: Thomas Brackett Reed (1839-1902) – House Speaker From Maine Known For “Reed’s Rules” – Guest Essayists: Joseph Postell & Samuel Postell

, , , , , , ,

LISTEN ON SOUNDCLOUD:

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.

Click Here to have the NEWEST essay in this study emailed to your inbox every day at 12:30 pm Eastern!

Click Here for the previous essay.

Click Here for the next essay.

Click Here to view the schedule of topics in our 90 Day Study on Congress.

 

April 23: James G. Blaine (1830-1893) – House Speaker & Senate Member From Maine, Secretary Of State, Presidential Candidate – Guest Essayist: Daniel A. Cotter

, , , , , ,

LISTEN ON SOUNDCLOUD:

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.

Click Here to have the NEWEST essay in this study emailed to your inbox every day at 12:30 pm Eastern!

Click Here for the previous essay.

Click Here for the next essay.

Click Here to view the schedule of topics in our 90 Day Study on Congress.

April 20: Thomas Hart Benton (1782-1858) – Missouri House & Senate Member – Guest Essayist: Ben Phibbs

, , , , , ,

LISTEN ON SOUNDCLOUD:

“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.

Click Here to have the NEWEST essay in this study emailed to your inbox every day at 12:30 pm Eastern!

Click Here for the previous essay.

Click Here for the next essay.

Click Here to view the schedule of topics in our 90 Day Study on Congress.

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

, , , , , ,

LISTEN ON SOUNDCLOUD:

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/.

 

Click Here to have the NEWEST essay in this study emailed to your inbox every day at 12:30 pm Eastern!

Click Here for the previous essay.

Click Here for the next essay.

Click Here to view the schedule of topics in our 90 Day Study on Congress.

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

, , , , , ,

LISTEN ON SOUNDCLOUD:

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/.

 

Click Here to have the NEWEST essay in this study emailed to your inbox every day at 12:30 pm Eastern!

Click Here for the previous essay.

Click Here for the next essay.

Click Here to view the schedule of topics in our 90 Day Study on Congress.

April 17: John C. Calhoun (1782-1850) – Seventh U.S. Vice President, South Carolina House & Senate Member, Part 2 – Guest Essayist: Joerg Knipprath

, , , , , ,

LISTEN ON SOUNDCLOUD:

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/.

 

Click Here to have the NEWEST essay in this study emailed to your inbox every day at 12:30 pm Eastern!

Click Here for the previous essay.

Click Here for the next essay.

Click Here to view the schedule of topics in our 90 Day Study on Congress.

April 16: John C. Calhoun (1782-1850) – Seventh U.S. Vice President, South Carolina House & Senate Member, Part 1 – Guest Essayist: Joerg Knipprath

, , , , , ,

LISTEN ON SOUNDCLOUD:

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/.

Click Here to have the NEWEST essay in this study emailed to your inbox every day at 12:30 pm Eastern!

Click Here for the previous essay.

Click Here for the next essay.

Click Here to view the schedule of topics in our 90 Day Study on Congress.

April 13: Henry Clay (1777-1852) – House Speaker, Whig Party Leader, Kentucky Senate Member – Guest Essayist: Sam Postell

, , , , , ,

LISTEN ON SOUNDCLOUD:

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.

Click Here to have the NEWEST essay in this study emailed to your inbox every day at 12:30 pm Eastern!

Click Here for the previous essay.

Click Here for the next essay.

Click Here to view the schedule of topics in our 90 Day Study on Congress.

April 12: John Quincy Adams (1767-1848) – Sixth U.S. President, Massachusetts House & Senate Member – Guest Essayist: Brian Pawlowski

, , , , , ,

LISTEN ON SOUNDCLOUD:

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.

 

Click Here to have the NEWEST essay in this study emailed to your inbox every day at 12:30 pm Eastern!

Click Here for the previous essay.

Click Here for the next essay.

Click Here to view the schedule of topics in our 90 Day Study on Congress.

April 11: The Great Debates – Civil Rights Act of 1964 – Guest Essayist: Daniel A. Cotter

, , , , , ,

LISTEN ON SOUNDCLOUD:

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.

 

Click Here to have the NEWEST essay in this study emailed to your inbox every day at 12:30 pm Eastern!

Click Here for the previous essay.

Click Here for the next essay.

Click Here to view the schedule of topics in our 90 Day Study on Congress.

 

April 10: Entry Into WWII And The America First Debate, Part 2 – Guest Essayist: James Legee

, , , , , ,

LISTEN ON SOUNDCLOUD:

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

Click Here to have the NEWEST essay in this study emailed to your inbox every day at 12:30 pm Eastern!

Click Here for the previous essay.

Click Here for the next essay.

Click Here to view the schedule of topics in our 90 Day Study on Congress.

April 9: The Great Debates – The Nineteenth Amendment – Guest Essayist: Cleta Mitchell

, , , , , ,

LISTEN ON SOUNDCLOUD:

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.

 

Click Here to have the NEWEST essay in this study emailed to your inbox every day at 12:30 pm Eastern!

Click Here for the previous essay.

Click Here for the next essay.

Click Here to view the schedule of topics in our 90 Day Study on Congress.

April 6: Entry Into WWII And The America First Debate – Guest Essayist: James Legee

, , , , , ,

LISTEN ON SOUNDCLOUD

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

Click Here to have the NEWEST essay in this study emailed to your inbox every day at 12:30 pm Eastern!

Click Here for the previous essay.

Click Here for the next essay.

Click Here to view the schedule of topics in our 90 Day Study on Congress.

April 5: Henry Cabot Lodge Senate Debate Of 1919 & The Treaty Of Versailles – Guest Essayist Tony Williams

, , , , , ,

LISTEN ON SOUNDCLOUD:

“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.

Click Here to have the NEWEST essay in this study emailed to your inbox every day at 12:30 pm Eastern!

Click Here for the previous essay.

Click Here for the next essay.

Click Here to view the schedule of topics in our 90 Day Study on Congress.

April 4: Stephen A. Douglas & Abraham Lincoln In Congressional Debate: The Compromise Of 1850, Kansas-Nebraska Act Of 1854 – Guest Essayist: Daniel A. Cotter

, , , , , ,

LISTEN ON SOUNDCLOUD:

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.

 

Click Here to have the NEWEST essay in this study emailed to your inbox every day at 12:30 pm Eastern!

Click Here for the previous essay.

Click Here for the next essay.

Click Here to view the schedule of topics in our 90 Day Study on Congress.

 

April 3: Freedom Of Speech Within Congressional Debates: John Quincy Adams & The Gag Rule, 1840s – Guest Essayist: Tony Williams

, , , , , ,

LISTEN ON SOUNDCLOUD:

“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.

Click Here to have the NEWEST essay in this study emailed to your inbox every day at 12:30 pm Eastern!

Click Here for the previous essay.

Click Here for the next essay.

Click Here to view the schedule of topics in our 90 Day Study on Congress.

April 2: The Great Debates – Robert Hayne’s 1830 Senate Speech & Daniel Webster’s Reply, Part 2 – Guest Essayist: Joerg Knipprath

, , , , , ,

LISTEN ON SOUNDCLOUD:

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/.

 

Click Here to have the NEWEST essay in this study emailed to your inbox every day at 12:30 pm Eastern!

Click Here for the previous essay.

Click Here for the next essay.

Click Here to view the schedule of topics in our 90 Day Study on Congress.

March 30: The Great Debates – Robert Hayne’s 1830 Senate Speech & Daniel Webster’s Reply – Guest Essayist: Joerg Knipprath

, , , , , ,

LISTEN ON SOUNDCLOUD:

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/.

Click Here to have the NEWEST essay in this study emailed to your inbox every day at 12:30 pm Eastern!

Click Here for the previous essay.

Click Here for the next essay.

Click Here to view the schedule of topics in our 90 Day Study on Congress.

March 29: The Great Debates – Congress & The Missouri Compromise Of 1820 – Guest Essayist: Daniel A. Cotter

, , , , , ,

LISTEN ON SOUNDCLOUD:

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.

Click Here to have the NEWEST essay in this study emailed to your inbox every day at 12:30 pm Eastern!

Click Here for the previous essay.

Click Here for the next essay.

Click Here to view the schedule of topics in our 90 Day Study on Congress.

 

March 28: The Role Of Congress In Creation & Constitutionality Of The National Bank, Part 2 – Guest Essayist: Tony Williams

, , , , , ,

LISTEN ON SOUNDCLOUD:

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.

 

Click Here to have the NEWEST essay in this study emailed to your inbox every day at 12:30 pm Eastern!

Click Here for the previous essay.

Click Here for the next essay.

Click Here to view the schedule of topics in our 90 Day Study on Congress.

March 27: The Role Of Congress In Creation & Constitutionality Of The National Bank – Guest Essayist: Joerg Knipprath

, , , , , ,

LISTEN ON SOUNDCLOUD:

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/.

 

Click Here to have the NEWEST essay in this study emailed to your inbox every day at 12:30 pm Eastern!

Click Here for the previous essay.

Click Here for the next essay.

Click Here to view the schedule of topics in our 90 Day Study on Congress.

March 26: The Decision Of 1789: Congress, The President & Removal Of Presidential Appointees – Guest Essayists: David Alvis & Flagg Taylor

, , , , , , ,

LISTEN ON SOUNDCLOUD:

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

 

Click Here to have the NEWEST essay in this study emailed to your inbox every day at 12:30 pm Eastern!

Click Here for the previous essay.

Click Here for the next essay.

Click Here to view the schedule of topics in our 90 Day Study on Congress.

March 23: Statesmanship & The Distinguished Oratory Of Daniel Webster, Henry Clay, John C. Calhoun – Guest Essayist: Brian Pawlowski

, , , , , ,

LISTEN ON SOUNDCLOUD:

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

Click Here to have the NEWEST essay in this study emailed to your inbox every day at 12:30 pm Eastern!

Click Here for the previous essay.

Click Here for the next essay.

Click Here to view the schedule of topics in our 90 Day Study on Congress.

March 22: Culture Of Debates On The House & Senate Floors – Guest Essayist: Scot Faulkner

, , , , , ,

LISTEN ON SOUNDCLOUD:

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

Click Here to have the NEWEST essay in this study emailed to your inbox every day at 12:30 pm Eastern!

Click Here for the previous essay.

Click Here for the next essay.

Click Here to view the schedule of topics in our 90 Day Study on Congress.

March 21: Federalist 63: The Senate And Our National Character – Guest Essayist: Forrest Nabors

, , , , , ,

LISTEN ON SOUNDCLOUD:

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.

Click Here to have the NEWEST essay in this study emailed to your inbox every day at 12:30 pm Eastern!

Click Here for the previous essay.

Click Here for the next essay.

Click Here to view the schedule of topics in our 90 Day Study on Congress.

March 20: Federalist 62: The Structure And Role Of The Senate – Guest Essayist: Forrest Nabors

, , , , , ,

LISTEN ON SOUNDCLOUD:

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.

Read more

Happy Birthday, James Madison! March 16, 1751 – Federalist Papers 51 & 53 – How The American People Hold Congress Accountable – Guest Essayist: Joerg Knipprath

, , , , , ,

LISTEN ON SOUNDCLOUD:

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.

Read more

March 15: Federalist 10: Political Stability And Good Governance – Guest Essayist: Richard Wagner

, , , , , ,

LISTEN ON SOUNDCLOUD:

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.

Click Here to have the NEWEST essay in this study emailed to your inbox every day at 12:30 pm Eastern!

Click Here for the previous essay.

Click Here for the next essay.

Click Here to view the schedule of topics in our 90 Day Study on Congress.

March 14: James Madison: Guiding The Bill Of Rights Through The U.S. House Of Representatives – Guest Essayist: Tony Williams

, , , , , ,

LISTEN ON SOUNDCLOUD:

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 debate to add amendments safeguarding liberties while setting up the new government. Madison wanted to ensure that obligation was fulfilled because he knew that failing to do so sure would strengthen the Anti-Federalist push for a second Convention to alter the Constitution and that it would stir up continuing opposition to the new republic.

Madison began his speech by stating that a Bill of Rights would prove to the Anti-Federalists that the Federalists were “as sincerely devoted to liberty and a republican government.”  In an act of reconciliation and magnanimity, he also reached out to the Anti-Federalists because, “We ought not to disregard their inclination, but, on principles of amity and moderation, conform to their wishes, and expressly declare the great rights of mankind secured under this constitution.”

Madison magnanimously completed his lengthy speech by asserting, “If we can make the constitution better in the opinion of those who are opposed to it, without weakening its frame, or abridging its usefulness, in the judgment of those who are attached to it, we act the part of wise and liberal men.”

Even though Madison had been one of the strongest opponents of the Bill of Rights, he became the “Father of the Bill of Rights” as he skillfully guided the amendments through the Congress during the summer of 1789.  He reconciled all the various proposals for amendments from the state ratifying conventions and discarded any that would alter the structure of the Constitution or new government. Keeping the amendments protecting essential liberties, Madison developed a list of nineteen amendments and a preamble. He wanted them to be woven into the text of the Constitution, and sought a key amendment to protect religious freedom, a free press, and a trial by jury against violation by state governments. The attempts to have the amendments inserted into the text and applied to the states lost, but he forged ahead anyway. On August 24, the House sent seventeen amendments to the Senate after voting by more than the required two-thirds margin. By September 14, two-thirds of the Senate approved twelve amendments, removing the limitations on state governments. President Washington sent them to the states endorsing the amendments even if he did not have a formal role in their adoption.

Over the next two years, eleven states ratified the Bill of Rights to meet the three-fourths constitutional threshold including North Carolina and Rhode Island. Virginia became the last state to ratify on December 15, 1791. While we rightfully celebrate the Bill of Rights as essential to our liberties, we should not forget that the Constitution created a limited government that is the best guarantee of individual liberties.

Tony Williams is Senior Teaching Fellow at the Bill of Rights Institute; a Constituting America Fellow; author of Washington and Hamilton: The Alliance that Forged America, and Hamilton: An American Biography.

Click Here to have the NEWEST essay in this study emailed to your inbox every day at 12:30 pm Eastern!

Click Here for the previous essay.

Click Here for the next essay.

Click Here to view the schedule of topics in our 90 Day Study on Congress.

March 13: Bill Of Rights: Placing Limits On Congressional Governing – Part Three – Guest Essayist: Patrick Garry

, , , , , ,

LISTEN ON SOUNDCLOUD:

The Bill of Rights comprises the first ten amendment to the U.S. Constitution.  These amendments — containing provisions addressing such matters as freedom of speech and religion, and freedoms from search and seizure and compelled self-incrimination – are often seen as concerned with individual liberties and hence reflecting a different focus than that of the U.S. Constitution, which primarily addresses government structure and powers.  Under this view, the Constitution and the Bill of Rights are seen as separate documents with separate aims.  However, both the Constitution and the Bill of Rights focus on limiting the power of the federal government, although in somewhat different ways.

The debate over ratification of the U.S. Constitution occurred primarily between two groups, known as the Federalists and the Antifederalists.  The former supported passage of the Constitution, with its creation of a strong federal government, while the latter opposed the Constitution, on the grounds that it gave too much power to a potentially abusive central government.  To secure passage of the Constitution, and to address the concerns of the Antifederalists, the Federalists promised that a Bill of Rights would be adopted once the Constitution was ratified.  Thus, the Bill of Rights came into existence through a compromise reached between the Federalists and Antifederalists over the issue of constitutional limits on federal power.

The limitations on government power imposed by the Bill of Rights differ from the limits imposed by the original Constitution.  Provisions on freedom of speech and religion, for instance, as contained in the First Amendment, place substantive restraints on the federal government.  These provisions restrict the federal government from acting in certain substantive areas – e.g., individual speech and religious exercise.  On the other hand, the limitations contained in the original Constitution tended not to deal with substantive areas or issues, but instead created structural limitations that restricted the exercise of government power in general.

Structural limits on government power consisted of the checks and balances imposed by the Constitution’s separation of powers, in which each branch of government could check the power exercised by the other branches, preventing those branches from overstepping their bounds.  Federalism also amounted to a structural limitation, since it allowed the various levels of government – e.g., state, local and federal – to serve as checks and balances on the other levels.

The Bill of Rights provided substantive limits that existed in addition to the structural limits provided in the original Constitution.  For instance, even if the federal government possessed the power to act in a certain way, it could not, pursuant to the First Amendment, use that power to infringe on the freedom of speech or religious exercise.  Consequently, as demanded by the Antifederalists, the Bill of Rights provided yet another level of control and restraint on the use of federal government power under the U.S. Constitution.

Although the Antifederalist concern about limiting the power of the federal government provided the initial impetus for the Bill of Rights, the Bill does more than simply provide a restraint on government action.  It seeks to preserve liberty by protecting particular areas traditionally considered essential to individual freedom and dignity.

In preserving these areas of individual freedom and autonomy, the Bill of Rights also helps to strengthen the democratic fabric of the American political system.  It does so by maintaining the foundations of a democratic society, which in turn sustains a democratic political order.  Individuals can hardly participate in the political process if they do not possess the freedom to speak out on public matters and to hear the viewpoints of others who possess a similar freedom.  Likewise, a political system can hardly be healthy and vibrant if the society underlying it does not reflect the full concerns and values of the individuals living in it.  A society in which individuals are unable to exercise their religious beliefs, for instance, cannot be a free and vibrant society that will produce a healthy democratic governance.

By restricting government’s power to encroach on various areas of liberty, the Bill of Rights attempts to preserve the freedom of individuals to shape and influence the democratic society to which they belong, which in turn shapes and influences the political culture of society, which in turn shapes and influences the actions of the government and the content of the law.  Thus, through the operation of the Bill of Rights, citizens possess greater opportunity to exercise the sovereign and democratic powers envisioned by the U.S. Constitution.

Patrick M. Garry is Professor of Law at the University of South Dakota.
http://patrickgarry.com

Click Here to have the NEWEST essay in this study emailed to your inbox every day at 12:30 pm Eastern!

Click Here for the previous essay.

Click Here for the next essay.

Click Here to view the schedule of topics in our 90 Day Study on Congress.

March 12: Bill Of Rights: Placing Limits On Congressional Governing – Part Two – Guest Essayist: Gary Porter

, , , , , ,

LISTEN ON SOUNDCLOUD:

A Bill Of Rights Is What The People Are Entitled To … — The People Limit Their Government

“In questions of power,… let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution.” Thomas Jefferson, 1798.

Sunday, 8 April 1787

Young “Jemmy” Madison, frustrated by what he had observed over the last six years, sat down at his writing desk in his New York City boarding room. After an unseasonably severe winter, the Spring of 1787 was finally becoming pleasant. But Madison had little time to reflect upon the fair weather.

Read more

March 9: Bill Of Rights: Placing Limits On Congressional Governing – Guest Essayist: Andrew Langer

, , , ,

LISTEN ON SOUNDCLOUD:

“Let me add that a bill of rights is what the people are entitled to against every government on earth, general or particular, and what no just government should refuse, or rest on inference.” – Thomas Jefferson, in a letter to James Madison, December 20, 1787

Read more

March 8: Articles Of Confederation – What The Founders Thought Of The Articles Of Confederation And Why They Did Not Last – Guest Essayist: Patrick Garry

, , , ,

LISTEN ON SOUNDCLOUD:

The Articles of Confederation provided America’s first form of government structure, in effect during the years immediately following independence from Britain and ending with the adoption of the U.S. Constitution in 1789.  The Articles created a very weak national governing structure, which resembled more of a loose confederation of the different states than a single, unified sovereign entity.

Read more

March 7: Articles of Confederation – Congress Wielded All Three Powers: Legislative, Judicial, Executive, Later Separated – Guest Essayist: Daniel A. Cotter

, , , ,

LISTEN ON SOUNDCLOUD:

On November 15, 1777, the Continental Congress approved what was this newly declared independent nation’s first constitution, the Articles of Confederation.  The Articles included a single governing body, the Continental Congress.   Requiring unanimous ratification by all thirteen of the British colonies, it took until March 1, 1781, when Maryland ratified the Articles, for them to become effective.  The Articles governed until 1789, when the United States Constitution replaced the Articles.

Read more

March 6: The Articles Of Confederation: The First Written Constitution Of The United States – Guest Essayist: George Landrith

, , , ,

LISTEN ON SOUNDCLOUD:

After the decisive Battle of Yorktown in October of 1781 where General George Washington’s army defeated and captured the British army commanded by General Charles Cornwallis, the British sued for peace. America had finally won the independence that Jefferson had written about in his famous Declaration formalized by the Continental Congress on July 4, 1776. It took more than five years of war to win that freedom. Now came the difficult task of establishing a nation dedicated to the principles of freedom and self-government.

Read more

March 5: The Declaration Of Independence And The United States Congress – Guest Essayist: Gary Porter

, , , ,

LISTEN ON SOUNDCLOUD:

Most Americans realize that the Declaration of Independence established our separation from Great Britain and that sometime later the U.S. Constitution established the U.S. Congress, the Legislative Branch of government, along with its sister branches: the Executive and the Judiciary.  But most Americans would be surprised to learn that the Congress, through the Constitution, has a connection to the Declaration of Independence as well.  Many view the two documents as separate and distinct; they were, after all, drafted eleven years apart by two different groups of men for different purposes.[1] But the U.S. Supreme Court has affirmed their connection; in Gulf, C. & S. F. R. CO. v. Ellis , 165 U.S. 150 (1897), the Court declared that while the Constitution was indeed the “body and letter” of our government, the Declaration was the “thought and spirit.”

Read more

March 2: What A Republican Form Of Government Means & Why This Structure Mattered To America’s Constitution Framers – Guest Essayist: Joerg Knipprath

, , , ,

LISTEN ON SOUNDCLOUD:

Under Article IV, Section 4, of the Constitution, the United States shall guarantee to each state a republican form of government. That raises the question of what was understood not only by a “republican form” of government, but by the substance of republicanism.

Read more

March 1: Why The Legislative Branch Is Listed First In Article I Of The United States Constitution – Guest Essayist: James D. Best

, , , , ,

LISTEN ON SOUNDCLOUD:

The Constitution is comprised of seven articles. Article I defines the powers of the Legislature, Article II defines the power of the executive, and Article III defines the powers of the judiciary. The remaining short articles handle everything that didn’t fit within branch powers.

In the closing days of the Federal Convention, now called the Constitutional Convention, the Committee of Detail delivered twenty-three disjointed sections to the Committee of Style. Gouverneur Morris volunteered to edit the language of the resolutions. He also consolidated the sections, organized the presentation, and prepared a preamble. He wrote with such consummate skill that his words have reverberated through time and distance. Morris took the clumsy and perfunctory preamble from the Committee of Detail and crafted a beloved fifty-two words opening that may be the most important sentence in political history.

Morris cannot take credit for “We the people,” but he can take credit for “We the People of the United States.” The Committee of Detail preamble used “We the people of the States of …” and then listed all thirteen states.

During the convention, Morris argued for a strong executive. Only Alexander Hamilton may have been a stronger nationalist. As the “Penman of the Constitution,” he could have started with executive powers to emphasize the powers of the president. He did not. Why? Four considerations may have led him and the Committee of Style to list legislative powers first.

  1. The Congress under the Articles of Confederation sanctioned the Federal Convention.
  2. The Federal Convention needed Congress to forward the Constitution on to the state ratification conventions.
  3. People would be more comfortable with a strong executive after they saw legislative checks on executive powers.
  4. Congress would be the first branch of the new government. It would validate the election of the president, who would then nominate justices to the Supreme Court.

Congress sanctioned the Federal Convention to recommend amendments to the Articles of Confederation. Instead, the convention invented an entirely new system of government. The convention’s sole claim to legitimacy came from Congress, and they had to get by this same body to ratify the Constitution. Despite popular misperception, the Constitutional Convention did not “ordain and establish” the Constitution. It took independent conventions in each state to accomplish that herculean task. These first two considerations required the Framers to show deference to the old Congress.

Vast presidential powers terrified early Americans. They had first-hand experience with an autocratic executive, and knew from bloody experience that it was difficult to break free from oppressive. The Articles of Confederation were sickly, but a strong president would be hard medicine to swallow. In the design, the Framers insisted on balanced power between the branches, with each branch possessing potent checks on the other branches. Safety through what we call checks and balances. Delegates to the state ratification conventions had not participated in the four months of debate and compromise. This would be all new to them … and the rest of the nation. Legislative checks on the executive might overcome some of the apprehension surrounding a powerful executive.

The Committee of Style completed another vital task. They wrote an audacious letter to Congress that told them how to implement the new government. Not a trivial matter, and in many respects, much like the chicken and egg question. Under these instructions, the sequence of the branches taking oaths of office is the same as listed in the Constitution. The letter states, “the United States in Congress assembled should fix a Day … the Time and Place for commencing Proceedings under this Constitution.” Thus, Congress first. “Senators should appoint a President of the Senate, for the sole Purpose of receiving, opening and counting the Votes for President” And President next, who would then nominate justices for the Supreme Court.

If the three branches are co-equal, then theoretically, it shouldn’t make any difference which branch is described first. Perhaps not for governance, but it made a difference in improving the atmosphere for ratification. The Framers understood that they did not possess the authority to make the Constitution the “supreme Law of the Land.” The Framers believed that power resided solely with the people, and now the people would judge their work. Would they approve? Determined and noisy opposition stood ready on the sidelines, eager to knock down anything that smelled of monarchy. The Framers were politicians. Gifted politicians. They knew the weaknesses of the Articles, the symmetry of the Constitution, and the mood of their countrymen. They took many measures to promote ratification. The sequence of the document may have been one more.

Why is the legislative branch listed first in the United States Constitution? To remove obstacles to ratification, to make acceptance easier, and to facilitate implementation.

Theodore White in his book, In Search of History wrote, “Threading an idea into the slipstream of politics, then into government, then into history… is a craft which I have since come to consider the most important in the world.” This was  the Framers gift … and it is a rare gift indeed.

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.

Click Here to have the NEWEST essay in this study emailed to your inbox every day at 12:30 pm Eastern!

Click Here for the previous essay.

Click Here for the next essay.

Click Here to view the schedule of topics in our 90 Day Study on Congress.

February 28: Legislative: Most Important Branch, Of The People, Whose Primary Role Is Lawmaking – Guest Essayist: James Legee

, , , ,

 

LISTEN ON SOUNDCLOUD:

The contemporary refrain on Congress is that it is the branch of the Federal Government most reviled, and least functional.  Pundits and professional scholars alike speak of gridlock and partisanship; political scientists Norman Ornstein and Thomas E. Mann have decried the branch of the people in a series of books with titles like “The Broken Branch” and “It’s Worse than it Looks.”

Read more

February 27: Since The First U.S. Congress In 1789: Why, When & How The People’s Branch Convenes – Guest Essayist: Tony Williams

, , , ,

LISTEN ON SOUNDCLOUD:

The People’s Branch

In the spring of 1789, several dozen representatives and senators from eleven states (North Carolina and Rhode Island had not yet ratified the Constitution) traveled to New York for the first session of the First Congress. Most fundamentally, they were assembling because the United States had a constitutional republican form of government based upon the consent of the governed.

Read more

February 26: Senate History: Purpose Of The U.S. Senate, The “Cooling Factor” And “Sober Second Thought” – Guest Essayist: James Legee

, , , ,

LISTEN ON SOUNDCLOUD:

The Senate was intended to be the upper house of America’s Congress, a long-serving chamber of sober debate.  Here, the passions of human nature, which history watched manifest into noble appeals to virtue and liberty as often as into the deplorable institution of slavery or the savagery of the French Revolution, were to be calmed and sober reason allowed to prevail.

Read more

February 23: House History: Purpose Of The United States House of Representatives As The Immediate Will Of The People – Guest Essayist: Scot Faulkner

, , , ,

LISTEN ON SOUNDCLOUD:

The reason the U.S. House of Representatives is so different from the U.S. Senate is deeply rooted in the history of representative democracy.

Since the first time hunter gatherers sat around a campfire, leaders depended upon the advice of trusted counselors. These advisors evolved into a lord’s or noble’s Privy Council, and eventually into the “upper chambers” of many democracies, such as Britain’s House of Lords. These members were chosen “from above” – directly by the noble, not “from below” – by the people.  In America, the U.S. Senate was based on being chosen “from above” by State Legislatures until April 8, 1913, when the 17th Amendment to the U.S. Constitution mandated that Senators be directly elected.

Read more

February 22: Beginnings Of The United States Congress Part 2 – Guest Essayist: Marc Clauson

, , , ,

LISTEN ON SOUNDCLOUD:

Legislative assemblies came to be debated first in the seventeenth century, especially in England.  They were also discussed in theory by Thomas Hobbes, John Locke, James Harrington, and Montesquieu, among others.[1]  I will define representation, equating the term with political representation, as “making citizens’ voices, opinions, and perspectives “present” in public deliberation and policy making process” when “political actors speak, advocate, symbolize, and act on behalf of others in the political arena.”[2]  When we think of our own American system, we ought to consider the issues the Founders addressed regarding representation, and “built into” the Constitution:

  1. Why have a legislative body at all, as opposed to a monarch or elected executive?
  2. Who would be represented by Congress, individuals or states, or both?
  3. How many “houses” or chambers of a Congress should be created, and why?
  4. Who would be able to articulate a political “voice” through Congress?
  5. What powers would this legislative body have, given the inevitable inequality of authority?
  6. How would the legislative bodies relate to the other branches, Executive and Judicial, the question of separation of powers and checks and balances?
  7. What should be the “voting rules” (simple majority, super-majority) of Congress for various types of proposed actions?

Read more

February 21: Beginnings Of The United States Congress – Guest Essayist: Tony Williams

, , , ,

LISTEN ON SOUNDCLOUD:

The Constitutional First Congress

As Representative James Madison reflected on the task of the First Congress, he stated, “We are in a wilderness without a single footstep to guide us.” Perhaps Madison was wrong for the representatives and senators had a few guides at their disposal. They had their experience in the state legislatures and the national Congress under the Articles of Confederation. In addition, they had their wisdom and prudence to pursue the public good in deliberative government. Most fundamentally, they had the new Constitution as the fundamental guide for all their actions.

Read more

February 20: INTRODUCTION Part 2: The United States Congress Today – Guest Essayist: William Morrisey

, , , ,

LISTEN ON SOUNDCLOUD:

The careful design of the United States federal government, as seen in our Constitution, has been admired and imitated throughout the world. Yet few Americans today think of their government as very much limited to matters of commerce, military defense, and constitutional law. Nor do we think of Congressmen as citizen-legislators, serving a few years in the nation’s capital and then returning home to the applause of grateful, armed, and vigilant fellow-citizens.

What has happened, since 1787?

Read more

February 19: INTRODUCTION: The United States Congress And Its Place In Constitutional Government – Guest Essayist: William Morrisey

, , , ,

LISTEN ON SOUNDCLOUD:

Against the arbitrary rule of George III, the American Founders opposed the rule of law. On the most fundamental level, in their Declaration of Independence, they appealed to the laws of Nature and of Nature’s God against tyrannical violations of the unalienable rights established by those laws. Eleven years later, in designing the human, conventional, constitutional law that reframed the federal government, the Founders established a republican regime intended to prevent the return of arbitrary rule to their country.

Of the three branches of government, they put the legislature first; understanding that the perfect, divine Lawgiver established the rule of His laws in nature, the Founders knew that procedures established for imperfect, human lawmakers needed to keep such persons directed toward the defense of the natural laws. Congress also ‘came first’ for a historical reason: In our first constitution, the Articles of Confederation, the legislature was the only branch of government. Not only was Congress itself unicameral, but the executive and judicial powers were folded into it. Read more