Guest Essayist: Horace Cooper, Legal Commentator and Director of the Institute for Liberty’s Center for Law and Regulation

The Federalist Papers were written from 1787 to 1788 by Alexander Hamilton, James Madison and John Jay.   They were published in several New York State newspapers to persuade New York voters to ratify the proposed constitution that had been crafted at the Philadelphia Convention in 1787.  Numbering 85, the essays outlined the ways the new federal government would operate and why this type of government was the best choice for the United States of America. Each of the essays were signed “PUBLIUS” and they remain today as an excellent reference for anyone who wants to understand the United States Constitution.

Hamilton opens Federalist #1 with an introduction of the present state of affairs in the then existing United States of America and his plan to explain over a series of Papers why the new federal government created by the U.S. Constitution was necessary.  Premised in his argument is a fundamental foundation upon which our system of government is based — self-government or rule by the consent of the governed.  From its inception our Constitution’s validity was tied to the notion that formal acceptance and ratification by the people and the state legislatures was necessary in order to be legitimate.  Our Constitution was neither self-enacting nor imposed from a ruler.

At the time of the writing of Federalist #1 the United States of America is governed by the Articles of Confederation. Drafted by the Second Continental Congress in 1776, the Articles of Confederation had been submitted to the states for ratification in November of 1777.

As outlined by the Continental Congress, the federal government by 1787 had the authority to make war, negotiate diplomatic agreements and treaties, and acquire and oversee new territories that had not yet become full-fledged states.

However, by the time of the Philadelphia Convention that year many of the inadequacies of the Articles of Confederation were obvious.  The government created by the Articles was incapable of providing the authority and power needed to be a fully functioning authority. Instead of a division of authority among three separate branches, the federal government exercised all of its authority through a unicameral legislature called the Congress of Confederation.   Ironically, such a concentration of power masked the overall weakness of the federal government.

In order to change or amend the Articles, it required unanimous approval of the states.  This standard made making any changes or reforms nearly impossible.  The federal government had no power to tax and as such could not meet even its most basic financial responsibilities.  A threshold requirement that nine of 13 states approve major laws passed by the Congress limited the ability of Congress to act on any but the most uncontroversial matters.  In addition, it is significant that the Articles provided no authority for Congress to resolve conflicts between the states or to set up countrywide rules to encourage merchants and commerce.

Hamilton along with many other of our Founders recognized that if the United States was ever to become an economic powerhouse capable of defending itself from enemies without and within it was essential that the changes proposed in the Constitution were adopted.  You see it was not simply dumb luck that we have this national charter.  Now more than 200 years later we Americans share in the legacy created by these men and women who had such foresight and wisdom.

The Philadelphia Convention convened in May of 1787 and did not finish until September.  When the convention finished Delegate Benjamin Franklin was approached by a woman.  She asked Mr. Franklin, “What have you given us?  A monarchy or a republic?”  He famously replied, “A republic…if you can keep it.”  Therein lies our task as citizens today.

Wednesday, April 28th, 2010

Horace Cooper is a Legal Commentator and Director of the Institute for Liberty’s Center for Law and Regulation

47 Responses to “April 28, 2010Federalist No. 1, General Introduction, For the Independent Journal (Hamilton) – Guest Blogger: Horace Cooper, Legal Commentator and Director of the Institute for Liberty’s Center for Law and Regulation

  1. Peter says:

    It is particularly interesting to me that Hamilton and Madison, who worked so well together to produce the Constitution and see it through to ratification, later became the driving force behind the first two political parties (The Federalists & The Jeffersonian-Republicans, which today are known as the Democrats). United in the cause of bringing the nation into being, they later split over the direction it should take.

    It would be interesting to see how–and if–the differences that later developed between are foreshawdowed in The Federalist Papers. Perhaps some of the experts could build that analysis into their commentaries as the series moves forward.

  2. Lillian Harvey says:

    “…it will be equally forgotten that the vigor of government is essential to the security of liberty; that, in the contemplation of a sound and well-informed judgment, their interest can never be separated; and that a dangerous ambition more often lurks behind the specious mask of zeal for the rights of the people than under the forbidden appearance of zeal for the firmness and efficiency of government. History will teach us that the former has been found a much more certain road to the introduction of despotism than the latter, and that of those men who have overturned the liberties of republics, the greatest number have begun their career by paying an obsequious court to the people; commencing demagogues, and ending tyrants.”

    I wonder how Mr. Hamilton would feel about the “power grab” enacted on the backs of the American people in the form of “Healthcare *access through mandated insurance purchase*” as an Individual Right? He certainly didn’t think much of the “rights” of people over the “firmness and efficiency” of government.

    It is clear that the anti-Federalists had a reason to be nervous for the future of our country and establishing a federal system without a clear delineation between the rights of individuals and the powers granted to government by those individuals. Without that rich debate, would we have ever gained the deep appreciation for the liberty and prosperity that was possible as this country grew? To even think that modern day Progressivism is in anyway aligned with the thinking of either of these schools of thought is absurd, imho. How far away they are from what the Founders were talking about and doing.

    Do our selected leaders of today really understand how far this process has strayed? I feel there are tricks and tyrants afoot.

    Are you all as blown away by what you are reading as I am? I studied these documents in school, of course. But I feel like I am finally understanding them because there are such contrasting ideas being practiced in our government today. Process is everything. I understand why these 1st Principles were adopted and why they fought so hard to enact them. Time to restore the Republic to 1st principles. No pain, no gain.

  3. Will says:

    @Lillian Harvey
    Yes, I’m pretty much blown away by understanding the deeper meanings in these documents. Until this project I never really understood how things like Social Security, Medicare and parts of the health reform bill really *are* unconstitutional, and should be abolished.

  4. Lillian Harvey says:

    @Will
    Finding the reset button is one thing, but pushing it is another. Each day, I’m finding more courage to accept the consequences of doing just that. There are more of us to convince that we are on the wrong track and there will be sacrifices to get us straight. Projects like this one are our best hope to help us make the necessary case through educated and considered argument against the legislative waste passed for the “good of the people”.
    Donna had a great description of how the study of case law and rulings on precedents rather than original intent has assisted in getting us off track. Being able to see legislative proposals through the principles laid out in the Constitution demonstrates that most have no place being enacted at the Federal level. There is so much bloat in the Executive as a result. Of course “Washington is broken”. This structure was not designed to carry that extraordinary and unnecessary weight.

  5. Susan Craig says:

    From Ecclesiastes “There is nothing new under the sun”. It continues to amaze me at the well rounded understanding of the human condition that our Founding Fathers had. How our ‘education’ has failed us.

  6. Carolyn Attaway says:

    I made the comment to my husband last night, that since I started reading the Constitution again through this series, watching the news took on a complete new dimension. Listening to Congressmen discuss the Immigration Laws and the Goldman Sachs debacle, I am realizing that many have no idea what they are talking about. Congressman and newscasters alike are saying things like ‘This Law Makes it a Crime to be an Illegal Immigrant’. I had to clean out my ears when I heard that one. Surely I was mistaken. Sadly, I wasn’t.

    And I could have cried when I heard the congressmen grilling Goldman Sachs CEO’s. They had no idea what they were asking, and could not understand the answers. Don’t get me wrong. I do not believe Goldman Sachs is an innocent victim in this mess, but the dog and pony shows our Congress puts on is embarrassing. And it’s all for political gain. I find it hard to believe they will prosecute Goldman Sachs; just like passing an immigration law, it is to dangle the carrot in front of unsuspecting voters for the November election.

    Our country burns, while our Congress fiddles. I wonder if Benjamin Franklin knew how prophectic his words would be.

    On another note, I find it interesting that all the letters are signed PUBLIUS. Publius was the “Chief man of the Island of Malta” mentioned in Acts 28:7 (Another proof that our founders read the Bible). How appropriate that they used the name of the man who entertained Paul and his companions while they were shipwrecked on Malta, and were seeking a permenant place of residence. Paul and his companions stayed on the island until the stormy season had passed. Could our founders have felt that same way in trying to ratify the proposed Constitution? I find this very interesting and it sheds a new light on this process for me.

  7. Carolyn Attaway says:

    I forgot to add on my previous post, that I believe with Knowledge comes Responsibility. As we read and discuss the Constitution and Federalist Papers, we are being charged with passing what we learn to others. No more couch activists! If we are to help restore our country, we must step into it. Finding the perfect balance between teaching and not preaching, will be a challenge for me, I know. But I heard a great piece of advice that other day on the radio. The talk show host was talking to a priest who works out west. The priest said the difference between liberals and conservatives, is that liberals use their emotions for their arguments, while conservatives use facts. When dealing with feelings, one must tread carefully.

  8. Shannon Castleman says:

    Carolyn, right on. agree with you that Goldman Sach’s is not a Saint. However, if my Economics degree taught me anything, it is this: They have the right to short an invenstment just as we have the right to wait for that new pair of jeans to go on sale. (That is basically ‘shorting’ the position.)

    If people are wise stewards of their money, and diversify their investments like the BIBLE commands, they really wouldn’t be hurt by one bad apple.

  9. Susan Craig says:

    My ‘couch’ efforts have included posting the days revelation on my local news station’s blog site and calling the HS principle and ensuring that the HS was aware of the educational tools and contest available for his students.

  10. Maggie says:

    I, too, am embarrassed at the debacle going on with the grilling of Goldman Sachs…especially since the one doing most of the grilling (and using profanity) is from my district. I agree that those doing the grilling have no idea what they are talking about. Yes, something needs to be done about reigning in Wallstreet but how and at what cost? The government itself is up to its eyeballs in the cause of the financial mess we are in. Our founders KNEW that humans crave and seek power and that power corrupts (“Power tends to corrupt, and absolute power corrupts absolutely. Great men are almost always bad men.”….John Emerich Edward Dalberg Acton). That is exactly why they were so careful in their drafting of our Constitution and the follow up Federalist papers. The government was not MEANT to be Big Brother. Their “powers” were meant to be very limited. Government is neccessary to prevent anarchy, but “we the people” are the ones in power (alteast we are supposed to be).

  11. Robert Shanbaum says:

    What a curious commentary on Federalist #1! Mr. Cooper, could you have written less about the actual content of Hamilton’s essay?

    The bulk of the essay is not about government at all. It opens and closes with a bit about the importance of the decision. But in the middle five paragraphs, Hamilton gets to his main purpose, which is to “poison the well” – to try to bias the reader against the other side, which Hamilton expects to rise in opposition to the new Consititution, before he has a chance to speak. Look at the litany of characteristics that the opponents will have: “ambition, avarice, personal animosity…” They will have some personal interest in the preservation of more powerful state governments (“…power, emoluments, and consequences of the offices…”). Essentially, it’s an exercise in mudslinging – but it’s the most elegant and dignified mudslinging since Marc Antony’s eulogy in Julius Caesar.

    Federalist #1 doesn’t shed much light on the Constitution at all, except to the extent that it sheds light on the way politics worked in the Eighteenth Century. And when I read the following, in which Hamilton predicts how his adversaries will behave, I can’t help but think, this could have been written yesterday:

    “A torrent of angry and malignant passions will be let loose. To judge from the conduct of the opposite parties, we shall be led to conclude that they will mutually hope to evince the justness of their opinions, and to increase the number of their converts by the loudness of their declamations and the bitterness of their invectives.”

  12. Robert Shanbaum says:

    Lillian, you do realize, do you not, that when Hamilton wrote that “a dangerous ambition more often lurks behind the specious mask of zeal for the rights of the people”, he was referring to people whom he expected would oppose the Constitution by arguing that it would give the government too much power to infringe on people’s rights? You realize, don’t you, that those people – the ones who argue that they’re interested in “the rights of the people” – those are the bad guys in Hamilton’s narrative?

    The good guys here, according to Hamilton, are the ones who promote the virtues of a government having “firmness and efficiency”.

    I ask because in your comment immediately following the citation, it sure looks like you could be positioning yourself as one of Hamilton’s bad guys when you argue that the government’s actions are a “power grab enacted on the backs of the American people.” That sounds to me like it could be characterized as a “zeal for the rights of the people.” Whether one would see it as a “specious mask” of the same is probably a matter of one’s political persuasion.

    You might want to read a little more about Hamilton. He’s something of a problem for those who are seeking support in the Constitution for de minimis government. In the Philadelphia Convention, for example, he proposed a centralized government in which the former states were stripped of their sovereignty altogether. (Importantly, to give you comfort, he did not prevail, obviously).

    Elsewhere in these blogs, Hamilton was referred to as “evil” because he favored centralized, powerful government (which he did indeed, to a greater degree than any modern progressive of whom I’m aware). But whether you like his politics or not, he was in fact one of the framers of the Constitution, and he apparently saw sufficient comportment (dare I say, “potential comportment”) between it and his politics to allow him to go to the trouble of working for its ratification by writing these articles.

    To answer your question about how Mr. Hamilton would feel about your alleged “power grab”, I’d say, he would be perfectly alright with it.

    On that same topic, it may interest you to know that in 1798, the fifth Congress created the Marine Hospital Fund, which established a network of federally-run hospitals along the eastern seaboard to care for sailors and seamen, financed by a federal tax on their wages of twenty cents per month. That system persisted into the 1980’s. I think that in addition to what the Founders and Framers wrote, it’s instructive to look at what they did.

  13. David Hathaway says:

    My interest in the Federalist Papers was begun when I read the recent biography of Alexander Hamilton, written by Ron Chernow. It was an interesting read, especially since Hamilton went on to found and The First Bank of The United States, the first Fed. I highly recommend this book.

    I’m sorry that I have delayed reading the Federalist Papers for so long. Thanks for the guided opportunity to make up for lost time.

  14. Karen Sherer says:

    I LOVE this opportunity to really refresh my understanding of the roots of our wonderful country by reading and blogging with all of you about the Constitution and the Federalist Papers! I’ve never blogged before so I was excited to finally find a topic I could respond to that offers something new and, perhaps, worthwhile. @ Carolyn Attaway: you provide so much food for thought, and maybe Madison did name Publius from the Publius of the Acts of the Apostles as the author of the Federalist Papers but the edition I am using had an insightful introduction by a man named Charles A. Kessler. He wrote that Publius Valerius Publicola was instrumental in establishing the republic of Rome. He called Publius the founder and savior of Rome and that Plutarch compares and contrasts this man with Solon the democratic lawgiver of Athens in “Parallel Lives”. Kessler wrote that Hamilton named the author of the papers “Publius” to trump the anti-federalists who were using “Cato” and Brutus” (also heroes of the Roman republic) as pseudonyms for their anti-federalist papers.
    Also @Carolyn: I hope to end my career as a “couch activist” as I become more able to defend my political belief with facts. And I also heard that interview on talk radio about the difference between liberals and conservatives and I find that really true.

  15. Carolyn Attaway says:

    @Susan – Great “couch” activities! I didn’t even think about the local news station blog. Good idea.

    @Shannon and Maggie – I for one am glad that the GOP has stopped the Financial Reform from getting to the floor for debate. I do not trust this Congress with Financial Reform, especially since they will not even address Fannie and Freddie, or want to put more bailouts for Big Banks in this bill. That just scratches the surface. I would love for this Senate to stop anything from going through until after the election AND they address spending!

    And the Founders had it right about Congress should not be a full time job. I cannot even begin to describe my emotions when I heard Tim Geithner comment “I never had a real job”. Doesn’t that spike confidence in his abilities to help the ‘real’ world?

  16. Carolyn Attaway says:

    @Karen – Awesome piece about Publius Valerius Publicola. I find it intriguing that the name Publius is close to the word Public, which can be defined as people constituting a community, state, or nation, or a particular group of people with a common interest, aim. I am really enjoying learning so much from everyone’s input about our founding documents.

    The hardest thing I have found about getting off the couch so far is pulling my friends with me.

  17. Thomas Soyars says:

    While true when written this part may be even more true today:

    “It has been frequently remarked that it seems to have been reserved to the people of this country, by their conduct and example, to decide the important question, whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force. If there be any truth in the remark, the crisis at which we are arrived may with propriety be regarded as the era in which that decision is to be made; and a wrong election of the part we shall act may, in this view, deserve to be considered as the general misfortune of mankind.”

  18. Ron Meier says:

    At my church, we are having a sermon series titled “Get off your donkey.” It is based on the story of the Good Samaritan, Luke 10:34, who got off his donkey to serve his fellow man, even though the injured man was one others, including priests, avoided and refused to help. In like manner, by following this program, we should have the courage to get off our donkeys, armed with the knowledge of what our founders wanted this great country to be, and be ready to “fight the good fight, keep the faith, and finish the race,” 2 Timothy 4:7. We have a lot of work to do, and it’s time to get off our own donkeys and force our leaders to get back on the track our founders placed us on more than 200 years ago. The tea parties are a good start, but only a start. Remember what Edmund Burke said, “All that is necessary for the triumph of evil is for good men (and women) to do nothing.”

  19. Ron Meier says:

    And, thanks to Janine and Cathy for getting this going! Two women who listened to Burke and got off their donkeys.

  20. Ron Meier says:

    Interesting comment when Hamilton says: “a dangerous ambition more often lurks behind the specious mask of zeal for the rights of the people than under the forbidden appearance of zeal for the firmness and efficiency of government.” It’s interesting to me that much of the rhetoric in DC today is supposedly based on making everything better for everyone other than the wealthy; it seems that this is a ruse to convince the people that having more government will make this happen, when the ultimate end game is to maximize control over the majority of the people. 50% don’t pay income taxes now; if the Administration and Congress can move that up to 70% or so, then they’ll have the people right where they want them.

  21. Jesse says:

    As I finished Federalist 1, I concluded that it set out the plan for the series of essays, what was to be discussed, and tried to debunk one of the first objections – that the individual states are better off without being under the umbrella of a nation.

    My personal belief is in line with Federalist 1 – America is a great country because of its ability to bring the talents, resources, opinions and people of the individual states together while allowing the states to experiment and maintain their individuality.

  22. Andy Sparks says:

    Carolyn,

    The Publius pseudonym used by Hamilton, Madison, and Jay was named for the Roman Consul Publius Valerius Publicola who supposedly helped form the Roman Republic. He lived around 500BC, well before the birth of Christ.

  23. Melanie says:

    How impressive you all are in your commentaries! I suspect the only thing our Founding Fathers would be proud of and respect today (were they to awaken to our current state) would be the new rebirth of patriotic activism, the passionate rediscovering of our heritage, and the determination of Americans to restore our great republic to it’s true form of constitutionally limited government of, by, and for The People.

    Lillian rightly appreciates how wise our Founders were in their understanding of human nature, and how delicate and difficult to maintain a limited government would be. I can never get over the profound wisdom of our Founders in that they not only understood the nature of their righteous endeavor, but they understood how unique in the annals of all human history their undertaking was! They were IN the moment, and they KNEW they were in the moment. How grand! Lillian, it does just blow one away.

  24. Chuck Plano, Tx says:

    Carolyn here is a question, if to become a naturalized citizen you must be able “to speak, write and read words in the English Language in their common usage” and it is violation of the law to vote if you are not a citizen, why do we need to print voting ballots in any language but English and provide interperters at voting places as is required by the Voting Rights Act of 1964? Is it because we knowing allow People who are not Citizens to vote?? I have ask this question of Congressmen in the past and have never received an answer.

  25. Shannon Castleman says:

    Chuck, great point. As a matter of fact, that is the main reason Obama and his ilk are against the AZ law-because many of their voting base will leave. The Democrats have to rely on illegal votes/ACORN tactics/the Black Panthers with their bats at a voting place in Philly, etc. to win an election.

    They cannot win on the merits of the debate.

  26. Carolyn Attaway says:

    @Chuck – That is a good question. I do believe all official tests, such as citizenship, driver’s licenses, voting, etc, all should be in English. But keep in mind, there are many in Congress who do not want to make English the official language of the United States. As a matter of fact, do we even have an offical language yet?

    According to Congress.Org – ’2/26/2009–Introduced.National Language Act of 2009 – Makes English the official language of the U.S. government. Requires the government to: (1) conduct its official business in English, including publications, income tax forms, and informational materials; and (2) preserve and enhance the role of English as the official language of the United States of America. Provides that no person has a right, entitlement, or claim to have the government act, communicate, perform, or provide services or’
    Bill # H.R.1229

    Original Sponsor:
    Peter King (R-NY 3rd)

    Cosponsor Total: 31
    (last sponsor added 04/21/2010)
    1 Democrats
    30 Republicans

    Only 31 sponsors, pretty amazing huh?

  27. Horace Cooper says:

    Several commenters have mentioned that Hamilton’s repeated preference for an efficient central government meant that he would embrace the sizeable federal government that exists today. However no fair reading of Hamilton and his writings would yield this assessment. Hamilton’s arguments about a strong central government should be juxtaposed against the organizational handicaps of the government that existed under the Articles of Confederation. His view was that the government needed to more capable and agile in order to accomplish the limited set of objectives outlined in the Constitution — not the all encompassing objectives presently undertaken by the modern Federal Government. Additionally as a member of the burgeoning merchant class Hamilton believed that there was a fundamental responsibility of the federal government to encourage commerce. For him the lionshare of the regulatory state would be anathema.

    H Cooper

  28. Rob D says:

    @Robert S:

    Liberty basically means limiting other people’s power, and to do this effectively, you support a lesser power against a greater: the pope against the emperor, the king against the pope, the parliament against the king, and so forth.

    When the States dominated, it makes sense to strengthen the central government. Now the balance is tipped the other way, so we oppose Washington’s excesses.

    “Power being almost always the rival of power, the general government will at all times stand ready to check the usurpations of the state governments, and these will have he same disposition towards the general government. The people, by throwing themselves into either scale, will infallibly make it preponderate. If their rights are invaded by either, they can make use of the other as the instrument of redress.” —Hamilton, Federalist #28

    Also, please let’s appreciate our guest commentators. If there’s more to add, then you can happily add it.

  29. Andy Sparks says:

    Robert,

    You are right on. The Federalist essays are propoganda! They were written specifically to convince New Yorkers to ratify the constitution because many parts of that state had anti-federalist sentiments. It’s important to remember that Madison and Hamilton were strong supporters of a more energetic federal government. Both had witnessed first hand the anemic government under the AOC as representatives from their respective states. They were not proponents of limited government (Madison would become so, but not at this time). In fact, Madison had proposed that the Constitution allow the federal government to negative any state law and was deeply concerned when it was not adopted. Hamilton all but proposed the government be an electable monarchy with the executive and Senate being elected for life. Hamilton, of all the founders, would probably be the most proud of how the USA became a world superpower.

  30. Debbie says:

    The signing of the the name Publius interested me enough that I looked up the definition in Wikpedia. The name Publius is a Roman masculine given name meaning “public” in Latin, one of the small group of common forenames found in the culture of ancient Rome.

    There are also references to other Publius names, such as: Publius Valerius Publicola (Roman Consul), Publius Clodius Pulcher (Republican politician), Publius Cornelius Scipio (Roman Consul), Publius Quinctilius, (Roman General and Politician), Publius Clodius Thrasea Paetus (Senator during Nero’s Reign), and Publius Aelius Fortunatus (Roman Painter).

    In actual fact we may never really know who was the real Publius, or was the name used because it meant public.

  31. I so love this, hello everyone. There is so much going on these days that you could almost lose your place if you didn’t press to maintain your focus . I am not complaining but I find the rapid fire of the political scene makes me ponder some of the tactics outlined in the book- Rules for Radicals -. This site is so helpfull,giving an intellectual boost via articulating my own as well as marinating my thoughts in all that is offered on this site.I watch and listen to cable news and radio programing to gather opinions,and while I value the points of view,this site has helped.
    Someone said that we should get rid of Social Security, Medicare and some of the Health care bill,I have to respecfully say if that were to happen, I would be mad as a hatter…. I have been paying into these (not health care )for well over 40 years, holy mackeral that would probably cause many of us older folks to get out our pitch forks.As I would be in the front line. I understand (I think) the point that was trying to be made but fair is fair.
    AZ,I am following this situation very closely and have heard things that range from the sublime to the ridiculous.Bottom line the Goverment has failed and in their failure have denied the citizens in boarder states and all states actually their Constitutional Rights. This group of people are not fullly included in the discussion of civil rights and I don’t think for one minute that it is a mistake.To stand the two groups side by side might provide too much lite on the subject for any real question to even be proposd.The Feds need to get off thier butts and do their jobs,.
    Debate debate debate is the name of the game ,what I find distressing is the demonizing of opposing opinions, . This keeps us honest, or should ,using tricks or slight of speech is a shame.
    Enough from me I guess I should get down off my soapbox. Good Night all.

  32. Shannon Castleman says:

    Andy, good comments. However, I take a different approach than you based on your comment: “It’s important to remember that Madison and Hamilton were strong supporters of a more energetic federal government.”

    It is my belief the reason they wanted a more energetic Federal Government is because under th AOC, the feds couldn’t even raise taxes in order to fund what the constitution stipulated.

    I would rather ask a different question: Pick the most ‘big government’ “Founding Father”, bring him bck to life, bring him to America in the year 2010, and ask him his thoughts.

    Tell that Founding Father that the feds and state governments want to tell me how much salt to eat, want to tell McDonald’s they can’t serve toys with Happy Meal, want to tell cops in AZ they can’t research someone’s citizenship who has been pulled over for a DUI, want to tell me I have to purchase health care insurance, and then record their thoughts.

    I don’t believe the quotes would be printable:)

  33. WeThePeople says:

    @Peter, I too find that interesting that Hamilton and Madison went on to be so influential. It’s odd that their beliefs, or at least one of them, changed. But wasn’t Andrew Jackson behind the creation of the democratic party?
    I think that by signing the papers by the name PUBLIUS, the actual writers separated themselves (all of them being significant political figures of the time) from the Federalist Papers, and made the connection back to the people. I think that, despite the elevated language, it would make the public feel more closely related to the topics addressed in the papers. It would make them feel like the concerns expressed here should be theirs as well.

  34. Tricia Revolinsky says:

    “From its inception our Constitution’s validity was tied to the notion that formal acceptance and ratification by the people and the state legislatures was necessary in order to be legitimate. Our Constitution was neither self-enacting nor imposed from a ruler.”
    What confuses me about this is that the creators of the Constitution decided that the Constitution was effective immediately and that the Articles of Confederation were debunk. They didn’t wait for all the states to ratify that the AOC was now null and void. They hoped that most of the states would ratify it and all the others would fall in behind them. Only after stubborn little Rhode Island ratified it, did it really become a true document formally accepted by the people. Until that point, the Constitution was in all respects, self-enacting.

  35. Carolyn Merritt says:

    The US Constitution that Hamilton, Madison & Jay defended has become one of the most copied and admired documents in the history of mankind. The Federalist itself was published in Spanish in 1811 by the Venezualan Manuel Garcia de Sana, along with copies of the Declaration of Independence and the Constitution. The Federalist influenced movements in Argentina, Mexico, Brazil and in Europe.

    Hamilton believed in the future greatness of America and believed that our nation could and would be one of power and strength. He somehow knew the United States would be a world power. (And wouldn’t apologize for it either).

  36. the articles of confederation was an absolute disaster. The states didnt wait to ratify it and because of this many problems arose. Even after the constitution was formed these states were fihting over many other issues than the ge=reat compromise resolved. ONly after rhode island ratifed the constitution did the people of the new wnited states accept the constitution. Be fore this document was ratified howver, the articles did a bad job at holding the counrty together, and only after the constitution was formed did the US truely become a self sustaining nation.

  37. Greg Zorbach says:

    In response to the two posts by Robert Shanbaum, in no particular order:
    Of course “Federalist #1 doesn’t shed much light on the Constitution at all.” It is, after all, titled “General Introduction.” As Mr. Cooper points out, The Federalist Papers “were published in several New York State newspapers to persuade New York voters to ratify the proposed constitution that had been crafted at the Philadelphia Convention in 1787.” It seems to me that to argue means to point out the superiority of your argument and the flaws in opposing ones, as well as any ulterior motives that may exist in those making those opposing arguments. I’m perplexed as to why you would find Mr. Cooper’s blog to be “curious.” He is after all, commenting on a general introduction to an 85-article two-volume set. It did not surprise me that: “The bulk of the essay is not about government at all.” It was billed as an essay on Federalist I, which got the process of persuasion under way. As Mr. Cooper put it: “Premised in his argument is a fundamental foundation upon which our system of government is based — self-government or rule by the consent of the governed. From its inception our Constitution’s validity was tied to the notion that formal acceptance and ratification by the people and the state legislatures was necessary in order to be legitimate. Our Constitution was neither self-enacting nor imposed from a ruler.” Messers Hamilton and Cooper were both setting the stage for what was/is to follow.
    The sense I got from this rereading of Article I was that Hamilton was attempting to introduce the Publius articles by remarking on the “mud-slinging” as you put it, that had marked debate to that point in order to keep that most-important public dialog (as Jay puts it in today’s reading – Federalist II) more substantive, and with candor, even good will. The history of politics is replete with evidence of Hamilton’s warning that those who would stand to lose power (the states’ legislators) under the new Constitution would oppose its ratification, regardless of the strength of the arguments for it. We see that same dynamic in play today: Congress will never vote for a flat tax or term limits: too much restriction on their power. (The closest to the exact opposite I can recall in my lifetime was the new Republican-led congress voting on the first day in session to limit the terms of its committee chairmen.) Hamilton goes on to admit that “Candor will oblige us to admit that even such men may be actuated by upright intentions…blameless at least if not respectable.”
    As you point out, of course Hamilton was on the side of a more-powerful centralize government. That was the point of the Constitutional Convention: to fix the weaknesses in the governing Articles of Confederation and the resulting weak federal government. I do not believe that Hamilton was (or does in subsequent articles) see ‘good guys’ or ‘bad guys.’ It is true though that, as you put it: “Whether one would see it as a “specious mask” of the same is probably a matter of one’s political persuasion.” After all during the previous administration dissent was characterized as patriotic. Today the Tea Partiers are accused (by a former president no less) of fomenting violence.
    I believe that a main genesis of our current exercise of rereading the Constitution and the Federalist Papers is rooted in how far the federal government has strayed from the Constitution, especially from the Tenth Amendment. In that regard, the Anti-Federalists and other skeptics were correct to insist on the Bill of Rights. Although the fact of the Tenth Amendment’s inclusion seems to have had no obvious effect on limiting the federal government’s powers to those enumerated in the Constitution.
    Upon rereading Lillian’s blog, I have no doubt that she understands where Hamilton’s views lie. After she lauds the Anti-Federalists, she makes the basic point of Article I (and our current civic exercise) quite nicely: “Without that rich debate, would we have ever gained the deep appreciation for the liberty and prosperity that was possible as this country grew?” You do realize, do you not, that it takes arguments from both sides of an issue to have a rich debate? Is not the point of any debate or series of articles on an important public issue to “to bias the reader against the other side”?
    As to the question of how Mr. Hamilton would feel about the healthcare “power grab” Lillian mentioned, I disagree in your conclusion. First, we don’t know how Hamilton felt about the issue of establishing hospitals for soldiers and sailors. (Since he served General Washington admirably and loyally, I can hazard a guess.) Secondly, the only thing that the concept of caring for those who flight our wars and/or defend our liberties has in common with the current government’s takeover of the entire nation’s healthcare system is that both are/were federally run. Enlisting in the armed forces requires one to give up significant personal rights and freedoms. In turn, the country, with the government as our agent, provides for those individuals. Not many of us who will see our healthcare choices inevitably restricted under the new law ‘enlisted’ in anything, but we will see our freedoms and liberties limited nonetheless. I believe that Hamilton would be perplexed, if not appalled. In fact, Shannon may be right: his reaction may not be printable.
    OBTW, very nice post, Melanie.

  38. Daniel Smith says:

    Given the history of large governments in the past why do you think Hamilton had such faith in this new county?

  39. Andy Sparks says:

    @Shannon – Undoubtedly, you are right. But then again, Madison and Hamilton probably could not conceive that women and blacks would ever be elected as representatives of our government, or be able to even vote for that matter…

  40. Melanie says:

    Janine, the new series, “America, The Story of Us” is wonderful. The focus of the narration seems to be the deep faith, the independent spirit, and the determination of the Americans to live unfettered lives of limitless possibilities! I was thrilled to hear the commercial announcement that every school in America will receive the DVD series. Let’s hope it is put to good use. (And let’s hope its message remains unchanged.)

    The First Amendment “Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof…” when clearly understood, is so powerful! It makes me want to come to the defense of people of all faiths. If we don’t reclaim and assert our religious heritage, and stand up against the progressive secularization of our country, we will be lost as a nation, and the world will be lost. A little good news today… the Supreme Court upheld the right of the Mojave Desert WWI War Memorial to display the Cross.

    The more we study these writings, the more profound the gems we find.

  41. Robert Shanbaum says:

    Greg, thank you for responding to my comments.

    I did not write that I thought my observations were surprising, and I apologize for being critical of Mr. Cooper. However, I thought that remarks on Federalist #1 should probably include some comments on the content of Federalist #1, and not just reflections on its title, and that’s what I was trying to (happily) supply.

    I didn’t realize that the object here was to learn about “how far the federal government has strayed from the Constitution”, but to learn about the Constitution. An intellectual inquiry that begins with the former purpose may well find its object, but it will fail to understand its subject well, as only that which was sought will be revealed.

    I am not convinced that the oft-cited fourth paragraph has been well understood here. My use of the term “good guys” and “bad guys” was an attempt to use modern vernacular to describe that which is couched in the unfamiliar prose of another era. If you think that Hamilton was not trying to set up the debate as between what we would call “good guys” (his side) and “bad guys” (the other side) in that paragraph, what do you think he was saying?

    I do indeed realize that a debate requires two positions. A debate does not, however, require what Hamilton has done here; that is, attempting to demonize his opponents before the actual debate begins. I am not passing judgment on the use of this technique – I’m simply observing that that appears to be his main purpose here.

    By the way, the Marine Hospital Fund (and its related income tax) covered not just naval personnel, but merchant seamen as well. Also, I am curious about your comment that the healthcare plan will restrict your healthcare choices, and thereby limit your freedoms and liberties: if this or some other healthcare plan implemented by the government were to increase the number of choices available to you, would that expand your freedoms and liberties? Would that make it OK?

    I do agree that Hamilton’s reaction, and for that matter, the reactions of all of the founders and framers, to the modern federal government, and for that matter, the modern world in general, might well be perplexity and dismay (though I think sheer shock would be the most likely reaction); after all, those are reactions of many who have grown up in it.

    With regard to Mr. Cooper’s comment, wherein he disagreed with my conclusion as to what Hamilton’s possible reaction to healthcare reform might be, saying that Hamilton would have been attached to the enumerated powers in the Constitution, I refer both of you to Hamilton’s actual proposal for the new general government, which you can read here:

    http://avalon.law.yale.edu/18th_century/debates_618.asp

    Also, you may find his side of a debate with Jefferson regarding the chartering of a national bank informative:

    http://avalon.law.yale.edu/18th_century/bank-ah.asp

  42. Dale Swartzel says:

    Wonderful article! I think I understand a lot more about what the founders were trying to say and why. Thanks so much.

  43. Ross Bigney says:

    To me the most important lesson from Federalist #1 is the importance of hearing again that even the greatest idea — for example the Constitution — isn’t valid unless the people consent. Our founding fathers were marvelous people — they had such foresight. And people like George Washington who were popular enough that he could have become king of our country but would not. They are truly marvelous people.

  44. Arizona lawmakers have approved changes to the state’s controversial law cracking down on illegal immigrants. The changes were designed to answer charges made by protesters that it will lead to racial profiling by police. The original law stated police can conduct an immigration status check during any quote “lawful contact,” if they have reasonable suspicion a person is an illegal immigrant. It replaces “lawful contact” with “lawful stop, detention or arrest,” clarifying police may not stop people without cause. The revised law also removes the word “solely” from the phrase “The attorney general or county attorney shall not investigate complaints that are based solely on race, color or national origin.” Read the new Arizona Immigration Law

  45. Kristine says:

    Please note, there is a great article enitled “Could the Constitution stop the new health-care law?” by Nathan W. Tucker in the Christian Science Montior Volume 102, Issue 23 (current issue..weekly publication.) In it he mentions that the enumerated powers of Article I, Section 8 do not mention the power to “legislate our health.” He goes on to discuss why the common claim by Congress that the Commerce Clause, and Tax and Spend Clause, and references to general welfare do not support the power grab of mandating the purchase of healthcare. He also mentions the “FEDERALIST PAPERS.”

  46. Rod Criscillis says:

    That is some inspirational stuff. Never knew that opinions could be this varied. Will all of the Federalist Papers be brought down to earth in such a compelling way? Thanks for all the enthusiasm to offer such helpful information here.

  47. Susan Craig says:

    I don’t know about the suffrage of other races but I see no reason that they couldn’t imagine the suffrage of women because women had suffrage in the late 1700 in the state of my birth New Jersey.

Guest Essayist: Marc S. Lampkin, partner at Quinn Gillespie and Associates LLC and graduate of Boston College Law School

Thursday, April 29th, 2010

Federalist Paper #2 was written by future Federalist party chieftain John Jay to address what many founders felt was a critical deficiency regarding the then existing government authorized by the Articles of Confederation.  The deficiency was the major vulnerability the young nation faced because it lacked sufficient national authority to defend itself or to enforce its laws.

Reflecting his view that the public “choose” the new central government contemplated in the Constitution rather than simply acquiesce in it, Jay presents his arguments in terms of the “self interest” of the readers.  “It is well worthy of consideration therefore, whether it would conduce more to the interest of the people of America that they should, to all general purposes, be one nation, under one federal government, or that they should divide themselves into separate confederacies, and give to the head of each the same kind of powers which they are advised to place in one national government.”

John Jay was the oldest contributor to the Federalist Papers at age 41.  Jay, a staunch abolitionist who would go on to become governor of New York and successfully ban slavery statewide, also had served as President of the Continental Congress and was a principal negotiator of the Treaty of Paris.  After the U.S. Constitution was ratified, he would become the first Chief Justice of the United States Supreme Court.

At the time of the writing of Federalist #2, it had only been a few years since the Revolutionary War had ended.  Although the Americans had just successfully defeated one of the most powerful military forces on the planet when it successfully won its independence against England, barely five years later the capacity to carry off a similar feat was dramatically undermined by the operation of the Articles of Confederation.  In addition, compounding matters there was increasing sentiment among the political class that instead of presenting a “united” front as part of a United States of America, the states should actively consider whether even the loose association authorized by the Articles was either useful or worthwhile.

John Jay vigorously argues that not only should the states remain united; they should adopt the proposed Constitution’s federal style of government.  It was Jay’s view that the crisis of the Revolutionary War had led to the hasty creation of the Articles of Confederation and even as its defects became apparent, those deficiencies were not great enough to prevent America from prevailing in the war.

Now that the war was over, the problems of the Articles had been so severe that the Philadelphia Convention had been convened to attempt to ameliorate its difficulties.  Of course the result of the convention was an entirely new compact being drafted.  The central theme of this compact is that it contains a Federal Government with specific authority and power to carry out its limited but important duties in a way that the Federal Government authorized under the Articles of Confederation could not.

John Jay presents two basic premises that are basis for his argument:  it is a fundamental responsibility of government that it has the necessary power to regulate conflict and administer the laws it has lawfully enacted.  Secondly, in order for any grant of authority to be legitimate it must be consensual — that is the people must grant the government the powers.

While Jay recognized that any of the government powers exercised ultimately came from the people, the issue was which of these powers should be reserved for citizens and which were usefully granted to the government.  The test for Jay was whether a particular grant of authority best protected the safety and interests of the American populace.   However, this problem was made more difficult when the question of whether the Americans should unite under one national government or instead become separate states.

To Jay the answer was a strong union. He believed that for all intents and purposes, the confederation of states were already a union.  He argued that the geographical make up of the nation including its topography and “navigable waters” created natural boundaries that encouraged commonality.  Additionally the faith, language, principles and customs of the people who dwelled in this land which were overwhelmingly similar also argued for a strong union.

“This country and this people seem to have been made for each other, and it appears as if it was the design of Providence, that an inheritance so proper and convenient for a band of brethren, united to each other by the strongest ties, should never be split into a number of unsocial, jealous, and alien sovereignties.”

Since the land, people and language made it naturally more efficient to remain together then Jay believed that it was essential that the government they were subject to had the authority and power to carry out its duties in a way that the Articles of Confederation had never allowed.  “It has until lately been a received and uncontradicted opinion that the prosperity of the people of America depended on their continuing firmly united, and the wishes, prayers, and efforts of our best and wisest citizens have been constantly directed to that object.” It was John Jay’s considered view that the adoption of the Constitution in the long term would prove beneficial to all Americans both in a time of military conflict and in times of peace.

Marc S. Lampkin, partner at Quinn Gillespie and Associates LLC is a graduate of Boston College Law School

 

Friday, April 30th, 2010

Essay # 3 investigates the causes of war. Publius seems to raise the question, not merely from curiosity but rather because it’s important to be prepared to prevail in war and also to place one’s state in the position to avoid war. The Federalist Papers seem to adopt this perspective in its approach to foreign policy inquiring not how to adopt an active posture for engaging in war but rather how to make war as little likely as possible. The argument is laid out by the end of the third essay, and then stated outright in the fourth essay, where he says of the American people, “Wisely therefore do they consider Union and a good national Government as necessary to put and keep them in such a situation as instead of inviting war will tend to repress and discourage it.” This deterrence theory is based on a number of factors deriving from human nature, and it therefore forces us to ask whether Publius generally understands the causes of war. Again, in the third essay we see a claim that the pace of America highly depends upon observance of the laws of nature towards all foreign powers, a thing more perfectly accomplished in proportion as we have one national government rather than thirteen or some other number of states. We expect, therefore, to close with an argument from efficiency, less chance, greater consistency, and greater stability in foreign relations.

Surprisingly, Publius does not do that in the third essay. He instead states the following: “When once an efficient national government is established, the best men in the country will not only consent to serve, but also will generally be appointed.” He argues not from efficiency but from the character and talents of the officeholders. The first reason for increased national security is clearly that one obtain the best statesmen. The question of safety calls for intelligence and consistency.

It is wise to avoid war, and Publius illustrates this by arguing that “Hence, it will result that the administration, the political councils and the judicial decisions of the national Government will be more wise, systematical, and judicious, than those of the individual States, and consequently more satisfactory with respect to other nations, as well as more safe with respect to us.” The chief means to avoid war is good order at home, and it includes satisfying other nations.

A third reason for a foreign policy of justice and consistency is that the national government will avoid tempting other nations to offend the United States because a United States that is well organized will be successful and prosperous, and that is what will bring peace. It will dispose other nations to cultivate our friendship as well as yielding strength. This will attract other nations into peaceful association, and this is what makes it possible to avoid war.

W. B. Allen

Michigan State University


Professor William B. Allen is emeritus dean and professor of Political Philosophy at Michigan State University.

39 Responses to “April 302010 – Federalist No3 – The Same Subject ContinuedConcerning Dangers From ForeignForce and Influence (Jay) – Guest BloggerWilliam BAllenProfessor of Political Philosophy at Michigan StateUniversity

  1. Susan Craig says:

    So far the argument for union, is the implied understanding that in strength there is peace.

  2. Carolyn Attaway says:

    There was so much in Paper #3 that lends itself to a good discussion. However; the 3rd and 4th paragraphs sum up the whole paper for me when John Jay talks of Foreign Arms and Influence; and Like Kind arising from domestic causes. And whether the wars happen or will happen because of REAL or PRETEND causes that will PROVOKE or INVITE them.

    I am constantly amazed at the insight our Founders had regarding the present State of the Union during their time, as well as future conditions that could, and most likely will, occur. Without the strength of a Union, the individual states existence were in danger because of their lack of reinforcements from the other states; that combined with their statenot only ensured safety of external forces, but internal conflicts as well.

    Think of all the small countries in Europe that have been abolished and/or reformed into other countries because of internal or external conflicts. The country of Yugoslavia, for example; until 1941 was the First State of Yugoslavia with a monarchy rule. The Second of Yugoslavia was from November 29, 1943 until June 25, 1991, and it was a socialist successor state to the Kingdom of Yugoslavia and existed under various names.

    The Federal Republic of Yugoslavia was from April 27, 1992 until February 4, 2003 and it was a federation on the territory of the two remaining republics of Serbia and Montenegro.
    The Union of Serbia and Montenegro was formed on February 4, 2003, and officially abolished the name “Yugoslavia.” On June 3 and June 5, 2006, Montenegro and Serbia respectively declared their independence, thereby ending the last remnants of the former Yugoslav federation.

    This present day example could have very easily happened to any individual state during the Founders time if they allowed themselves to believe they were stronger as an individual entity as opposed to an entity within a greater union. As John Jay explains, there were threatening forces for the Border States, as well as internal conflicts with native Indians within other states. With a Union, individual states were protected from aggressors, as well as being prevented from becoming a rogue state that would threaten the security of the Union.

    Today, many of our states are experiencing turmoil from neighboring countries, other states, and citizens. The Founders had put in place measures on the Federal level to keep the Union secure. However; I find it ironic, that today it is the Federal government that is threatening the security of the Individual States.

  3. Chuck Plano, Tx says:

    The very argument that is made in Federalist #3 for Peace through Strength was the very essence of the Ronald Regan Administration. Remember when he refused to give up SDI and the media belittled him and yet what do we see today, missile defense. When Regan let the summit in Iceland go with out an agreement with the USSR on arms control every one said we were doomed and yet who fell from the world stage, the USSR and not the United States. The most important question is where are we headed today and how will we mantain our strength when those who are supposed to be our leaders and willing to give up our strenth by crippling our economy after all it is economic strength that produces the real stength in any nation.

  4. Bill Kenagy says:

    In “strength bringing peace” the opportunity then will present itself to aid our fellow man rather than war with our fellow ma.

  5. Shannon Castleman says:

    Chuck, insightful. I fear where we are headed today is disater on a global scale. I think Jay ande others of the time would tell us today, “Let’s be as strong militarily as e can, so that others will not cause us harm. In return, let’s not have troops in fifty nations, (lik we do today), so that other nations will not feel the need to wage war against us.”

    What better use of our resources if we took 80% of the troops we have spread around the world and secured our borders, south and north. I care not what the North Koreans do (our troops there); I care intensely what the Mexicans do.

  6. Susan H. says:

    Hi All,

    I’m catching up on my reading today. Thank you everyone for your great comments.

    I was struck today by the passage “Because when once an efficient national government is established, the best men in the country will not only consent to serve, but will also generally be appointed to manage it…..” I feel like maybe at this point in time we don’t have the best men or women in the country serving. Of course this behooves the population to place better people in office.

    I also wanted to say that I agreed with the comment from a few days ago regarding how the founding fathers WANTED the people to know what the government was doing. It really does feel to me like the present government is being sneaky.

  7. Randy Nutt says:

    I took from Federalist #3 the need for a centralized govt to protect the whole of the States and wage war if necessary… Federalist #3 ties in to the border question we have today in my opinion… if we have between 12 and 25 million illegals crossing the border and Art IV section 4 of the Constitution has the Federal Govt responsible for protecting the borders from an invasion, then if the numbers I stated are correct, what, pray tell, would constitute an invading force than up to 25 million non-citizens?

    Just saying…

  8. Chuck Plano, Tx says:

    Shannon it is very frightful as we see what is going on, on our southern border. In the late 1980′s after Casper Winberger was Secetary of Defense he wrote a novel outlining 5 senerios where the USA could fing itself in war. One of those was Mexico, as that country would become so corrupt and violent due to it’s drug problem that the US would have to send troops to stabilize it in “our” national security interest. It appears we have reached that point but our Federal Government has niether the plan or the will to do so much less secure our own borders.

  9. Morning. It’s Janine. I think it is very interesting and quite relevant how John Jay talks about the states dealing with their neighboring countries in a passionate manner as opposed to the Federal government who would deal with the state’s neighboring countries in a cool, objective manner.

    This begs the question: If the Federal government is to protect the states re her foreign borders then should they not neglect the states needs and causes? What happens if the states are left in middle of desperate situations with no aid from the Federal government. Is this where the Tenth Amendment comes into play?

  10. Susan Craig says:

    I think that in their worldview the order of responsibility went person, family, local, state and last and only as a final resort federal.

  11. Damon Wilson says:

    Professor Allen points out something that I’d never thought about before — the question of what should nations do to avoid invasion. It appears that the founders didn’t think that merely being friendly was a sufficient basis for ensuring that one would be free from an attack. President Reagan comes to mind, but I’d be curious what Presidents over the 20th and the 19th Century before thought about this principle?

  12. Gary says:

    Janine. I think your scenario is a prime example of when the 10th Amendment would be very operative. After all, the central government cannot state that an obligation is Constitutionally reserved to it, then refuse to exercise that obligation. I beleive Congress has defacto abrogated the right to “control naturalization” and the sovereign states must do it themselves.

  13. Carolyn Merritt says:

    @Constituting America and Gary: James Madison wrote in the Federalist No. 45 that “The powers delegated by the proposed Constitution to the Federal Government are few and defined. Those which are to remain in the StateGovernments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace negotiation, and foreign commerce;…The powers reserved to the several states will extend to all the objects , which in the ordinary course of affairs, concern the lives, liberties and properties of the people, and the internal order, improvement, and prosperity of the state.”

    In my humble opinion, I believe Arizona is correctly operating under the States’ Rights set forth in the 10th Amendment because the Congress is not doing its duty to protect Arizona from its loss of life, liberty, property and prosperity.

    What say someone else?

  14. Carolyn Merritt says:

    Federalist #3 is the first of 3 of Jay’s arguments that the Articles of Confederation are inadequate for our defense. In this third paper, Jay puts great emphasis on the reasoning for a national united Government as opposed to the 13 states each governing their own way.

    He states that we Americans long hold the belief that in order to continue with peace and prosperity; we do so under a single governing body, the federal government. The first provision by the governing body is the safety of our Country and We the people. Though the Founders were more concerned about our being protected against foreigninvasions and influence, they were also concerned even then about the dangers of domestic insecurity. Jay goes on to state that through a friendly and efficient national government can we best be protected from foreign hostilities. Our Nation would not be the provocateur because we would be an America that is united. “The Union tends most to preserve the people in a state of peace with other nations.”

    Jay goes on to state that it is extremely important that in order to maintain the peace of America we respect and observe the laws of nations in which we have signed treaties and this can be done only by and through one united Government, not by the several states or sovereignties.

    He gives the sound reasoning as to why we needed a national government run by men of intellect appointed to serve wisely, systematically, and judicially. Jay felt that left to their own governing, separate states would selfishly guard their own peoples and borders.

  15. Maggie says:

    Federalist #3, for me, drew the strongest parallel thus far to what we are experiencing today. Jay states that “Among the many objects to which a wise and free people find it necessary to direct their attention, that of providing for their SAFETY seems to be the first.” Has our government lost sight of this? “We the people” have stated time and time again that our biggest concern is safety. Jay also states that “The neighborhood of Spanish and British territories, bordering on some States and not non others, naturally confines the causes of quarrel more immediately to the borderers. The bordering States, if any, will be those who, under the impulse of sudden irritation, and a quick sense of apparent interest or injury, will be most likely, by direct violence, to excite war with these nations”. Doesn’t the Federal government have a duty and an obligation to HELP AZ? Is this not one reason WHY a centralized government was established rather than having several smaller governments?

  16. Maggie says:

    @ Carolyn….I too was struck by the fact that our founding fathers had the foresight to understand that dangers can come not only from “Foreign Arms”, but can also arise “from domestic causes”. These wonderful men seemed to have thought of everything that could possibly go wrong. God Bless them.

  17. Susan H. says:

    To Carolyn M.

    I wholeheartedly agree that AZ is doing the correct thing considering that the Federal government can’s seem to find the will to protect that border. Here we are reading the writing of our founding fathers arguing that the federal government is needed for just this sort of thing and yet currently the federal government is failing. It will be interesting to see if any other states follow suit in this issue.

  18. Howdy from Texas. I thank you for joining us today and I thank today’s guest scholar, William BAllen, for his words of wisdom about Federalist Paper #3. Thanks William!

    What I continue to find fascinating is how the Federalist Papers are consistently relevant today. John Jay’sFederalist Paper #3 is one that really motivates contemplation. Publius speaks about how the unity of the country, the states, is the best way to combat an enemy or foreign intrigues. Unity, a house united, is definitely more advantageous than a house divided. Objectivity trumps subjectivity.

    Yet, if the states are to acquiesce their rights and inclinations to defend themselves, then it is the duty of the Federal government to adequately protect the states. The father must protect his children. The Federal government needs to pay heed.

    John Jay provides examples of how domestic disputes amongst small countries in Europe often lead to major battles – battles that then enveloped several nations for many years. We have certainly seen this repeat itself subsequently and most recently in the 20th century yielding morbid and tragic devastation.

    During our country’s infancy, unity amongst the states was paramount for a strong and unilateral defense.
    However, ironically, the same principle applies today. With the current situation in Arizona, we should remain first and foremost unified in dealing with the crisis at hand. Brother against brother, state against state, breeds contempt and failure.

    It is prophetically proposed by our founding fathers that a unified action yields the best result for the nation.
    Let us remember that unity will reign victorious and gather wisdom to deal with all obstacles.

    We are the United States of America.

    God Bless,

    Janine Turner
    April 302010

    P.S. Don’t forget to check out our “We the People 9.17 Contest” for kids, my daily Video Podcasts and the archive of the daily essays written by Cathy and me and our daily guest scholar!

  19. Susan says:

    I am struck by the amount of thought put into these papers to explain the authors’ reasoning for the adoption of the Constitution to the people. It is a stark contrast to today’s bills which are so long and convoluted that I don’t think anyone can read them let alone explain them and probably few even try.

  20. John Harris says:

    I believe some of the founding fathers had an idealistic view of it’s new country and republic. Most specifically, Monroe believed that the brotherhood of republics transcended national boarders and expansion of induvidual liberties was central to the policies of modern governments born of revolution and the revolution would tear down national bounaries and unite mankind. Once the revolution was over he/they realized real quick that self interest was a greater force than any republic. England, France and others coveted the riches of the new world. The founding fathers found themselves having to preserve the united colonies (thank you Federalist Papers), protect them from invasion and promote trade abroad. And the best way at the time was through diplomacy and not war.

    Translating to our present situation we find ourselves relying on others for natural resources, trade abroad has resulted in a large deficit, and our boarders have been invaded. It is vital that every citizen in America today understand our Constitution and how it was formed. If we dismiss the wisdom of our forefathers we are doomed to tyranny.

  21. Jesse Stewart says:

    You all have said things that struck me when reading Federalist 3. But what really stood out, as others have suggested, was that the best men will fill the roles of “administration, the political counsels, and the judicial decisions” of the national government because there is a large population in the Union from which to draw these men.

    Would Jay roll over in his grave given the quality and honor of those serving today? It is our responsibility as citizens to ensure that the “best men” are filling those important roles!

    PS: realized I didn’t put my last name on previous comments; not intentional!

  22. Eli Hazelett says:

    There would seem to be many ways that a country could fall apart — does an invasion have to be formally waged by a nation as such or can it come from an unorganized group?

  23. Peggy Brittain says:

    “The pride of states, as well as of men, naturally disposes them to justify all their actions, and opposes their acknowledging, correcting, or repairing their errors and offenses. The national government, in such cases, will not be affected by this pride, but will proceed with moderation and candor to consider and decide on the means most proper to extricate them from the difficulties which threaten them.”

    It seems to me that our national representative government has turned this around. They are the ones who justify their actions, and oppose their acknowledging, correcting, or repairing their errors and offenses.

    If we cannot believe in our national government to protect us from harm and ensure our safety then don’t the states have the right to protect themselves?

    I don’t think our founders intended for our representatives to be career politicians. This state has led to our elected officials being more protective of their own self interests and their voting blocks than protecting the citizens of the states. Today, the interests of our elected officials is all about power and control. To them our founding documents are living documents meant to change with the times. I am learning that it is just the opposite. Our founding documents are just as relevent today as they were at the time of their writing.

  24. Christina Quinn says:

    It is staggering to me from our vantage point now looking back through time that that we in this present generation have so much greater abilities than our forefathers to both study historical documents and communicate to our fellow citizens, yet do not. It was beyond comprehension that a day would come where information regarding all past and present civilizations, their failures and successes, their forms of governments would be or could be juxtaposed and weighed against each other. The vast superiority of Our Constitution is not even debatable in world history and is in fact I would suggest self-evident to all that apply their reason, but therein lies the rub. It was a given during the time of our forefathers that applied reason would win the argument and that the citizenry out of self-interest would deem it necessary to educate themselves in a form of government that was to be run by themselves. Out of all the considerations, safeguards, checks and balances, they sought to circumvent or eliminate in the wording of the Constitution the one blind spot now a glaring omission was not to mandate it’s reading by the citizenry. The implied self-interest of a government by the people for the people for our forefathers it went without saying that all citizens would know and read the Constitution and thus understand our foundation and liberty. Again beyond their comprehension would be a day that “self interest” for a majority of citizens regarding their government could be assessed as what they can “Get from” it not “Vest To” it, yet here we are. While “Foreign Force and influence” were on Jays mind clearly foreseen as a great potential threat not so was the idea of threat of domestic ignorance… that specter that topples all freedom and liberty, let us pray for the defeat of ignorance in our this Constitution Revolution:-) .

  25. I to am amazed at the foresight of the Founding Fathers. I’m as amazed at the ignorance or disregard from our current leaders to bring history forward as guidance on what NOT to do to overcome troubles today.

    Fed Paper #3 – As I read it, I couldn’t focus on the paper itself…all I could focus on is the relevance to Arizona vs. the Federal Government. Jay states that a national government is more likely derterrent for warding off war than astate…and I agree. But since the Federal Government has been unable the state has to step in.

  26. Ron Meier says:

    @ Janine, the Arizona situation seems to bring rebirth to the Confederation instead of the Union. Only 4 states share the Mexico border and our Representatives and Senators spend their days about 2,000 miles away in Washinton, DC, far from the points of conflict. Because they are so far away, and the 46 states they represent don’t have the samedirect problems with illegal immigration, they seem to be acting as if they lived in a Confederation, where they don’t care enough to act on the problem because the problem is not in their own districts.
    In many instances such as this, our elected representatives are acting more like delegates than representatives of a Republic. As delegates of a state, they vote only for those things that are problems for their own states; as representatives, they should be voting for those things that are in the national best interest, even if not in the best interest of their home state.

  27. Greg Zorbach says:

    @John Harris… I agree in your entire post, but would amplify your statement: “And the best way at the time was through diplomacy and not war.” It was probably true that in 1787 the new country was weak enough to the point that diplomacy was the only option in most cases of foreign provocation or dispute (therefore, the recurring argument for adoption of the proposed Constitution to replace the AOC in order to give the country a stronger national government). Several times in our history when we were not strong enough militarily, our diplomatic efforts proved to be impotent. The best explanation of national power or effectiveness in foreign affairs I have heard was presented at the Naval War College by a visiting lecturer from the government in the late 80’s: any nation’s power is like a stool with four legs. The legs are military power, economic power, national resolve or character, and the last one that depends the most on the other three – diplomatic skill. However, if the stool’s legs are not in relative balance, national effectiveness in foreign affairs (the most critical being the avoidance of war without resorting to the ‘tribute’ that led Jefferson to take on the Barbary pirates) is diminished. I believe that Chief Justice Jay was make this same point in argument for adoption in Federalist 3.

  28. Beverly Benson says:

    If our country became unified would it mean that we would have more people to select from in terms of making up the military force? And I guess I haven’t read the Articles of Confederation, but I noted that the Constitution allows the federal government of the U.S. to have a draft. Would unity mean that the founders wanted to be able to draft people from every single colony?

  29. Cindy Thompson says:

    Our country has truly been blessed to have men such as John Jay to take such an interest in the nation and to accept the risks that they did. It is really too bad that historians have tried to rewrite their profiles to turn them into lesser men. I am honored to read their essays and thankful for the Constitution we have. I’ll do my part to spread the word about it.

  30. Tricia says:

    It is amazing how persuasive the 3rd Federalist Paper is. I like how Publius used moderate language throughout the essay in order to gradually convince the reader of his cause. By the end, I found myself agreeing with him in the idea that “strength is peace.” I envy the eloquence of this essay!

  31. Seij De Leon says:

    The Federalist Papers no3 makes a point to explain how things will go well, concerning the people running the country. It states that the best men will serve the country, and to defend that explains that “for, although town or country, or other contracted influence, may place men in State assemblies, or senates, or courts of justice, or executive departments, yet more general and extensive reputation for talents and other qualifications will be necessary to recommend men to offices under the national government,–especially as it will have the widest field for choice, and never experience that want of proper persons which is not uncommon in some of the States.” Like what Jesse Stewart was saying, this is nowadays an overall hollow statement, and I’m sure that John Jay could not of envisioned how things really work today. Just because there is a large selection of people to choose from does not mean the best men will be chosen, an unavoidable flaw in any society where the people can make decisions such as these.

  32. Nancy Martin says:

    It interests me that three men could agree so strongly on the benefits of the new constitution that they could all use the same pen name Publius. I’m curious about what this means in terms of the trust they had for one another?

  33. Shannon Castleman says:

    Nancy, thoughtful question. These men trusted each other because they were Statesmen, not “politicians”. They loved their new country more than they loved to disagree with one another.

    They don’t make people like that anymore, at least not many. Could you imagine Pelosi, Paul Ryan, Harry Reid, and a Libertarian doing this together?

    I can’t.

  34. Peter says:

    Dumas captured the spirit of Federalist #3 when he wrote “All for one – and one for all.”

  35. Susan Craig says:

    What has become inverted is the foundation of peace. What the founders here argued is that diplomacy functions best when supported by three legs. These legs are; one a strong defensive capability (making it hazardous to attack), two a strong economy (ability to sustain) and three a collective understanding of principle and the will to back them up. Currently termites are attacking all three legs and still insisting that diplomacy unsupported will work.

  36. Hello all. Peace through strength,,I think the founders knew this and up until these past few years that axiom has held us in a secure grip in a very dangerous world.Reality exists and to pretend that we can behave out side it because it suits our wishes is a dangerous and irresponsible failure of understanding.I expect our Government to be adults,people who will hold themselves errect and bear the burdens of truth, and this does not mean we are imperialist ,Facist,etc.These over the top charges make me wonder about the depth of understanding of those using these distructive words.It stikes me as as very young and immature teen who has heard a few new words and can’t wait to use them,and have no idea how foolish they appear .I am imbarrased for them most of the time.
    Strong mature silence is quiet and deliberate in its action and words. Unity is in our best interest and I pray for a leap of comprehension on the part of America.

  37. Andy Sparks says:

    Shannon, you may find it interesting to know that two of the people who wrote the Federalist Papers (Alexander Hamilton and James Madison) went on to become bitter enemies. Madison switched sides so to speak, and joined Jefferson’s Republicans and denounced and worked against Hamilton’s Federalists, and vice versa. Once the Constitution was ratified, they did not work together as statesmen, but became politicians.

  38. Patrina L. says:

    RE the statement by Seij De Leon: “Just because there is a large selection of people to choose from does not mean the best men will be chosen, an unavoidable flaw in any society where the people can make decisions such as these.”

    It is true that people can, have done, and will make mistakes in selecting their leaders via their voters’ voice; however, I fear how much WORSE it would be if the PEOPLE did NOT have the power to make these monumental choices…

    Would anyone want the current leaders (or any leaders, for that matter) making these important choices of leadership for us? How much worse would that be? We, as a people, have the CHOICE to oust, what we perceive to be as, any bad lot of leaders at the voter’s box. This is what gives US the power. We must jealously guard it through our own education regarding our national history and our current events. This is what Benjamin Franklin meant when asked by a woman what kind of government the Founding Fathers had given the Country. He responded, “A Republic- if you can keep it.” His answer implies that we bear an ACTIVE responsibility toward maintaining our power as a people. Not only must we educate ourselves, but we must also actively exercise our freedoms through voting. We have been given a rich wealth of freedom and power through our national inheritance, but we cannot become passive because our inheritance will not maintain itself. We, as the ones who have inherited this great gift, have an ETERNAL RESPONSIBILITY toward ACTIVELY preserving it by being knowledgeable, diligent, and vigilant regarding its upkeep, or else it will be stolen from us while we slumber. We the People must insist upon learning about our inheritance of power and freedom, and preserving it through proper tending, or else it will surely wilt and die, yielding us nothing but disappointment and grief, making us very poor inheritors, indeed.

    So, the truth of the matter is that if the PEOPLE did not make the choices of leadership, the outcomes would be far worse. I believe that is why the Founding Fathers put the “US” in the USA.

  39. CJ says:

    Amazing how forthright the Founders were and how devastated they’d be today.
    There are certainly a lot of words and as my High School teacher said of my essays….”flowery pansies”….The speaking back then certainly were colorful.

    In my mind I summed it up to: Together we are strong, separate open to prey..

    In this section of Federalist 2 it seems to be their lack of foresight and elitism that America would be a people of thesame kind and equal in religion manners and customs…CJ

    Federalist 2……
    ..”With equal pleasure I have as often taken notice that Providence
    has been pleased to give this one connected country to one united
    people–a people descended from the same ancestors, speaking the same
    language, professing the same religion, attached to the same
    principles of government, very similar in their manners and customs,
    and…”

    These paragraphs in 4 struck out at me: CJ

    Federalist 4
    …”But the safety of the people of America against dangers from
    FOREIGN force depends not only on their forbearing to give JUST
    causes of war to other nations, but also on their placing and
    continuing themselves in such a situation as not to INVITE hostility
    or insult; for it need not be observed that there are PRETENDED as
    well as just causes of war.
    >>>>>>>>>>>>.
    hostility and insult have been invited. CJ
    >>>>>>>>>>>>

    It is too true, however disgraceful it may be to human nature,
    that nations in general will make war whenever they have a prospect
    of getting anything by it; nay, absolute monarchs will often make
    war when their nations are to get nothing by it, but for the
    purposes and objects merely personal, such as thirst for military
    glory, revenge for personal affronts, ambition, or private compacts
    to aggrandize or support their particular families or partisans.
    These and a variety of other motives, which affect only the mind of
    the sovereign, often lead him to engage in wars not sanctified by
    justice or the voice and interests of his people. But, independent
    of these inducements to war, which are more prevalent in absolute
    monarchies, but which well deserve our attention, there are others
    which affect nations as often as kings; and some of them will on
    examination be found to grow out of our relative situation and
    circumstances….”
    >>>>>>>>
    …. “Have our wars been sanctified by justice……”CJ

    …………
    This is sad for our government has put us in this position…I fear today with this administration even more so.
    America was so very young…… CJ


 

by W.B. Allen, emeritus dean and professor of Political Philosophy at Michigan State University

Saturday, May 1st, 2010

Having established the “utility” of the Union for avoiding foreign wars, Publius proceeds to reinforce the argument in essay number four. In the second paragraph he acknowledged the claim that the United States should avoid inviting hostilities, insults, from other nations. But the third paragraph shows how difficult that might be.  It is too true, however disgraceful it may be to human nature, that nations in general will make war whenever they have a prospect of getting anything by it, nay that absolute monarchs will often make war when their nations are to get nothing by it but for purposes and objects merely personal… These and a variety of motives, which affect only the mind of the Sovereign often lead him to engage in wars not sanctified by justice, or the voice and interests of his people. What this suggests is that many of the wars that arise will do so because people having the power to make war or to a void war yield to temptations that we find perfectly ordinary in human nature. People see opportunities and try to take advantage of them.

We should question the causes of war and the premise that if we knew the causes it would be easier to avoid war. In this point, though, it seems that the very resource we relied upon in the beginning == namely, the people with the power to decide — is also one of the chief causes of war. People in office who yield to temptation happen to be one of the chief causes of war, and Publius reminds us of this.

This is not an aberration. All we need do is to expect leaders to be human to expect these causes to operate. That is not the exclusive cause of war. Publius is clear about this, but it is the most difficult to deal with. And in that respect we ask once again is the Union better at dealing with the causes of war? will the Union make it less likely that notional office holders yield to personal illusions that carry their nation into war? The significance of this is that with the national union our personal illusions come packed wait a far greater punch In spite of that, Publius argues that, yes, in spite of greater fire power, the greater temptations, the greater illusions, the answer is yes. How?

Publius does not claim to alter human nature one bit. He suggests, though, that we need to pay as close attention to the effect of the new government upon the governed as upon those who govern. There is a deterrence theory in essay four that suggests the response: “Wisely, therefore, do they consider union and a good national government as necessary to put and them in in such a situation as, instead of inviting war, will tend to repress and discourage it.” Then he repeats the argument from essay three, namely, that a Union will foster the involvement of the “experience of the ablest men” in the entire nation in guiding the nation. But he adds a caveat that was not in essay number three, namely, that “it can harmonize, assimilate, and protect the several parts and members, and extend the benefit of its foresight and precautions to each.” That is a new argument, an argument that a government for the union can in fact create homogeneity where diversity existed previously: e pluribus unum.

Professor William B. Allen is emeritus dean and professor of Political Philosophy at Michigan State University.

28 Responses to “May 32010 – Federalist No4 – The Same Subject ContinuedConcerning Dangers from Foreign Forceand Influence, for the Independent Journal (Jay) – Guest BloggerWilliam BAllenemeritus dean and professor ofPolitical Philosophy at Michigan State University

  1. Ron Meier says:

    Those bumper stickers “War is Never the Answer,” and similar slogans always bother me because they assume that there are no humans who would ever choose war over peace. History proves that this simply is not true. I don’t know where I read it, but I remember reading sometime in the past several years that there have been at least two wars going on somewhere in the world every year of recorded history.
    The idealistic left assumes that peace is normal and conflict is abnormal; in my analysis of history, conflict is normal and peace is an anomaly. We don’t even have to look at the history of nations; we can look at families, homeowners associations, clubs, and the like, and what we find is that conflict is normal and peace is not. When good nations have unilaterally disarmed in the name of peace, we normally find that war comes shortly thereafter. Therefore, we should always be prepared with a strong defense.

  2. Shannon Castleman says:

    My question to you all: After reading #2-#4, Do you believe our Founders-if the came here in a time machine-would support or not support our being in the Middle East right now?

    Most of me says no, but a small part of me says maybe. Any thoughts??

  3. Susan Craig says:

    I find it very telling that the first four papers in defense of the new Constitution dealt solely with mutual defense and security! It is almost as if they wished the primary and dare I say almost the only purpose of the Federal government was dealing with external influences leaving the internal to the individuals and their respective States?

  4. Jeff James says:

    Isn’t it interesting that one of the main points in Federalist #4 is the balance of trade and the U.S. ability to supply ourselves with commodities once supplied by India and China. Times sure hve changed!

  5. Roger Jett says:

    In answer to Shannon, who posed the question ….” would our founders support or not support our being in the Middle East right now? I think that at least some insight can be obtained by studying our involvement in the “First Barbary War 1801-1805″ and the “Second Barbary War 1815″. Based upon the bold actions taken by the young United States with it’s fledgling military at that time, I believe it is probable that the Founders would be in support of any action that has taken place in recent decades to protect American Citizens and American commercial interest. However, I suspect they would not have engaged in the level of police action and nation building that our modern time leaders have burdened us with.

  6. Carolyn Attaway says:

    I am going to miss John Jay’s writings in these Papers. I find his Papers very easy to read and very thought provoking.

    Shannon, in paragraph 3, our conflicts with Iran and Iraq immediately jumped into my mind. Many speculate why we entered this war; national security, oil, democracy, many more views, and a combination of many. But with both Iraq and Iran, their leaders have expressed an ambition for themselves and their country that has enveloped the rest of the world. Unfortunately, a down side of the founder’s logic of being a strong union is that we have became too strong and we are depended upon by the rest of the world to intervene in global crisis. I do not believe our founders would have wanted this for their beloved Union, but could they themselves have prevented it given the cost of noinvolvement. As Edmund Burke, a supporter of the American Revolution said “All that is necessary for the triumph of evil is that good men do nothing”. If the Middle East conflicts happened during our founder’s time, we probably would not have become involved, at least not to the degree we are now. But given the domino effect of global fallouts today, I believe they would feel they had no choice but to intervene.

    Why? In paragraphs 7 through 10, John Jay writes of America’s involvement with China and India, and how that trade involves other countries. He explains how this trade can irritate other countries with our success in commerce and in our navigation of the oceans that give America a greater share in the territories that they at one time monopolized. So even at this time, America was heavily involved in foreign affairs and commerce; the founder’s wanted to protect the Union’s stakes of interest in other countries and this was one of their reasons for the States to be unified.

    The last paragraph could be taken from any Tea Party and Patriot Activist Guide Book today. Of the many Rallies, Town Halls, and Prosperity meetings I have attended, this is the rallying call: “If they see that our national government is efficient and well administered, our trade prudently regulated, our militia properly organized and disciplined, our resources and finances discreetly managed, our credit re-established, our people free, contented, and united, they will be much more disposed to cultivate our friendship than provoke our resentment. If, on the other hand, they find us either destitute of an effectual government, what a poor, pitiful figure will America make in their eyes! How liable would she become not only to their contempt but to their outrage, and how soon would dear-bought experience proclaim that when a people or family so divide, it never fails to be against themselves.”

    The Conservative Movement feels it is way past time to return America to her previous Glory. Was she perfect? No. And a lot of things changed to make her better and her people freer. But the change we did not need is our overbearing and non-transparent government, an overregulated and crippling trade policy, liberal agendas to dictate our military, our resources and finances in ruins, our credit in the toilet, our citizens losing freedoms to the NannyState and becoming quickly discontented and divided.

    Was America perfect? No. But; she was the closest thing to liberty and freedom the civilized world had ever known.

    I believe most of us on this site probably believe this, otherwise why bother being here.

  7. Donna Hardeman says:

    @Bob Greenslade-before I get immersed in the next Federalist paper, I wanted to take a moment to thank you sincerely for your reply to my question about the Bill of Rights. It was an excellent read – one of the main reasons I’m on this site because of bloggers like you!

  8. Neal C White says:

    Shannon asks the question whether our Founders were to visit us would they or would they not support our being in the Middle East now? It is a good question and one we all should examine. I think the answer to this question depends on the faith we have in who our elected officials are and whether we are convinced of their resolve and purpose. Most of us do not have the time to research and totally understand such matters.

    Unfortunately, at present it is doubtful that our leadership are capable of steering our country in the right direction. I guess in the end we will have to depend on God having control and guiding our leaders to make the correct decisions.

  9. Marc W. Stauffer says:

    Remember the school yard bully? How that bully singled out and picked on the weak? There are always going to be the “school yard bullies” out there in the big bad world. Remember what happened when “the picked upon” banded together? You found out that the “school yard bully” wasn’t so big and bad after all and they turned to easier prey.
    I think Publius makes an excellent point with his fleets of Britain and trade market competition. The corner on the trade market was held by Britain and the inference that human nature would not stand idly by and allow that hold to simply be taken from them by a small, relatively defenseless state or confederation merits a good understanding. When you are banded together with a common cause strength is realized and with that strength comes deterrence…something every “school yard bully” thinks twice about.

  10. Bache says:

    In the First Barbary Wars,family letters written by Daniel T. Patterson from the Tripoli Prison, Nov. 23, 1803 are fascinating. He was a midshipman, from the shipwrecked frigate Philadelphia and now a prisoner at the age of 17. The prisoners were kept in “a stone bulding, the walls very thick, it is about 20 ft. wide, 25 ft. high, and about 80 ft long, with arches overhead, the walls could scarely be distinquished from cob-webs, and dirt, it had formerly been used to dry hides in, and had never been cleaned out, the strings by which they suspended them are still hanging there. The light and air is admitted through a space in the top, about 4 ft.square, grated over with Iron Bars, by 2 small holes in the side wall near the top, which are almost choked up with dirt and a small grated window near the door, there was the ground for seats and an old sail spread for beds, this place was to contain three hundred persons, the doors shut every evening at sunset and opened at daylight when they want any fot the men to work, they arrange them all in a line and take those they like…but when they misbehaved they are bastionandoed, two small loaves of bread made of barley bran and as much water they can drink is all they live upon.” He latter writes that the Turks had 50-60 million dollars in their treasury, in unchained captivity 1,500 Christians…a demand of $3,000 per sailor for ransom is made to President Thomas Jefferson.

    I find these letters from a young man held in captivity along with Captain Bainbridge and fellow officers enlightening. His words paint a picture of the demands of the First War of Terror on our newly founded republic and navy.

  11. Elizabeth says:

    After reading the fourth paper, the last paragraph jumped out at me. It seemed as though it was written for today and how the world views us. Are we sure it was written in 1787? Talking about how foreign nations, “if they see that our national government is efficient and well administered…they will be more disopsed to cultivate our friendship than provoke our resentment…How much more true does that ring today?

  12. Susan Craig says:

    I think this is a function of our founding fathers knowledge and understanding of human nature and realistic approaches to dealing with it. Whereas today’s ‘leaders’ wish try and impose their picture of an ideal. They ignore at their peril the human nature that resents and resists imposition of someone else’s picture of how we should be vice how we truly are; flawed and sinful.

  13. Carolyn Merritt says:

    I too, was taken with the past paragraph of #4 and how it rings true today. We must continue to show our strength and unity, if we do not and we continue on the path our current government is trying to take our Nation, we are going to keep losing the respect we once had from other Nations.

    The last sentence of John Jay’s argument was echoed almost 100 years later by Abraham Lincoln: “A house divided against itself cannot stand.” (1858) This holds true today as well.

  14. Ron Parson says:

    Three short points:
    – first: We subsidize consumption and tax investment, which is “eating the seed corn.” It leads to poverty. Thus, a wholehearted second to Carolyn Attaway’s point above, in part quoting “our resources and finances discreetly managed, our credit re-established.” We must do this, and quickly.
    – second: re Iraq and Afghanistan: both lacked a “strategy”; both were a full level below that, at “operations.” To distinguish strategy from operations, ask . . . “and then what?” as in, We capture Baghdad . . . and then what? We flatten the Taliban (temporarily) . . . and then what? Both operations implied nation-building, which was scarcely anyone was thinking about; and I believe it impossible by outsiders.
    – third: In Washington, a “strategic plan” is neither; Washington abounds in incoherent scraps of strategy. A coherent strategy has 7 elements: context, assumptions, ends/objectives, ways/concepts, means/resources, The Plan, review-adapt loop. If we’d applied that template to Iraq & Afgh before moving in, likely we wouldn’t have done so. The best monograph I know of on this is at http://www.strategicstudiesinstitute.army.mil/pubs/display.cfm?pubID=641 by a Dr. Harry Yarger.

  15. Will says:

    I strongly suspect that the standing and respect we once had in the world has been declining for some time, at least since the close of the Marshall Plan (itself a big social spending program). It’s being going on long before the current administration.

  16. Susan Craig says:

    Ron your second point is a function tieing our hands via the UN and limiting conflicts to police actions. War is not a sporting event in which ties are a good resolution to the game. War is a Darwinian evolution of the survival of the fittest.
    Your third point is one of the things the world holds against us – a lack of continuity/consistency between administrations. Case in point the missile shield promised to eastern Europe in the Bush administration and reneged upon by the Obama.

  17. Carolyn Attaway says:

    Susan, you have apoint about the lack of continuity between administrations, but I do not believe our past presidents strayed so far from each other as our current President has. Whether Reagan, either Bush, or Clinton; I do not believe our Allies ever considered that the USA would sever ties with them, or desert them. Now, I believe they are unsure of their relationship with us. You mention the world holds this inconsistency against us, but the sad part is many of our own citizens hate America as much as our enemies do. I came across a liberal the other day that hated America so much she said it was time we became a 3rd World country and suffer the abuses we inflicted on other countries. Her history was so skewed, I could not make any headway with her.

    So picking up Ron’s point of a strategic plan, I agree that we shouldn’t enter a war with just the first line of attack planned out, and then when that is over, you say “Now what?” I also realize that the world in constantly changing, and priorities are constantly changing, so National Security, our first and foremost proirity, needs to be constantly one step ahead of the world, and sometimes that is very hard to do. Ron, I look forward to checking out the link you provided. I joined Liz Cheney’s group “Keep America Safe”, and she and her contributors have indepth information on our current State of National Security. I haven’t been able to get to the site lately, but I recommend it.

  18. Hello all…….There are so many problems these days it is hard to keep up.The question was asked about our waring in the Middle East… great question and a very tall one.I suppose to bring the war to them could be argued for,WE were attacked by an idology not a country,this is very unconventional and a bit elusive by our past experiences.Our tactics need to be contemporary ….(going back, when the English attacked us during the revolution they followed strict and cumbersome methods of war,marching in bright red coats, and were quiet horrified that the militias did not line up and march in neat lines as they attacked, they instead used slight of view, snipers, etc.War had evolved and the Brits fought (may I dare say ,in a bit of an old fashon way) .Are we in a similiar delema ,fighting terrorist who fade from full annoument of their presence sneaking up using our very freedoms against us.Perhaps we need to reconsider some of our tactics.One way I think this is being done are the drone attacks.I know there are those who have objection to their use , but I like using stealt as often as possible .
    The mention of BIG government was also brought up. The thought that comes to mind over and over again when I see an attempt to control salt use,sweets , meat. fats and the such is the Temperence movement, and Prohibition. It was so against the Nature of humans and merely a product of the imaginations of the movers of Prohibition that we went right on doing what we knew was our own business.Crime rose and the repeal followed 13 years later. Of course this is a problems for sure but the most important problems we are facing is the Admin, taking control of Health Care, Banks, Financial markets, Car industry,errosion of Property ownership,wiping out contracts and so on and so on.We have much to right and thank God for our Constitution and the will of the people coming to life. This effort that has been offered to us by the contributers of the Constituting America site is a thrill.

  19. WeThePeople says:

    I really like the attitude this takes toward war: that it’s not something we ever want to invite upon ourselves. Its nice to know that the creators and supporters of our constitution strongly believed that peaceful solutions could be reached. It’s obvious that the constitution did need to give consideration to our national defense, but still. Now, if only our government had this same attitude today…

  20. Charles Babb says:

    This has been a wonderful opportunity to better understand what my ancestors faced, when they took their “Oath of Allegiance to North Carolina” at a Safety Committee meeting in Bute County (later to become Warren and Franklin Counties) in 1775.

    My question is; Where have all the Statesmen gone?

    They seem to have been replaced by patisan political thugs (result of career politicans?) that have usurped authority never granted them in the Constitution and have intentionally allowed our Nation to be invaded by a foreign forcewhich they hope will allow them to rip away the very last vestiges of freedom our Founding Fathers had intrusted to us.

    When America wakes up and realises what her apathy has brought us, I pray it is not too late for the People to regain control.

    Your posts give me hope that the United States can regain her way.

  21. Susan Craig says:

    Having spent sometime overseas (government sponsored tours and college) and listening to my hosts, it was a generic theme even back in the 1970′s. At that time it was Viet Nam Kennedy had committed to them and Nixon backed out under domestic political pressure.

  22. Tricia says:

    After reading the fourth Federalist Paper, I’m confused. John Jay sought to show how having a large, unified government would help protect the different states. He uses examples of how monarchies have started wars over personal matters and how three or four little governments aren’t as strong as one big one.

    But what’s to stop the leader of the US government from declaring war for personal reasons? What would keep the president in check? I don’t know if I missed that point or if it’s going to be further developed later…

  23. wow the founding fathers were right in so many aspects about war, trade, and just life in general. This country now feeks that we need to be in everyones affairs where as many of the founding fathers felt we needed to stay out of europes affairs. I wish the government was like this today, and that we needed to stay united unlike the polotics of today

  24. Andy Sparks says:

    To understand fully Jay’s essays regarding foreign relations, it is important to look to the near future of his time. The new republic’s life blood was trade with Europe. While America was rich in staples such as tobacco, timber, indigo, and rice; our manufacturing was relatively non-existant. Basically, we traded our raw materials for manufactured goods. The Quasi-War with France and the War of 1812 with Britain grew out of the disruption of trade with those respective countries. When both countries began boarding, impounding, and confiscating our merchant ships, it became a potential cause for war. Adams was able to avoid a conflict in the late 1790′s through shrewd diplomacy; Jefferson also avoided conflict by implementing a disasterous embargo policy that plunged the new nation into an economic crisis; Madison was not able to avoid war as the war hawks like Henry Clay and John Calhoun demanded the U.S. go to war with Britain in 1812. And although the U.S. claimed impressment and trade violations as the ultimate reason for war; imperial designs on Canada were as much a factor as those sited. So, despite (or because of) Jay’s warnings in Federalist #4, the nation not only could not avoid war, but in the case of 1812, actively sought it out.

  25. Peter says:

    There are some great comments being made tonight. It is interesting, but in a way obvious (at least to me) that the first few Federalist papers dealt with national security. Not only is the primary purpose of the state to organize for war – something the indiviudal is least prepared to do of all government functions – it is in my judgment the best argument for why the various colonies/states needed to come together into a centralized arrangement – or as one of the founders put it, for their mutual protection and, and this is important, defense.

  26. Seij De Leon says:

    In the last section of the article, Publius makes a remark saying that basically, if we as a nation are strong and powerful, other nations will want to befriend us and not provoke us. At the time, this may have been a more beneficial concept. But now as we are a large world power it has not only earned better feelings from other countries, but their dependency on dealing with larger affairs that our founding fathers may not of foreseen, and in turn made things what some might consider worse for us. I think it is interesting how goals were met, but even with the very thorough analysis that is offered by the federalist papers not everything can be predicted such as foreign dependency.

  27. Sandra Rodas says:

    I am very much enjoying this reading project and the blog. I read every comment each day. I have been meaning to read The Federalist Papers from “cover to cover” for some time now, and it is nice to have someone inspire me to get busy and do it. It is especially nice to get so many insights from others as I read. Thank you Cathy and Janine for sponsoring this.

    In #4 the comment, “when a people or family so divide, it never fails to be against themselves,” keeps coming back to my mind.
    There have always been different opinions and different sides of issues — some of them very nation-changing and serious — but I feel a lack of unity in our country at this time that alarms me. It somehow feels different and more hostile.
    We are dividing against ourselves. We need to realize that we can disagree without the hostility. The “shape” of our nation will be irregular and asymmetrical as we all push and pull in the different directions that our hard-won freedoms allow. That is OK—it is even good. The harmony improves the melody. However, we need to remember that our center should be one.

  28. Greg Zorbach says:

    re Tricia and her question: “But what’s to stop the leader of the US government from declaring war for personal reasons? What would keep the president in check?” Only the congress candeclare war. it was true with FDR in 1941 and with W in 2002. Yjey both had to make their points with the people and their representatives in congress.

 

 

Tuesday, May 4th, 2010

John Jay continues explaining the need for a United States of America as opposed to either an association of 13 separate and individual states or a collection of three or four nation states.  Jay explains his view that there were significant arguments in favor of a union, specifically by arguing that the recent experience with England and Scotland offer good examples of the benefits.

“QUEEN ANNE, in her letter of the 1st July, 1706, to the Scotch Parliament, makes some observations on the importance of the Union then forming between England and Scotland, which merit our attention.”

Taking up an example that may have been familiar in the eyes of his readers was a useful means for Jay to use to help voters understand the issues that were at stake.  The situation facing Scotland and England provided an excellent rationale for the states to reconsider the developing position among some that a confederation or a breakup into separate states would be useful in the long term.

Jay concludes: “We may profit by their experience without paying the price which it cost them. Although it seems obvious to common sense that the people of such an island should be but one nation, yet we find that they were for ages divided into three, and that those three were almost constantly embroiled in quarrels and wars with one another. Notwithstanding their true interest with respect to the continental nations was really the same, yet by the arts and policy and practices of those nations, their mutual jealousies were perpetually kept inflamed, and for a long series of years they were far more inconvenient and troublesome than they were useful and assisting to each other.”

Moreover, the problem was not simply that 13 separate nations were never going to cooperate.  Jay argued that even if the States were to divide themselves into as many as three separate nations, they would still face problems that would ultimately jeopardize the well-being of the entire people. ”Should the people of America divide themselves into three or four nations, would not the same thing happen? Would not similar jealousies arise, and be in like manner cherished? Instead of their being “joined in affection” and free from all apprehension of different interests,” envy and jealousy would soon extinguish confidence and affection, and the partial interests of each confederacy, instead of the general interests of all America, would be the only objects of their policy and pursuits. Hence, like most other bordering nations, they would always be either involved in disputes and war, or live in the constant apprehension of them.”

In fact, it was Jay’s considered view that by their very nature there would be differences between the various nations now comprising the original 13 states; and that this would lead to disputes.  Perhaps you could imagine one nation having more commerce, another more population, still yet another possessing larger navy.  Whatever the differences might be – they could not be avoided because the nature of things would be that different influences would occur in each of the separate states — they ultimately would lead to conflicts or fear of conflict.  If you increased the number of nation states from three to 10, you likely would only increase the risks of conflict threefold or more because success or failure by one nation would cause her sister nation to take notice and feel some obligation to adjust in response.

“Whenever, and from whatever causes, it might happen, and happen it would, that any one of these nations or confederacies should rise on the scale of political importance much above the degree of her neighbors, that moment would those neighbors behold her with envy and with fear. Both those passions would lead them to countenance, if not to promote, whatever might promise to diminish her importance; and would also restrain them from measures calculated to advance or even to secure her prosperity. Much time would not be necessary to enable her to discern these unfriendly dispositions. She would soon begin, not only to lose confidence in her neighbors, but also to feel a disposition equally unfavorable to them.”

Jay recognizes that having one nation would eliminate all of those peculiar instances at least in terms of their perception to other countries and greatly attenuate the potential for envy or fear to develop internally.  Because as Jay recognized, nation states naturally are attentive to the concerns and changes that occur in other countries and tend to evaluate them in terms of  whether these changes either advance or retard their own perceived interests it is useful to minimize them wherever possible.

“Distrust naturally creates distrust, and by nothing is good-will and kind conduct more speedily changed than by invidious jealousies and uncandid imputations, whether expressed or implied.”  Jay concludes by pointing out that the very distance between the states and Western Europe made it more likely that any conflicts that would cause government leaders to take sides would occur here in the Americas and not with “distant nations.”

The very large swath of land and significant population of America potentially were the greatest strength of the nation in unity but could be its greatest weakness in disunity.

Horace Cooper is a Legal Commentator and Director of the Institute for Liberty’s Center for Law and Regulation

23 Responses to “May 42010 – Federalist No5 Concerning Dangers From Foreign Force and Influence (continuedGuestBloggerHorace CooperLegal Commentator and Director of the Institute for Liberty’s Center for Law and Regulation

  1. Brad Tepper says:

    This experience has been fantastic! Thank you Janine and Cathy.

    Now I am stumped. In 1786 John Jay argues for and attempts to secure specific and limited commerce for the Northeastern states with Spain. This was not his assignment either. I believe he was to negotiate rights for the entire confederation of 13 states with Spain. His actions, the Jay-Gardoqui Treaty, thankfully was never ratified.

    One year later, he authors Federalist #5. He then argues AGAINST such a negotiation and specific treaty for a factional section of the states.

    Can someone explain how this 180 seemed to occur? Who/What were the influences?

  2. Susan H. says:

    Good morning everyone,

    I had a few thoughts as I read #5. Jay writes “The history of Great Britain is the one which we are in general the best acquainted, and it gives us many useful lessons. We may profit by their experience without paying the price which it cost them.” I guess this just drove home the point that history does indeed repeat itself. It behooves us all to be students of history. I recently read a historical novel, The Constant Princess, by Philipia Gregoria. In that novel one of the constant worries of the King was invasion from the Scots in the north.

    The other thought I had was in regards to the AZ contoversy. It feels like that state is being forced into a us vs. them position. Instead of the federal government looking out for the Union, they are forcing states to protect their own interests. Now you have other states looking to boycott and withdraw invetments, etc. Sounds to me just like what John Jay was warning against.

    I continue to be impressed by the founding fathers.

  3. Chuck Plano, Tx says:

    Susan you are exaactly right the Federal Government has failed in it’s first responsibility and that is to protect our borders. This situation has existed for years it is not new. The border states have had to contend with the failure of the Federal Government and the other states have sat by and said it is not my problem. If we are to mantain this union we had better start thinking about what is best for all the states and not just our own. Texas has been at the for front of the EPA because of some of our emmisions but it is because we refine the majority of the oil and gas in this country if we did not the Northeast and Midwest would freeze in the winter and not have transportation. Remember the righters of the Federalist Papers were arguing for this Union with the Enumerated Powers in mind not this Government we see today.

  4. Carolyn Attaway says:

    Horace Cooper’s last line in his entry summed up Paper #5 for me; “The very large swath of land and significant population of America potentially were the greatest strength of the nation in unity but could be its greatest weakness in disunity.”

    I find it curious that I read this article on the day after I watched the 2nd part of the series “America – The Story of Us”. In the Series, the narrator explained how pioneers continued to expand the States through events such as the Lewis and Clark expedition, the Alamo, the Gold Rush and the Westward Movement in order to create a better life for themselves. The point that was constantly stressed that what made America so different from all other countries was the ability for their people to be free and that they could carve any life they wanted for themselves.

    The Series went on to explain how Americans in the West wanted to be connected with the East, so with the existance of steamboats and the building of the Erie Canal, the expansion of commerce crossed the continent and had a major impact of the American way of life.

    The great need for commerce and the economic differences between the Northern and Southern States led to a great discord within the Union. This difference eventually led to the Civil War.

    I think of the Civil War in this Paper, because I wonder if the Founders had not pushed so hard to create a Union, if the Civil War would have ended differently. Would the Southern States have remained intact, or consumed into the Northern States after their defeat? Would the Northern States have had the right to demand the abolishment and expansion of slavery?

    I find that the Founders relentless drive to form a Union may not have prevented disunity between the States, but the formation of the Union gave us an ending which could have otherwise been disastrous to America as a whole.

    Like Great Britain, the individual States could have spent years upon years of internal fighting; disrupting any chance of expanding their trade and increasing their strength to be a profitable nation. Instead the Civil War could have turned into multiple civil wars, weakening the states resources to the point of becoming a target for foreign countries to attack. Would we even be a Superpower today?

    Even today with the problems we are facing, there are faint whispers of state secession in the wind. I believe the Union should always remain intact. However; the powers the federal government currentlly holds should be scaled back and limited, and the state’s powers should be restored to their full capacity. Also, if the federal government fails to do its job in protecting the states from invasion (i.e. Arizona), then the states should have the right to protect themselves without federal naysaying.

  5. Neal C White says:

    Excellent comments by all on Federalist No 5. I cannot help but think that we are today experiencing a continuation of the argument that prompted Jay to write this piece. It seems to me that there is an effort to divide our country. It is amazing the number of so called pundits have written articles criticizing Arizona for the realistic passage of legislation suggesting that they wished to see the law upheld in their state. None of those who are protesting had any suggesting how to deal with the very real problems of murder, drugs, destroying of personal and public property to say nothing of the heavy burden of economic support demanded by the Illegal Immigrants.

    If this attitude continues we will see division of our great country in different groups just as Jay is warning us about – and for many of the same reasons he mentioned. Why do we, the citizens, allow this to happen. The vast majority of us are in agreement with Arizona and believe the rest of the Union should support similar action. We are headed for a very bad ending if something is not done to change this attitude and direction that America is now following.

  6. Chuck Plano, Tx says:

    The whole problem we have today is the Federal Government with the aid of the Courts exceding the Enumerated Power it was granted under the constitution. If the government operated today as was intended under the original intent of the Constitution the Federal Government would not be involved in 90% of the issues they are involved in today. Just look @ the move today to revise the Clean Water Act to read “all” water instead of just the navigatable waters. With this change the Federal Government will have control of any water in the United States including Playa Lakes. Is this what the Founders intended.

  7. Susan H. says:

    No Chuck, I don’t believe this is what the Founders intended. We the People have the power to make a change at the ballot box. The critical question is will the “vast silent majority” get of “our collective duffs” and do something about it. I think websites such as this one and other venues promoting basic civics education may be the key.

  8. David Hathaway says:

    Today’s Federalist Paper references the earlier letter from Queen Anne. An editorial I read today referenced even earlier the Magna Carta. Clearly, our Founders were men of letters who understood the precedents of their age. I surely wish our leaders today were as well versed. I would be pleasurably shocked to learn that any of our Congress were reading along with us.

    I live in Texas. We are proud of our state, and our superior policy and good management. We are fiercely jealous of our state’s power and push back on the Federal Government’s imposition of policies and costs. In the context of today’s reading, if we were still a Confederacy, it is not hard to imagine that the current AZ brouhaha would lead us to side with her, against the neglectful central government. Heck, we do already!

    Likewise, can’t you imagine Michigan or other economically challenged states looking enviously at Texas? It would be a war waiting to happen.

    I found it interesting that Jay touted the strength of the Northern Hive against that of the southern states. Remember, he was writing to encourage New Yorkers to ratify the Constitution. Isn’t saying “we are more powerful than those lazy southerners” more of an argument against the Constitution? If this were today, and the writer was a Texan, I bet there would be many voices that said, “what do we need New York for?”

  9. Andy Sparks says:

    Excellent comments and observations, especially Brad and Carolyn. I sometimes hear people say the nation would be better under the Articles of Confederation because the states were independently sovereign. However, they don’t seem to realize the internecine conflicts between borders and commerce that would arise if this were the case. Jay and the other Federalists saw first hand what path a loose confederation of nation states were headed. Eventually, even the United States under the Constitution could not hold the union together without a bloody war.

    Brad, I believe Jay thought that a 25 year moratorium on use of the Mississippi was reasonable at the time. The territories to the west of the Appalachians were still fairly sparse and perhaps he felt getting Spanish agreement in writing that the river would eventually revert to the U.S. was more important than instant gratification. Also, I don’t think he realized the deep resentment the southern states and western territories had for his negotitations until after the treaty was vilified and eventually not ratified. I think it speaks well to him that he realized the mistake that was almost made and changed his line of thinking regarding it.

  10. Melanie says:

    To Brad Tepper, I am equally confused about John Jay’s apparent 180 on the virtue of states’ sovereignty verses a strong federal government. I look forward to others’ comments on this.

  11. Ron Meier says:

    @ Carolyn. Re the Civil War. Would there even have been a Civil War if a Confederation had continued, with the slave states being soverign? Possibly not, but there might have been other wars between the various Confederacies. We just don’t know, because that’s not the path we chose.
    We can look at current day Europe for an example of what might have been. Effectively, the EU is a confederation. Look at the problems that are occuring right now with the Greece situation. We can see the very things the writers of the Federalist were warning us against coming to pass in the EU. The other members of the EU confederation are becoming self centered now that they may have to rescue member Greece. They are asking why should they have to pony up money to rescue their member which has not been fiscally responsible. It will be instructive to see how that one plays out over the next months and years.

  12. Melanie says:

    Today in The American Thinker is an article entitled “Declaration of Independence As Law”,
    written by Ronald R. Cherry. It begins “Our American Declaration of Independence is the supreme, unamendable lawof the United States. Declarational law preceded and trumps our supreme, amendable secular law, the Constitution. As stated in our Declaration, the purpose of secular law (Constitution) is to secure our sacred, unalienable, equal, individual rights to life, liberty, and the pursuit of happiness–i.e., private property honestly earned through creative labor : ‘That to secure these rights, Governments [constitutions] are instituted among Men…’ While our Constitution and Bill or Rights are the greatest secular laws ever written, it must be acknowledged that our secular Constitution has a sacred mandate–the Declaration of Independence.

    It’s well worth reading the entire article, the premise is sound.

  13. Carolyn Attaway says:

    @Ron, I think a civil war would have ensued eventually; just like today we do not like to see other people in other countries being mistreated or enslaved, the people of the North would have began to challenge the morality of slavery. It would still have been an issue.

    Greece is a scary situation because the unions in that country have cuddled the Greek citizens for so long. The citizens are rioting in the streets for cut backs such as getting paid for 12 months out of the year instead of 14. Can you imagine?

  14. john jay was a brilliant man who along with the other authors of the federalist papers helped to address issues that the american people felt needed to be addressed. the federalist papers however seem to address issues that hadnt even happened yet. . some of the federalist paers seem to forshadow the civil war that devistated this country. at this time the federal government was trying to force the country to become a union, and this along with issues such as slaverymay have caused the civil war in 1862

  15. Susan H. says:

    To Ron – that is an excellent point you bring up about the EU!

  16. Carolyn Merritt says:

    In my opinion Jay was prescient in using the example of the north being generally “the region of strength” and at some time in the future exert the power over the southern portions of the confederacies. They would not act as neighbors but as borderers, would be prey to discords, jealousies, etc. In short, we would be in exactly the situations which some nations want to see us – formidable only to each other. Was Jay talking about the future civil war?

    @Ron, not only are we seeing what Jay wrote about happening in Europe, we are seeing it happening here on our own shores today. As he states in Federalist 4 . Now we were a nation that could defend ourselves, and provide ourselves with goods and not only that could now export these same goods to other countries cheaper than they could produce them. What has happened to our commerce? It has gone overseas. We no longer manufacture and export goods that are cheaper than other countries can produce. We no longer provide ourself with goods that we produce.

  17. Tricia says:

    @ David. I agree. States wax and wane in power and if they were all independent of each other as under the Articles of Confederation, every state would have some resentment against the others for some past fight or jealousy.

    Under the Constitution, the states can get along (to an extent). By being united as one entity, the separate states can still have their differences, but also work together during times of hardship, such as the Great Depression.

  18. WeThePeople says:

    One of the extracts from the union in England states that a strong union will be able to resist any enemy. It also suggests that our union would be divided by the North and South from the very start. Hmm, it seems that the founding fathers hint about a civil war a lot…So, for the civil war, since part of the union became it’s own enemy, does that detract from our strength as a whole? I know it did at the time, but overall, was it for the best?
    This paper seems to focus on the fact that it would be a burden NOT to separate ourselves from Britain. Wonder how parliment reacted to these papers.

  19. Peter says:

    What is important to conisder is the context – remember the Federalist Papers were printed/published in New York and were, largely, about persuading New Yorkers to accept the idea of a new nation with a new system of government. Virginia was the largest colony while Pennsylvania was probably the strongest in economic terms. Without New York the country could of – and probably would have – split into a northern country and a southern country. What Jay is doing here in one of the last papers he wrote is to build the case for unity from Massachusetts to Georgia. And he does a brilliant job, in my opinion.

  20. A big thank you to Horace Cooper for serving as our Guest Blogger for Federalist No5. Excellent analysis fromHorace, and great discussion! Thank you to everyone for participating! I would like to share a few of the lines and thoughts from today’s post and blog comments that particulary resonated with me.

    As many pointed out today, the Founding Fathers were visionary in their ability to look down the road and see what the future had in store for the United States. They had this ability because they were keen students of history, political philosophy, and human nature. David said it well, “Clearly, our Founders were men of letters who understood the precedents of their age.”

    As Susan H. pointed out, history does repeat itself. Our founders understood that fact much better than we do today. These days we tend to believe we are immune to the cycles that every civilization has experienced throughout the ages. If our forefathers were with us today, they would certainly be able to predict our future better than we can ourselves!

    Carolyn pointed out Horace’s last line, which I loved: “The very large swath of land and significant population of America potentially were the greatest strength of the nation in unity but could be its greatest weakness in disunity.” I felt that summed up Federalist #5 perfectly!

    I am continuing to learn much from you all! Thank you for taking the time to share your thoughts. Please invite others to join us!

    Looking forward to Federalist No. 6!

    Cathy Gillespie

    PS – We are working to consolidate all blog comments onto the Daily Guest Bloggers page, and Janine and I will be posting our daily essasy on the Guest Blogger’s Post as “Comments” as well as the usual standalone posts. Please post all your blog comments on the Guest Bloggers Page so its easy to see all the great comments in one place! Thank you!

  21. Seij De Leon says:

    The reasoning in Jay’s writing is solid, there wouldn’t of been any other way to make this nation powerful without unity. But it wasn’t a problem free solution, even as the states came together there was still constant internal bickering mainly between the North and South concerning slavery. Had the United States not been formed, their would have been no single power to regulate decisions concerning slavery in newly formed states and separated states could have made chaos in fighting for what they want, earlier in time than just the civil war.

  22. Howdy from Texas. What a great conversation today. I have to tell you guys, or y’all, I am really learning from not only our guest scholars, but from you who blog. Today was a most thought provoking dialogue. I thank you for joining us and for spreading the word about our “90 in 90.” A great civic discussion, based on the founding principles of our country, is just what our country needs.

    I thank Horace Cooper for his wonderful essay today. Thanks Horace!

    I related to what Tricia said in her blog today regarding the fact that a union gives us the ability to disagree yet to unite in times of trouble. An analogy would be a family. Families may bicker but – watch out – because they will defend each other when one is confronted or in danger.

    In relation to the founding era and Federalist No5, there was still so much to be imagined, discovered and resolved. There was an abundance of mystery in America. This is one of the brilliant aspects of Publius – they had such foresight, almost prophetic. They knew there were differences amongst the peoples of America, with a vast portion of America yet to be discovered and claimed, but they also new that it was better to be with each other rather than against one another; to be governed by a unified vision.

    As our two hundred thirty -four years have evolved, it has become apparent that our differences did drive stakes into our passions but they did not dismember us. If we had not found stability as a burgeoning union then we would never have been able to survive the challenges that were to be wrought by the civil war and the great depression.. to name a few.

    So what is the relevancy of Federalist No5 today? It is in defining the boundaries between the federal government and the states in the twenty first century. It is in the understanding of how much power our founding fathers really intended the federal government to have. It is in the reckoning and reconciling of the autonomy the states were intended to have and should have today. The answers to these questions are complex, especially because it is inordinately hard to rein back leniencies that have already been dispersed. Once one foot is in the door, it is very hard to close it again. Has the federal government planted its boots upon our thresholds too boldly?

    I dare say many of us would answer yes. I dare say many of us agree with Arizona in regard to the fact that she has the right to make her own laws, yet look at how her autonomy is disrupting the union. Is this not exactly what Publius was predicting? However, today, is the fault with the state or with the Federal government who failed to protect her and her people? Or is it the state’s right to defend herself? Is this not addressed in the Constitution in Article I Section 8.16? I, personally, would like to hear some thoughts from our scholars as to what exactly Article 1 Section 8.16 means in relation to Arizona.

    It is only in the educating of America about the United States Constitution that these questions may be answered. Knowledge is power. We cannot appreciate what has been taken away if we have never known what was rightfully ours in the first place.

    The monarchies of Europe didn’t want their “people” educated. An educated people meant that they would be able to see the truths. These truths are self-evident: If we don’t utilize our educated voice someone else will speak for us. And all of our rights will be lost.

    God bless,

    Janine Turner
    5.4.10

  23. Kellie says:

    The conflict in AZ today really brings home this issue of unity and states’ rights which is so important to understand if we are to protect our country. The federal government needs to get back to playing the role of protecting the states by enforcing the federal laws already put in place. By turning their back on AZ, they are essentially advocating the disunity. I never really understood how important it was to give the states rights to govern their citizens, yet have the federal government to protect and govern the states. I think the only hope is that people of America and especially AZ understand these concepts and educate each other on the consequences of disunity, and they not let our federal government forget the original principles as discussed in these papers.

 

 

Wednesday, May 5th, 2010

Federalist #6

Essay number five closed with recognition that what is decisive in human communities is the political distinction, the political identity. That settles the question of what is “near and dear.” That distinction lies at the root of warfare. It follows accordingly that one lessens the chance of war by setting thins up so that people will call the same things “near and dear.” This means, at a minimum of course, that when people seek to resolve their most important questions they will all expect the authoritative answer to come from the same source. They will all appeal to the same Solomon.

None of this means that Publius envisions a human landscape from which all war has been eliminated. He described controlling war within the precise political environment of the United States by means of constructing a political identity for these people called Americans. This is made clear in essay number six, in which Publius speaks explicitly against utopian speculation.

Men, he argues, are ambitious, vindictive, and rapacious. They are so because they differ regarding the things that are near and dear to them. One reacts to those things which are not one’s own more under the influence of those passions of ambition, vindictiveness, or rapaciousness than with in respect to what is one’s own. The founding seeks to insulate this characteristic in human beings by teaching some set of human beings to hold the same things “near and dear.”

Note, too, that the statement about human character does not add the familiar phrase, “by nature.” It is not necessary to conclude that human nature is evil in order to see that certain evil (fallenness) is attached to human nature. There is another view that human nature itself is evil, that is sometimes falsely attributed to Publius. This very negative portrait of constitutionalism makes it appear that the whole purpose of the constitution is to prevent Americans from doing all the evil they can to one another.

The first essays in The Federalist Papers convey exactly the opposite picture: it is admitted that evil is possible; it is admitted that government is necessary; it is admitted that people do violence; it is admitted that there are causes of war rooted in human nature; but there is still the positive endeavor, which is the real driving force of this founding, and that is the endeavor to build a nation of one people who call the same things near and dear.

This emerges clearly in the third paragraph of essay number six:

The causes of hostility among nations are innumerable. There are some which have a general and almost constant operation upon the collective bodies of society: Of this description are the love of power or the desire of pre-eminence and dominion – the jealousy of power, or the desire of equality and safety. There are others which have a more circumscribed, though an equally operative influence, within their spheres: Such are the rivalships and competitions of commerce between commercial nations. And there are others not less numerous than either of the former, which take their origin intirely [sic] in private passions: in the attachments, enmities, interests, hopes, and fears of leading individuals in the communities of which they are members.

These separate categories that Publius has listed all relate to one another, but the most important thing about them is that they are distinct, separate. The love of power, to take an example, is different from the private passions. The rivalries and competitions of commerce also differ from private passions. In a manner of speaking, these factors may not be passions at all, they may be perfectly rational. If by passions, we mean what is not rational, then we cannot call all these things “passions.” That means that the causes of war are not necessarily irrational.

To imagine that wars come about only because of failures of reason is probably one of the greatest mistakes. Some wars are thoroughly rational. Above all, ina case wehre people palce themselves ina situation to invite war. Let’s remember essays three and four: “the nation must place itself in such a situation that it will not invite war.” It will invite friendly intercourse, not war; which is why prosperity is a precondition for peace rather than a consequence of peace.

Having made that distinction, and having distinguished the private passions from other conceivable causes of war, we now note that the private passions are not less interesting because they are arational. For they bear upon the question of public opinion, and the preceding discussion turns almost entirely upon the question of public opinion.

In paragraph seven of essay six Publius again discussed the general clauses and examples of wars, now focused on the United States. He remarked that great national events sometimes are produced by petty personal matters, and he described Daniel Shays of Massachusetts as a desperate debtor. Then he added that it is much to be doubted whether there had bee a rebellion had Shays not been a desperate debtor. Thus, Publius wonders out loud whether the brief civil war was caused because a desperate person was carried away or because a person of enormous capacity for leadership was desperate. Accordingly, private passion must be taken into account no less than rational opportunities. If Shays with his talent had not been made desperate, he had not organized thousands of debtors and farmers.

In the next two paragraph Publius set up a measure of the distance what he called visionary or designing men, on the hand, and the hardheaded realists of political life on the other hand:

The genius of republics (say they) is pacific; the spirit of commerce has a tendency to soften the manners of men and to extinguish those inflammable humours which have so often kindled into wars. Commercial republics, like ours, will never e disposed to waste themselves in ruinous contentions with each other. They will be governed by mutual interest, and will cultivate a spirit of mutual amity and concord.

What a lovely, visionary portrait of the modern dispensation! But Publius rejects it, no matter how close it comes to the view that prosperity is a precondition for peace. Publius says that it is not enough to form a republic and to practice commerce. In fact, he responds to both issues, when he wonders whether “it is not the true interest of all nations, whether republics or not, to cultivate the same benevolent and philosophic spirit.” Commerce may well soften manners, but it equally well provides new occasions for jealousies, new occasions for conflict. In short, Publius rejects the new and modern principles of the enlightenment, that greater human understanding will eliminate causes for war.

Publius’s argument is particular to the political organization of the untied States. Our discussion emerged from considering domestic violence. Publius examined commerce among the states, but noted that the commerce would not disappear because of Union. The only difference is a difference in practice or habitude. The various states (New York, New Jersey, Connecticut, say) would experience the same necessities. But under the Union they would all turn to the same source for help when problems arise. They would call the same thing near and dear by turning to a single Solomon. IT is the act of agreeing upon a single Solomon that predisposes men to be more peaceful with one another, more like brothers than enemies.

W. B. Allen

Dean and Professor of Emeritus

Michigan State University

27 Responses to “May 5, 2010Federalist No. 6Concerning Dangers from Dissensions Between the States, for the Indpendent Journal (Hamilton) – Guest Blogger: W. B. Allen, Dean and Professor Emeritus, Michigan State University

  1. Maggie says:

    I found it very striking that he brought up the jealousies that can and will occur between states due to successes. Is this not what is happening today with our jealousy of corporate America? We want the fruit of other’s successes.

    I was also moved by this paper because, to me, it seems to reflect upon the current unrest and calls for dissension by a few states. We look to each other (as states) and want what others have or don’t worry about other’s problems because we don’t see them as our own. Hamilton knew so many years ago that this could be an issue.

  2. Susan Craig says:

    The first five papers argue for the primary reason for government defense of the people. Now in six it is posited that the next reason for a national government arbitration between the sovereign states to peaceably resolve differences. They do not start from the belief that man is inherently good, argue from the knowledge that man is inherently flawed and sinful and will often act from any of the seven deadly sins (greed, lust, etc.)

  3. Bache says:

    B. Franklin once said, “They who would give up an essential liberty for temporary security, deserve neither liberty or security.” I believe the life of every American citizen and or state was and is impacted by the whole, ie. one nation. Relinquishing a liberty for the short term forsakes longterm security. “We must indeed all hang together or most assuredly, we shall hang separately.” This famous quotation by Benjamin Franklin is a principle our Founding Fathers agreed to not only as a nation but personally by pledging their fortunes, families, and honor. Who today would be willing to take such an oath as this?

  4. trish says:

    Susan I really like how you brought a central theme for the first 5 papers. Good thought!

  5. Kay says:

    Hamilton’s sentences are long and more involved than John Jay’s, and take more concentration on my part. The essays and commentaries on each Paper condenses the information, bringing out the highlights. I am so enjoying this series.

  6. Samantha Curtis says:

    None of this means that Publius envisions a human landscape from which all war has been eliminated. He described controlling war within the precise political environment of the United States by means of constructing a political identity for these people called Americans.

    — So he is saying that America is not prefect that we are always going to have wars. But we need to control the war in a political way?

  7. Carolyn Attaway says:

    After reading Alexander Hamilton on #6, I realize how much I miss John Jay’s writings. John Jay was very concise, whereas I find Hamilton’s words very flowery. It reminds me of when Abigail Adams told her husband “John, people know you are highly educated, you don’t have to remind them in your speeches.” I guess I am going to be an unhappy camper for awhile

    That being said, there were 2 phrases that jumped out at me: “A man must be far gone in Utopian speculations who can seriously doubt that,” and “There have been, if I may so express it, almost as many popular as royal wars”.

    One definition of Utopian is an ardent but impractical political or social reformer; visionary; idealist. I believe we are experiencing this mindset today regarding our national security. Many believe we only need to discuss our differences with those that oppose us and we can solve all our problems. This is unrealistic for many reasons, and as Hamilton explains, this logic forgets that some men are ambitious, vindictive and rapacious for no other reason than human nature. Hamilton realizes that most people strive for a Utopia, but he writes that because of the many causes of hostility between nations, this place is seldom, if ever found.

    The second phrase regarding popular versus royal wars, reminded me of when the majority of Americans supported the IRAQ war, when their passions ran high and demanded action for the horrendous crime committed on our soil. The outcome of this war has split our Nation after several years because of many reasons, and now many question why we entered the war in the first place.

    @Bache Today, only about 50% of the American population if you take in consideration that about 47% now receive some form of government entitlement.

  8. Susan says:

    @Carolyn, I so totally agree with you on the styles of the two writers. Hamilton requires my complete attention. That being said, I am so impressed with how the Founding Fathers have anticipated all these problems in the future.

  9. Roger Jett says:

    The Federalist Papers , as other commenters have pointed out, were directed toward a New York readership in hopes of bringing them into the camp that was arguing for a strong national government. Hamilton in particular wrote from a point of view that didn’t play as well in other parts of the country. This I think was particularly true of Paper #6 as some perception has been (both past and present) that he trivalized and mocked the plight of a very large portion of the citizenry when he labeled their protests as disturbances, revolts and rebellions. These people who had been made destitute by the war and by subsequent economic depressions, felt severely oppressed by their government. Those in position of power demanded payment of obligations in gold or silver. Many soldiers, farmers and other contributors to the war effort found themselves after the war undercompensated or even unpaid entirely for their sacrifices. The continental notes at that point in time were devalued to the point that they were widely considered of little or no value. The courts confiscated property to settle debts and many found themselves in debtor’s prison. A few protestors found themselves hung for treason! In this paper Hamilton mentions situations in three of the states ….North Carolina, Pennsylvania and Massachuetts. In his commentary Professor Allen identifies for us Shay’s Rebellion as the Masssachuetts’ incidence. I believe the disturbance in Pennsylvania that Hamilton alludes to would be the “Fries Rebellion” which is were the people were being assessed taxes for the number of windows they had in their homes (this was way before they had tanning beds). I presume, but may be doing so wrongly that the reference to North Carolina was referring to the establishment of the temporary and unrecognized State of Franklin which was located at what is today eastern Tennessee, but which was at that time considered a part of western North Carolina. The Federalist Party took political hits from their opponents due to the perception they were often against the common people in these various events and others. In saying all of this, I have no intentions of taking away or minimizing the enormous contribution that Hamilton made in leading our country to a magnificient republic with a constitution that is enequaled and has long endured the test of time. Hamilton is certainly deserving of the great honor bestowed upon him as a ” Founding Father.”

  10. Andy Sparks says:

    Hamilton speaks directly to the weakness of the federal government under the Articles of Confederation in this essay: “Let the point of extreme depression to which our national dignity and credit have sunk,…from a lax and ill administration of government.” The loose confederation under the AOC is causing the new found freedom established by the Declaration of Independence to be threatened both without and within. Only under a new government such as proposed by the as yet ratified Constitution can prevent the discord among the states (such as Shay’s Rebellion) from ruination.

  11. Laurie says:

    I too need assistance with Hamilton’s writings, so I want to thank professor Allen for his helpful comments. I was struck by his use of what is “near and dear” to us as a nation, our political identity, what truly holds us together as Americans. That identity has been under such terrible attack by so many for so long, that it has undermined our unity as a people. Now we are being pushed into groups, not so much warring states, except for Arizona, but isn’t that really a group identity issue, too. It is not the states at war so much as the political groups we are being made to identify with and to feel are more important than anything else. Aren’t people thinking of their political identity with their group, rather than with America as a whole? Aren’t we being set up here with the shift to think of what is “near and dear” to our group, rather than to our country?

  12. Howdy from Texas! I thank y’all for joining us! Federalist No. 6 is yet another fascinating reading. Yes? I want to thank our Constitutional scholar, W.B. Allen, for breaking down Federalist Paper No. 6 with such superb detail.
    Thanks Mr. Allen!

    The complexity of this particular paper is mesmerizing.
    I am enthralled by the examples of former empires, the rise and fall of these republics, and the reasons why. The relevancies in today’s reading are many but the warnings are simple and the question singular. How to we keep the United States of America from failing? The warnings from history provide wisdom. The republics of Sparta, Athens, Rome and Carthage were ruined by wars and greed, Holland was overwhelmed in debt and taxes and England and France were beleaguered by antipathy toward one another.

    It is interesting to reflect upon the fact that one of the reasons Alexander Hamilton, John Jay and James Madison could make such brilliant observations is because of their superb education. Alexander Hamilton should be an inspiration to many who believe that one has to be born into wealth to receive such an education. I wrote about Alexander Hamilton’s mother in my book, “Holding Her Head High.” Alexander was raised by his single mother, who by example, taught him at an early age the art of business and the spirit of tenacity. Yet, he was very poor. When his mother died he was in desperate need of a new pair of shoes. He may have had no shoes but he had spirit, determination and true grit.

    Are these not qualities that Americans hold “Near and Dear” – spirit, determination and true grit. These American characteristics were why we won the Revolutionary war and these are the qualities that keep America great today. We are a country, a republic, where one may dare to dream. We are a country where, according to our Constitution, no one may receive titles of Nobility. We are a country where a boy born in a single room log cabin becomes President, where men raised by single mother’s become President, to name a few examples. We are a country where vision, perseverance and willingness to work hard can nurture the seeds of talent, in any man or woman, to fruition. In this respect we are all equal. In this respect we must hold “Near and Dear” our free enterprise, which yields the vast fruits of commerce, industry and personal ingenuity keeping America vibrant, solvent and safe.

    God Bless,

    Janine Turner
    5.5.10

  13. Maggie says:

    @ Carolyn…….You have a way of putting into words exactly what I am thinking after reading these papers. I can’t thank you enough for your contributions here.

    Laurie stated “Aren’t people thinking of their political identity with their group, rather than with America as a whole?”……and I couldn’t agree more. We need to stop thinking about issues on a “Right” or “Left” (or Republican vs Democrat) basis and get back to doing what is right for America.

  14. David Hathaway says:

    I personally enjoy Hamilton’s writing style. He uses difficult but valuable words that an earlier reader would have understood quicker than us. I am reminded of the difference between Spanish and English. Spanish tends to use more, easier, words while English uses longer, meatier words. The net result is that Romance language writings take more space. Just imagine how long this Paper would have been if Jay had written it!

    I find it interesting that Hamilton invokes Shay’s Rebellion. Again, I find it timely. DESPERATE DEBTOR Daniel Shay was largely desperate and in debt because his government had levied such high taxes. Massachusetts levied high taxes to pay off their war debt. So crushing was the tax burden that citizens insurrected against their own government!

    The experience was fresh in Hamilton’s mind as he became the first Secretary of the Treasury. It spurred him to address the National debt (not independent State debts), ultimately forming the First Bank of the United States.

    I think the rebellion is timely, because our present government is likewise saddling us with debt. How long will it be before we are inflicted with crushing tax rates? How long will it be before Tea Parties become Shay’s Rebellions? Well, at least to the mainstream media!

    I mentioned before the biography of Alexander Hamilton by Andrew Chernow. It’s very readable, as you’d want while straining the Federalist Paper soup. If you read the few chapters on Hamilton circa the post-Revolution and pre-Constitution, you might have even more insights.

  15. Carolyn Attaway says:

    @ Maggie . . . Thank you so much for your kind words. I, too, enjoy everyone’s contributions to this site. I have learned so much already!

  16. Chuck Plano, Tx says:

    I totally agree with getting back to doing what is right for America but remember we must think in terms of the Enumerated Powers of the Federal Government and not what has become today a total Federal System that has usurped the power of the States and the People.

  17. ERL says:

    After completion of the Federalist (and possibly Joseph Story’s Commentaries on the Constitution), I would recommend reading a biography of Alexander Hamilton. He had one of the most fascinating careers in American Politics. Unfortunately, he has been cast as the “villian” of the Founding Fathers, but our political, economic, and governmental system is more in line with his vision than that of Thomas Jefferson and James Madison.

    Hamilton wrote the Federalist Papers with little editing, making the finished product all the more impressive. (When he grew tired of writing, his wife recorded his dictation). He was also instrumental in creating the initial cabinet departments (he was the first Secretary of the Treasury), and in establishing the Presidency as a powerful policy-making branch of government, rather than simply an adminsitrator for Congress. Evidently, Jefferson and Madison envisioned a British-style Parliamentary system, where the leader of Congress would also be the leader (i.e., Prime Minster) of the US Government.

    Alexander Hamilton is probably the most misunderstood of our Founding Fathers.

  18. Ron Meier says:

    Two phrases struck me in Prof. Allen’s post. First, “prosperity is a precondition for peace rather than a consequence of peace.” Second, “IT is the act of agreeing upon a single Solomon that predisposes men to be more peaceful with one another, more like brothers than enemies.”

    As I mentioned a couple days ago, with respect to the first phrase, conflict is normal & peace is abnormal. Where properity doesn’t exist in the world, nations are run by dictators and seem to be in a state of constant civil war. Increasing prosperity does seem to have helped us avoid civil war for the past 150 years. Now, though, it seems that some of our countrymen are setting up prosperity as a straw man to be attacked and vilified and drawn and quartered in the name of peace through equal outcomes. Instead we should praise God for the prosperity that has enabled us to be the most generous nation on the face of the earth and the nation that other nations call upon to bring them peace.

    As to the second phrase, I wonder, what is the SINGLE SOLOMON upon which we might all, left and right, agree upon today that might nullify the internal conflict that is beginning to tear us apart? Troops in combat have that single Solomon, which is that they shed their blood and endure personal hardships for their comrades; that makes them a Band of Brothers. We don’t seem to have that single thing that makes all Americans feel like a Band of Brothers; we don’t endure much hardship together and we certainly don’t have each other’s backs to watch out for. Remember Curly from City Slickers who said the secret to life is ONE THING; Mitch asked what the one thing was and Curly’s response was “that’s what you’ve got to figure out.” We’ve got to figure out what our one thing is. While we might all agree on the qualities that Janine mentioned as those American hold near and dear, they appear important, but not sufficient, today to be our single Solomon. It seems that we, collectively, need to agree upon that before we can overcome our current internal conflicts. Anyone have any ideas on that Single Solomon? Or, as Curly might say, that one thing?

  19. Andy Sparks says:

    David, Hamilton addressd both the national AND the state debt. His assumption plan incorporated all the individual state debts with the national debt. The federal government would assume all the debt and pay off the interest only at a guaranteed rate. This would establish good credit with the rest of the world and insure that the wealthiest classes of America would be heavily vested in the success of the United States federal government: a very shrewd plan that worked wonders at putting the new nation on solid financial ground.

    But you are right about early hints at his eventual policy in Federalist #6. I think he was saying that if the debt crises created by individual states financially at odds with one another were replaced by a government that did something like assume all of their debt, perhaps Shays would not have had a reason to rebel.

  20. Roger Jett says:

    Would like to make a correction to a tidbit in my earlier post this afternoon. I had speculated that Hamilton was referring to the “Fries Rebellion” when he alluded to a late menacing disburbance in Pennsylvania. Well that was wrong since this rebellion took place about twelve years after the ” Federalist Papers” were written. It’s a small matter, but does anyone know what event Hamilton was referring to ? My initial thought had been the “Whiskey Rebellion” of western Pennsylvania, but that took place later also.

  21. Andy Sparks says:

    Roger, Hamilton was referring to an incident in the Wyoming region of Pennsylvania where a group of people were trying to separate with other local regions to form their own state. It was serious enough that the Pennsylvania legislature resolved to call out the militia if things had gotten worse. See the minutes of the the legislature below:

    http://www.archive.org/stream/minutesofgeneral178790penn#page/n11/mode/2up

  22. WeThePeople says:

    Bringing up previous regions and unions that have experienced internal conflict… What is it with the federalist papers authors and the idea of an imminent civil war? This subject was touched upon in all of the federalist papers so far, and it was mentioned in the Constitution. It’s like they are psychic or something… just kidding, but I do find it strange.
    Roger Jett, if your previous assumptions about the rebellion were wrong, which one is it referring to? Any further insights?

  23. Jim Sykes says:

    In response to Ron Meier. There is no “one thing” for all individuals and that is what I believe Curly was trying to tell Mitch. The reference to Solomon to me refers to the Solomon of the Bible. To answer Ron’s question about “my one thing” is my belief in God and His power to heal our nation if we will simply pray for Him to do so. I ask each person who reads this to do exactly that tomorrow at your local meeting to observe our National Day of Prayer. A special thank you to Janine and Cathy and may God bless you all for participating here and for trying to return our great nation to it’s rightful place as our Creator intended.

  24. Ron Meier says:

    That may be the “one thing” we’re lacking as a nation, Jim. “One nation, Under God.” It is being undermined every day.

  25. Hi everyone – thank you to Professor Allen for your enlightening essay! And thank you to everyone for your comments today.

    I love the realism of Alexander Hamilton: “men are ambitious, vindictive, and rapacious. To look for a continuation of harmony between a number of independent, unconnected sovereignties in the same neighborhood, would be to disregard the uniform course of human events, and to set at defiance the accumulated experience of ages.”

    We are fortunate our founding fathers were well read students of history, philosophy and political systems. They understood that we, as humans, are imperfect, and that civilizations through the ages have fallen victim to the character flaws of their leaders and citizens, time and time again. The Constitution they proposed, with its delicate checks and balances, was designed to take man’s nature into account.

    My favorite line from this essay was “Is it not time to awake from the deceitful dream of a golden age, and to adopt as a practical maxim for the direction of our political conduct that we, as well as the other inhabitants of the globe, are yet remote from the happy empire of perfect wisdom and perfect virtue?”

    Over 200 years later, we, and the rest of the world, are still “remote from the happy empire of perfect wisdom and perfect virtue”-a state humans will most likely never attain. As we consider how we deal with Iran and other terrorist nations, we should remember Alexander Hamilton’s words, and not assume we can simply talk things out. These nations have not had the benefit of freedom. Oppression breads violence, and reinforces man’s darker side.

    The United States of America, though, is one of the greatest humanitarian and charitable nations on the planet. How is that possible, given the nature of man as described by Hamilton? Our founders – we the people – designed a government based on Godly principles, ceding only enough power to the government to keep man’s darker side in check, but allowing the freedom necessary for our better qualities to flourish, and be brought to bear upon the problems facing our Nation and the world.

    Cathy Gillespie

    PS – We are working to consolidate all blog comments onto the Daily Guest Bloggers page, and Janine and I will be posting our daily essasy on the Guest Blogger’s Post as “Comments” as well as the usual standalone posts. Please post all your blog comments on the Guest Bloggers Page so its easy to see all the great comments in one place! Thank you!

  26. Jesse Stewart says:

    Many of you have commented in a similar way to mine today. My initial reaction to this paper was that Hamilton’s argument made sense, but upon reflection realized that even the holding the same “near and dear” can’t always keep the states together – we had a Civil War after all! From disagreements over land in the early days of our nation to today when states and other governmental entities are fighting Arizona over its own state law and states taking sides on the constitutionality of health care reform, we will never get rid of the personal and “momentary passions” that afflict man.

    We’ve come through disagreements before and united in times of crisis – I hope we will do so this time!

  27. Tim Shey says:

    The nature of life is antagonism. Life is war; war is life. Why? Because of our fallen nature. As long as there is Christ and Satan at work in human endeavor, there will always be conflict. Alexander Hamilton knew this. We need limited government to protect the innocent and powerless from those that would abuse their power.

    As a Christian, my life is governed by the Lord. If I abide in Christ (or if I am strong in Christ), then it is very hard for Satan to tempt me or influence me. If I am an unbeliever or weak in Christ, it is much easier for Satan to disrupt my life.

    If a nation is morally weak, this invites attack from other nations. The Marxist remedy is to concentrate on education (liberal propaganda) and redistribution of wealth and a mega government that solves all of our problems and everything will be fine and dandy because there is no such thing as Original Sin. The Christian remedy is to repent of our sin, seek God and the Lord will heal our land–and then the Lord will raise up righteous men to govern the nation.

    When the Israelites were in sin, they wanted a king to govern them just like the nations around them. But this is being conformed to the world. Mosaic Law and to be ruled by the judges were what the Lord wanted for the Israelites. But sin breeds more selfishness and more blindness, and so they wanted a worldly king (King Saul). The Lord told Samuel that Israel did not reject Samuel, but they had rejected the Lord and the Lord’s plan for their lives. King Saul ended up being one of the worst kings in the history of Israel.

    This Obama Administration is another King Saul. If the United States turns back to God, the Lord will raise up another King David, so that we can get rid of demonic strongholds in high places.

    Obeying the Lord is internal government; the U.S. Constitution is external government. The internal must come first before the external can be effective.

Thursday, May 6th, 2010

Federalist # 7

Publius in the seventh essay of The Federalist Papers focuses entirely on examples of the kinds of disputes that could, in the event of disunion, reduce the United States into a replica of the European wars that had long colored that continent.

The examples cover territorial disputes, commercial disputes, debt settlement disputes, state laws violating contractual obligations, and alliances with foreign powers. In each of these examples Publius adopts the probable reasoning of prudent statesmen, not predicating intrinsic hostilities among the states but rather arguing from the operations of interest and the resentments of injuries real or perceived.

His point is simple and clear: without a trusted judge either to settle such disputes or to obviate them altogether through uniform rules where appropriate, there would be no ready instrumentality of resolution. Sometimes the disputes would be regulated through negotiation. But at other times, as occurs elsewhere, they would eventuate in conflicts that remain unresolved save through war. Publius’s point is not that war among the states is a likely prospect, but rather that the habits of independence and self-reliance would eventuality develop into hardened positions that would not admit of easy resolution.

The arguments developed especially in essays two through six, therefore, receive their concrete political application in a consideration of the actual circumstances of the states and the effects of their contiguity. What ought to be matters of domestic difference resolved through the rule of law would become matters of international conflict, for which there is no agency or instrument of resolution apart from the contest of force. He concluded:

The probability of incompatible alliances between the different states, or confederacies, and different foreign nations, and the effects of this situation upon the peace of the whole, have been sufficiently unfolded in some preceding papers. From the view they have exhibited of this part of the subject, this conclusion is to be drawn, that America, if not connected at all, or only by the feeble tie of a simple league, offensive and defensive, would, by the operation of such jarring alliances, be gradually entangled in all the pernicious labyrinths of European politics and wars; and by the destructive contentions of the parts into which she was divided, would be likely to become a prey to the artifices and machinations of powers equally the enemies of the all. Divide et impera must be the motto of every nation that either hates or fears us.

The force of the argument is immediately discernible in the eventualities o the War for the Union of the 1860s, in which not only the differences among the states produced eventual warfare, but the prospective intervention of foreign powers was seriously bruited and nearly obtained. Stated plainly, the Union was created for the sake of the rights of self-government described in Federalist one but also to grant Americans space to grow in peace.

W. B. Allen

Dean and Professor Emeritus

Michigan State University

21 Responses to “May 6, 2010 – Federalist No. 7 – The Same Subject Continued: Concerning Dangers from Dissensions Between the States, for the Indpendent Journal (Hamilton) – Guest Blogger: W. B. Allen, Dean and Professor Emeritus, Michigan State University”

  1. Brad says:

    I am still thinking about Shays “rebellion”. Quite frankly, I feel that Shays got a really bad deal. From my reading, he was a Revolutionary War veteran of much decoration having served in several theaters with distinction. He seemed to desire to return home and live out his life in peace UNTIL such time that the state of Massachusetts had other ideas. Did the elite “intellectuals” in Boston really believe they could tax and tax to death the common man to ruin? Shays pleaded for reconsideration and relief from this new oppression. What he must have been thinking to face a new taxing tyrant.
    Hamilton and Jay are correct to point out the dangers leading man to revolt. In this case, though, the state of Massachusetts was able to take care of this problem on its own. Albeit in a way that I feel was disgraceful. Gov. Boudin’s actions were tyrannical. Thank goodness Hancock replaced him soon enough to restore calmer heads and unified the state. It is a fallacy to think that a greater Federal Government was needed at that time. What was needed was a smarter and more humane state government. I feel that Publius falls short in argument here. I feel that this is not a good example where a unified central government would be more productive in local affairs.
    Note our current state of affairs. We the people do not need more oversight on a local level pushing its weight around.

  2. Maggie says:

    This part of Hamilton’s essay jumped out at me as I read…”There is, perhaps, nothing more likely to disturb the tranquillity of nations than their being bound to mutual contributions for any common object that does not yield an equal and coincident benefit. For it is an observation, as true as it is trite, that there is nothing men differ so readily about as the payment of money.” Truer words were never written. We battle over money and who pays more tax and who gets more benefits from those taxes EVERY DAY.

  3. Susan Craig says:

    So far in the past two Federalist Papers (6 and 7) I’ve seen nothing to suggest that the National Government was to regulate and control commerce between states. What I see is a proposed arbitration and adjudication of differences between the sovereign states.

  4. Carolyn Attaway says:

    Maggie, I would have to agree with you on the accurateness of the quote by Hamilton. Not only is it distasteful to have to pay taxes to a government that carelessly uses the money it receives from it’s hardworking citizens; but to have to pay mandatory taxes for causes that many believe are unconstitutional or wasteful, is adding even more salt to the wound. Case in point, the current HC Reform bill, and sending taxpayer money to the World Bank to bailout countries like Greece.

    Which brings me to the statement that was written with a highlighter on it: “The public debt of the Union would be a further cause of collision between the separate States or confederacies. The apportionment, in the first instance, and the progressive extinguishment afterward, would be alike productive of ill-humor and animosity.”

    All I could think of when I read this statement was CALIFORNIA. Today, through the policies and laws the state of California has adopted, this state has crippled their economy to the point of backruptcy and now cries “FOUL!” California demands that her sister states bail her out and pay for her bad decisions. The other states, especially those who have watched their budgets and acted prudently in good times to help themselves through the bad, bristle at the charge that they must pay for California.

    Without the Union, I believe the majority of Americans would allow California to fail. Hopefully, because of the Union, California can be assisted but with very strict conditions. California needs to take the New Jersey route.

  5. Roger Jett says:

    The stated mission of “Constituting America” is to educate America about the validity, necessity and Providential Divinity of the Constitution. On this National Day of Prayer let us pray for the success of this mission. As Janine Turner says “we must not let those who devalue freedom to dominate the debate.” Before we debate though …. let us be sure to pray for wisdom…. learn all we can and can all we learn …. discern truth and preserve it …. be absolutely sure we are right …. and then …. by all means …. go ahead !

  6. David Hathaway says:

    @Maggie – leapt out of the page at me, too!

    @Susan Craig – I believe these were written to show the merit of the proposed Constitution. Yesterday’s Federalist No 6 began,

    “THE three last numbers of this paper have been dedicated to an enumeration of the dangers to which we should be exposed, in a state of disunion, from the arms and arts of foreign nations. I shall now proceed to delineate dangers of a different and, perhaps, still more alarming kind–those which will in all probability flow from dissensions between the States themselves, and from domestic factions and convulsions.”

    So rather than proposing a system of arbitration and adjudication, or regulation and control of commerce, these last two papers describe the sorts of conflicts that The Constitution could prevent. Or perhaps mitigate. “Adopt The Constitution and these sorts of problems between States won’t occur [as much]“.

    I hope I didn’t misread the intent of your comment. I’m sorry if I did.

    I also like how Dr. Allen summarizes this:

    “What ought to be matters of domestic difference resolved through the rule of law would become matters of international conflict, for which there is no agency or instrument of resolution apart from the contest of force.”

    Nicely stated.

  7. Maggie says:

    @Carolyn…….I immediately thought of California as well. We’re in a rather sad state of existance here in Michigan as well due to the auto industry. I agree that we need to help each other out, but we also need to make sure that bad policy NEVER allows this to happen again.

  8. Susan Craig says:

    Yes what I was driving at is the current iteration of our government is seemingly intent on control of the national commerce not arbitrating differences between states. As I’ve read these papers the regulation and control of what business can and cannot be was States purview and any disagreements between States were to be adjudicated or arbitrated at the Federal level. I do not see Department of Labor and I certainly do not see a Department of Commerce that can and did tell a man who wanted to grow wheat for his own families consumption that he was in violation of interstate commerce laws.

  9. Debbie Beardsley says:

    Carolyn, While I am not going to argue with you about California’s budget issues, I am going to take exception to saying we want the other States to bail us out. Yes California is a mess right now partly due to the uncontrollable spending habits in Sacramento and the stranglehold the environmentalists and unions have on us. Another very large part of our problem are illegal immigrants and the fact that the Federal government is not doing their job in securing the borders and dealing with the fact that border states pay dearly for having illegal immigrants. Our Governor has asked the Federal government to pay for incarcerating the illegal immigrants that commit crimes and are sent to jail. This amounts to billions of dollars annually.

    As in Arizona, we have a huge problem with illegal immigration in California and the Federal government is choosing to do nothing. It is time for the Feds to step up.

  10. Carolyn Attaway says:

    @Debbie – I was referring to back in January of this year when Gov. Schwarzenegger asked for a federal bailout up to $8 billion. According to the Hill, “the California gov’t. knows they can’t raise taxes significantly without further destroying the state’s economy to generate jobs. With that option virtually eliminated, the governor is looking for help from outside the state; from the rest of us. Bail us out, he says, or we will end our welfare-to-work program and eliminate services for the elderly and the disabled.” The reports I read did stress that the majority of the voters didn’t favor a bailout, but approx. 33% did.

    I agree that the Federal Government needs to step up on illegal immigration. It is creating a huge problem in all states, but mostly in the southern border states. With those borders open, anyone from anywhere can enter the USA.

  11. Chuck Plano, Tx says:

    Carolyn i agree with you on the problem of illegal immigration but part of the problem in California is that eventhough your Governor has ask the Federal Government to pay for the cost of the incaration of the criminal element involved in illegal immigration it has done very little to confront the problem itself such as Arizona has done. As long as the legislature in Sacramento continues to tax and spend and to encourage illegal immigration as it has done the problem will continue. Each state has it’s responsibility to uphold the Union as well as it’s own soverinty.

  12. Carolyn Attaway says:

    Chuck, I was replying to Debbie. I am not from California. I agree with you about the taxing and spending in California, and I realize that illegal immigration is a problem.

    The original point I was trying to make is that California has the 8th largest economy in the world, so even though it is a state, it’s economy is larger than most countries. Saying that, some legislators feel California is too large to fail, and if we do let it fail, the effects will be felt globally. Look at the impact Greece is making. Many say California is Greece three years from now, if things do not drastically change.

    From everything I read, California is also one of the highest in taxes, so they cannot tax their citizens anymore. Therefore, the Gov. requested a Federal Bailout. If California is awarded a Federal Bailout, it will be paid from the taxpayers of the other non-crisis states. Also, from what I read the states are reluctant to bailout California for many reasons, but 2 of them are 1) States are trying to save what money they have for their own needs, and 2) California refuses to change it’s liberal programs if awarded a bailout.

  13. i agree with what carolyn and chuck said. immmigration is not the federal governments responsibility. In my opoinion it shpuld be on the state, its their responsibility to keep the country in working order. The uniuon itself keeps the states in check, and without the union, states would turn on eachother.

  14. Maggie says:

    @ Joshua……I don’t think that Carolyn and Chuch and saying that immigration is not the Federal Government’s responsibility…..on the contrary, it is very much their responsibility. They, however, are not living up to their responsibility. The problems already exist with too many illegals and incarceratiion issues. Since the Feds refuse to due their job, AZ HAD to take matters into their own hands. California wants to boycott AZ….forget trying to get them to help themselves and deal with the illegals on a state level. The point I believe that others were trying to make is that 1) California needs to deal with the illegals to try to better their own situation and 2) California needs to change it’s incredibly liberal entitlement programs…..these two things need to happen before a national bailout will do anything other than throw money down the toilet.

  15. Maggie says:

    Sorry….I meant to say “Chuck”. I’m typing too fast.

  16. Carolyn Merritt says:

    @Joshua. Unfortunately or fortunately, however you want to look at it, immigration is the federal government’s responsibility. However, the federal government is not doing its job, therefore, the states are left to take care of it. Because the government is turning a blind eye to its duties to the states, the states are turning on each other. I find it reprehensible that this president is misstating AZ’s law since it follows the federal law and by misstating the facts, he has helped incur the anger on both sides of the illegal immigration issue.

    Please correct me if I am wrong.

  17. Howdy from Texas. I thank you for joining us today! I, also thank Professor W.B. Allen for his essay. As I was reading his essay today I realized how grateful I am that he has graced us with his wisdom and that he, and our other guest scholars, have so deftly interpreted the meaning of the Federalist Papers. Isn’t it wonderful?

    I hope you are checking out the Daily Behind the Scenes Videos that I am filming, editing and uploading every night! They are on the website – it’s the box on top of the “90 in 90 = 180” box – the top, center of the home page. I am wearing a red dress. I am really enjoying filming this every night and writing the daily essays, but I am getting no sleep!!!

    Cathy, my co-chair, has written such inspirational essays. Thanks Cathy. You are a true American Patriot – as are all of you who are joining us! Please spread the word about our “90 in 90” and our “We the People 9.17 Contest” for kids!!

    Today’s reading continues to focus on union and the danger we would face from Europe if we did not unite.

    Strength in numbers and unity through diversity is a true American-ism.

    One of the greatest miracles is that America won the Revolutionary War, but also, and no less importantly, that America survived her infancy and was directed by brilliant forefathers who were touched by Divine Providence. The United States Constitution was a miracle as well.

    There are a couple of Alexander Hamilton’s phrases that caught my attention today:

    The spirit of enterprise which characterizes the commercial part of America,
    has left no occasion of displaying itself unimproved.

    “The spirit of enterprise..” this is the heart and soul of Americans. We were hard working survivors with an independent streak that gave us the courage to cross the oceans to live in an inconceivable wildernesses and the adventurousness to cross the plains in covered wagons to endure an untamed land. Americans were of a fearless stock driven by an unbridled spirit.

    And we still are.

    This is why Samuel Adam’s words still ring true to the American soul – a soul that was built upon generations of mavericks:

    The redistributing of wealth and pooling of property are despotic
    and unconstitutional.

    American’s thrive on the spirit of free enterprise and the freedom to pursue it.

    The government must not cripple America’s genius.

    God Bless,

    Janine Turner

    5.6.10

  18. Welcome to Federalist No. 7 – 90 in 90 = 180: History Holds the Key to the Future!!!!

    Are you all watching Janine’s Behind the Scenes Videos? http://gallery.me.com/janineturner62#gallery Tonight she gives a shout out to the Constitutional Scholar Guest Bloggers!

    Please check these videos out for the lighter side of Constituting America! You will be glad you did!

    In Federalist Paper No. 7 Alexander Hamilton explores possible causes of tension, disagreement and outright warfare between states if joined as a loose confederation instead of through the proposed U.S. Constitution.

    Territorial disputes, trade disagreements, apportionment of the public debt of the
    United States, “laws in violation of private contracts, as they amount to aggressions on the rights of those states whose citizens are injured by them,” and differing alliances between various states and foreign nations, are all listed as divisive factors which could prove destructive without a central arbitrating force.

    The fact that even with the ratification of the United States Constitution our country could not avoid civil war, validates Hamilton’s concerns that without the Constitution, the natural tensions between states would eventually erupt. Thanks to the founders’ wisdom and vision, even with civil war, the United States Constitution lit the path for the healing and reconstruction of our Nation.

    It is hard to imagine what the United States might have looked like if the Constitution were not adopted, but the founding fathers envisioned a future similar to Europe, and they knew they did not want to emulate the European countries. “From the view they have exhibited of this part of the subject, this conclusion is to be drawn that America, if not connected at all, or only by the feeble tie of a simple league, offensive and defensive, would, by the operation of such jarring alliances, be gradually entangled in all the pernicious labyrinths of European politics and wars; and by the destructive contentions of the parts into which she was divided, would be likely to become a prey to the artifices and machinations of powers equally the enemies of them all.”

    Our current leaders would be wise to assess if it is any more attractive today to emulate Europe than it was over 200 years ago. As we chart the course for the next two hundred years, we must choose if we embrace the U.S. Constitution and the founding principles of our country, including “The spirit of enterprise, which characterizes the commercial part of America.” This “unbridled spirit” as Alexander Hamilton referred to it, is part of what has made the United States a great nation. Will we bridle our spirit of enterprise and drift from the Constitution and our founding principles? And what will our Nation look like in 200 years if we do? Our founding fathers could most certainly predict the outcome, and if we read these papers carefully, we can too.

    Cathy Gillespie

    PS – We are working to consolidate all blog comments onto the Daily Guest Bloggers page, and Janine and I will be posting our daily essasy on the Guest Blogger’s Post as “Comments” as well as the usual standalone posts. Please post all your blog comments on the Guest Bloggers Page so its easy to see all the great comments in one place! Thank you!

  19. WeThePeople says:

    So, does this mean that any future “territorial disputes, commercial disputes, debt settlement disputes, state laws violating contractual obligations, and alliances with foreign powers” will fall to the hands of the Supreme Court? It said that there should be a judge, so I assumed Supreme Court or the judicial review.
    In response to @Joshua’s comment, if the federal government IS failing to do that job, wouldn’t the next logic step be that the immigration power goes to the states?

  20. Susan Craig says:

    From our initial founding document!
    We hold truths these to be obvious and beyond reproof. First God created all men equal, granted them rights; some of them being life, liberty and the freedom to strive for happiness. Second, our Government is instituted to protect and secure these rights; retaining power only with the consent of the governed. Third, When the government disregards its purpose and becomes destructive of these undeniable rights, it is the Right of the People to alter it or institute a new Government.

  21. Tim Shey says:

    I like what Janine Turner wrote:

    “Americans thrive on the spirit of free enterprise and the freedom to pursue it.
    The government must not cripple America’s genius.”

    Faith in God is freedom. Non-faith is sin–which is slavery. The opposite of faith in God is faith in human convention that rejects God (Marxism, big government). Slaves (Marxists) want to make slaves of other people because this is what their fallen natures dictate (“dictate” is an appropriate word, don’t you think? Somehow it reminds me of the word “dictator”).

    Free enterprise comes ultimately from some faith in God. I believe the Hand of God works much more smoothly and effectively in a free-market economy than in a slave (Marxist) economy.

 

Friday, May 7th, 2010

Federalist #8

The eighth essay presents a hypothetical case of a dis-United States. But it is the general argument that has been built that is germane to understanding the argument. Publius is aware of a “new politics” that has come to be, but Publius is no less aware that it will not produce perfect wisdom and virtue. That creates the moral and practical dilemma of defending the creation of a powerful government, one capable of “harmonizing and assimilating” diverse peoples and interests, while recognizing simultaneously that the government will not make people virtuous and wise. We wonder how to justify doing so, because we wonder whether there is any guarantee of a government’s goodness apart from the virtue and wisdom of its people.

The answers to all these questions, it seems to me, are conditioned on a single premise, namely that one refer to the consequences of the government and not its operations. Now, the chief consequence is peace where war would otherwise prevail. It is true that governments that are energetic – powerful governments – affect the characters of the people they govern. That is a necessary condition of energetic government, a fact that Publius makes clear. We may admit two facts, then – namely, that people will not be made virtuous and wise and, further, that government will nonetheless be driven by public opinion.

Publius calls it an idle theory or “utopian speculation” to imagine removing human weaknesses, but we still question, not whether theories of humans transformed into angels are correct but, rather, the reason for confiding all authority in society into the hands of imperfect human beings and ignoring all the other claims to rule that have existed in human history. There have been claims based on age; claims based on strength; claims based on reason, on wisdom, on piety. Why must we reject all those to place the entire society into the hands of what may be the foolish and the vicious, as Publius has done?

From this perspective even the principle of descent in a monarchy may seem intelligent. For, though from time to time an occasional stupid bastard will be born king, most of the time men get fairly decent, well-bred people (which in the absence of better guarantees is at least something to rely upon) and thus may hope for stability if not good government. The alternative seems to be to submit to rule by people that are not going to be improved by government and that might not govern well. Publius reserves the response to this dilemma to later essays discussing the operations of government. Still, he has raised the stakes very high in this argument, showing that, while the government will not itself make people virtuous and wise, it is nevertheless wise and virtuous to construct such a government.

The eighth essay allows Publius to demonstrate the propriety of such an undertaking in the hypothetical context of an America disunited. For, though no one knows how the experiment will work in the end, it is still possibly to speak at length about the opportunities afforded by modern principles (as he anticipates the elegant ninth essay!). He draws a firm distinction, noting that “the industrious habits of the people of the present day, absorbed in the pursuits of gain, and devoted to the improvements of agriculture and commerce are incompatible with the condition of a nation of soldiers…” Thus, the Americans will not have the old fashioned virtues, based on the martial spirit in small republics of ancient times.

But that observation serves only to augment the question, how does Publius deal with the problem of rendering a people suitable to rule in this new and modern context without guaranteeing their wisdom and virtue? That such reflections introduce the eventual and ultimate response to the question of domestic violence is of great significance. Essays nine and ten deliver the conclusion. But the end of the introduction in the eighth essay firmly establishes that what we desire to now is precisely how turning power over to the people (defending popular government, self-government) produces the promised prosperity and peace without changing human nature. One might almost think it to mean that human nature is no mean thing to begin with!

W. B. Allen

Dean and Professor Emeritus

Michigan State University

27 Responses to “May 72010 – Federalist No8 – The Consequences of Hostilities Between the States, From the New YorkPacket (Hamilton) – Guest BloggerW. BAllenDean and Professor EmeritusMichigan State University

  1. Susan Craig says:

    The worldview that Hamilton argues from is the fallen condition of man, this worldview has been warped into today where the self-esteem worldview insists that man is inherently good. This is sharply in contrast to all men have value in an inherently fallen condition.

  2. Carolyn Attaway says:

    In reading Paper #8, I could not help but notice that a lot of the arguments Hamilton made to convince his readers of the need for the states to have a Federal Government, can be used today as a defense against our war against terrorism.

    The following statement brought to mind the Patriot Act that was written into law on Oct. 26, 2001, shortly after the attack on New York. “Safety from external danger is the most powerful director of national conduct. Even the ardent love of liberty will, after a time, give way to its dictates. The violent destruction of life and property incident to war, the continual effort and alarm attendant on a state of continual danger, will compel nations the most attached to liberty to resort for repose and security to institutions which have a tendency to destroy their civil and political rights. To be more safe, they at length become willing to run the risk of being less free.”

    Many Americans did not oppose this legislation at the time of its creation because the attack on American soil created a great fear of possible repeat attacks and Americans were greatly concerned for their safety. Nine years later, more Americans find the Patriot Act outdated and an intrusion into their private lives.

    Today, I believe many are in the ‘Utopian speculations’ that we discussed in Paper #6.

    @Susan – I agree with you that today the overplayed importance of self-esteem has warped our society and has taken us from the mindset of “The needs of many outweigh the needs of one” to “The needs of one outweigh the needs of many”. The majority in this country are quickly being stripped of their rights to meet the rights of a few. Whoever thought the toy in a happy meal would put extra burdens on a parent and keep them from giving their children healthy food?

  3. Maggie says:

    “The violent destruction of life and property incident to war, the continual effort and alarm attendant on a state of continual danger, will compel nations the most attached to liberty to resort for repose and security to institutions which have a tendency to destroy their civil and political rights. To be more safe, they at length become willing to run the risk of being less free.”……ok…I find this just too eerily close to what we have been doing here in the U.S. Under the guise of “keeping us safe” the government has convinced us for far too long to keep handing them more and more of our liberties.

  4. Maggie says:

    Sorry for the partial repeat of Carolyn’s quote reference. My computer is running very slowly today and her blog post had not yet come through at the time I wrote mine. It just causes me to reiterate that she has a knack for writing exactly what I am thinking.

  5. This is Cathy Gillespie – that quote leapt off the page to me as well!

  6. Carolyn Attaway says:

    @Maggie – great minds think alike :)

    The part that really makes me sit up and take notice are the liberties that are being stripped domestically in the guise of “We know what is best for you”. And all these concerns come in the form of regulations and taxes. Is our government today going the way of the Stamp Act of 1765? And; will the American people follow Patrick Henry’s stance against it?

  7. Peter says:

    Professor Allen poses an excellent question: “How does Publius deal with the problem of rendering a people suitable to rule in this new and modern context without guaranteeing their wisdom and virtue?” This, it seems to me, is one of the most important and ongoing issues in the life of the nation. Can we, in fact, force people to be wise and virtuous in the name of preserving the construct of the nation? There are those who believe we must – and on both sides of the ideological divide. There are others who believe that people have the right to be wrong, to be stupid, to be unviruous. This is one of those places where, it seems to me, it is often hard to thread the needle of liberty.

  8. Susan Craig says:

    Freedom makes a huge requirement of every human being. With freedom comes responsibility. For the person who is unwilling to grow up, the person who does not want to carry is own weight, this is a frightening prospect.
    Eleanor Roosevelt
    Freedom is the sure possession of those alone who have the courage to defend it.
    Pericles
    Just a few thoughts on the value and price of freedom.

  9. Howdy, it’s Janine. I want to say to Carolyn, Maggie, Susan and Peter.. it’s great to have you guys blogging on our site everyday. Great comments! Thank you! I am learning so much.

  10. Carolyn Attaway says:

    Thank you Janine for putting this site together for all to learn and study our founding documents. I saw your interview on FOX and started with the site on Day 1. I cannot tell you how much I enjoy reading my assignment every night and then getting the opportunity to talk to everyone the next day about what we read. Your guestbloggers have been so informative, and very helpful in understanding what was written. I have learned so much already, and what amazes me most is how timeless our documents are; they could have been very easily written for today!

  11. Barb Zakszewski says:

    This is a Wonderful Website..I just read about it last night in Human Events, Conservative Spotlight, and checked it out. This is JUST what I have been looking for, as I have recently decided to study the REAL constitution. I’ve been reading, of all things, the Politically INcorrect guide to the Constitution and have been reading those parts of the Constitution as I’ve progressed. Your 90/90 project is GREAT!! I know I’m jumping in a little late, but intend to pick up at this point, May 7, and move forward. In order for us to return our Country to the Principles of the Founding Fathers, we have to know what those principles are, and the reasoning behind these principles. The Founders had differing points of view about what direction to take this country, Federalist v Nationalist, and many of the arguements made back then are being repeated now. I agree it is vitally important for our children to be taught the REAL history of the United States, not the Liberal, America is bad history that is being taught now. Thank you, Thank you!! for this wonderful site.

  12. Today was yet another stimulating reading. Your blog comments have been thought provoking as well. I thank you and I, also, once again, thank Professor W.BAllen for his astute interpretation. After reading both Federalist PaperNo8 and Professor Allen’s essay here is what I have gleaned:

    With the birth of the Republic of the United States came the birth of a new type of republic. Republics in the past all eventually lent themselves to the art of war, instead of the art of commerce and free enterprise, as its focus. Our newrepublic would be monitored and governed by the people instead of military figures.

    This was truly an enlightened and inspired experiment.
    Yet, safety would have to be secured in order to offer the opportunity of these pursuits and the art of war delineated. If the people did not feel safe, and if war were to spring from internal hostilities, then the focus would shift away from the remarkable aspects of American ingenuity to the colossal attentions war and/or petty skirmishes demanded.

    To quote Alexander Hamilton:
    “Even the ardent love of liberty will, after a time, give way to its dictates..”

    “To be more safe, they, at length, become willing to run the risk of being less free…”

    If war were to become the dictate then the executive branch would broaden and the legislative branch, the people’s branch, weaken.

    “They would, at the same time, be obliged to strengthen the executive arm of government; in doing which, their constituents would acquire a progressive direction towards monarchy. It is of the nature of war to increase the executive, at the expense of the legislative authority.”

    War was thus incompatible with the new industriousness of the American people:

    “The industrious habits of the people of the present day, absorbed in the pursuits of gain, and devoted to the improvements of agriculture and commerce, are incompatible with the condition of a nation of soldiers, which was the true condition of the people of those republics.”

    Once again our forefathers had the wisdom and wherewithal to prophesy the necessities for a free people to flourish – freedom from dictators, tyranny, war, conquests and internal squirmishes.

    Which begs the next big undertaking: replacing the dictator with the wisdom of the people. If the government were to heed upon the whims of the people then how does one educate and inspire the people? The checks and balances of the Constitution were thus both a check against the leaders and the people – a republic instead of a democracy.

    In this respect how have Americans fared? I would say on the broad scale, remarkably. I believe our forefathers would be mesmerized with the scope of growth, scientifically, industriously and humanitarianly. They would be in astate of awe. The experiment of liberty and union, though bruised along the way, has remained vital.

    Yet, a new generation and movement are upon us. Our founding fathers, I believe, would be a bit wary regarding the modern day wisdom of the people. There was such a hunger for education and inspiration in the blossoming days of the United States because the repression of such liberties had left a formidable and everlasting impression.

    Today, do we take for granted the freedoms that have made our country great? I believe that the lack of voting would be a disappointment to our forefathers, as would the seeming unawareness of the founding principles of our country.

    If we, as citizens, and our children, do not understand the dignified rights and principles we have then we, and our children, will not know when they are subtly taken away from us. The success of the progressive movement is a prime example.

    Thus, the reading and comprehension of the United States Constitution and the Federalist Papers are paramount. I, personally, feel blessed to be having this dialogue with our daily scholars, Cathy and all of you who blog. I thank you for your involvement. Spread the word! Let us all be educated citizens with a knowledge rooted in the thesis of our country so that we may then step forward, voice our opinions and make a difference as informed citizens.

    God Bless!!

    Janine Turner
    5.7.10

  13. Barb, It’s Janine. We are happy that you have joined us!

  14. Ron Meier says:

    It seems that this one quote has impacted more than one of us today: “To be more safe, they at length become willing to run the risk of being less free.” Obviously, what is happening in our country today makes us more sensitive to this quote than we might be if we were not living in the age of the progression of entitlements to the levels we see in the EU, with Greece being an example of what can happen if we allow what is happening in our country to progress to that extreme.

    A second quote that got my attention was this: “The desire to shed the characteristics of the “old world” was very strong in our founders, who were not far removed from living under those types of governments.” Today, we are far removed from those types of governments and many of our brothers and sisters seem to be wanting us to move in the direction that our founders wanted us to move away from. If more of us had a better knowledge of history, or a knowledge at all, and if more of us knew what we few who are going through this exercise are learning, perhaps we would see through the eyes of our founding fathers. Let us pray that, at the conclusion of this 90/90 exercise, we can see through those wise eyes as clearly as they did.

  15. Well said Ron! Thanks for joining our 90 in 90!

  16. Susan Craig says:

    Carolyn, I need to address your application of the Patriot act to the quote “To be more safe, they at length become willing to run the risk of being less free.” That is why every time a limiter is needed for safety we have put ‘sunsets’ into them when enacted. Habeus Corpus was suspended for a while during the Civil War. One of the things that brought down Woodrow Wilson was his abuse of free speech during WW I. FDR is still reviled for the restrictions placed on people of Japanese descent even though it is provable that some were active for the Japanese Empire. He decided that in order to continue to dedicate the needed resources to prosecute WW II he did not have the need resources to investigate individually all those of Japanese descent so he decided to quarantine the probable source of espionage and sabotage. The Patriot act does not give blanket surveillance over American communication but it does remove restrictions on communications between Americans and KNOWN terrorist sources.

  17. Susan Craig says:

    I did not post this yesterday as I did not wish to hunt on that rabbit trail while discussing Federalist 8.

  18. Thank you all for another week of wonderful insights!

    Please encourage the children in your life to sign up online for our We The People 9.17 Contest! We are looking for entries especially in the short film and PSA categories for high school! Middle school and high school students can also enter a cool song or an essay, and the elementary school kids are invited to submit a poem or holiday card. Prizes include $2,000 for the winning high school entries and gift cards and other prizes for the younger kids. More information, including rules and signup form, is available at http://www.constitutingamerica.org

    A recurring theme on these posts and blogs has been our amazement at the foresight, vision and wisdom of our founding fathers. There are times in reading their words that certain sentences seem to leap off the page with relevancy for today. We find this long term vision and wisdom amazing because the elected officials of our generation deal mainly in the here and now. We are an immediate gratification society, and the majority of today’s leaders respond accordingly.

    Wouldn’t it be refreshing to hear our current policy debates discussed in the terms we find in these Federalist Papers, with the spirit of civility and long term vision of our founders? What will the new health care bill mean to us 200 years from now? What impact will the various immigration reform proposals have far into the future? Wouldn’t it be interesting for some of our members of Congress to write a series of articles similar to the Federalist Papers, addressing the consequential issues facing our country today?

    What words from our generation of leaders will resonate 200 years from now? I can’t answer that question, but I do hope and pray that 200 years from now, United States citizens will still be reading and studying the Constitution and the Federalist Papers, and will still be amazed at the foresight and wisdom of our founders.

    Have a great weekend, and wishing you all a very Happy Mother’s Day!

    Cathy Gillespie

  19. Carolyn Attaway says:

    Susan, I appreciate your feedback on the Patriot Act. The point I was trying to make was when the Patriot Act was signed into law, most Americans felt that the safety of their country was more important than the need to restrict our government from possible communications information. I wasn’t trying to define the Patriot Act in everything that it did, just that most people supported it at the time even though some claimed it gave the Federal Government to much freedom into communications and records. Today, there are some who claim that parts of the Act give the government to much authority.

    I believe 16 sections of the Patriot act were set to expire unless Congress decided to extend them. After much debate, Congress passed a bill in March 2006 which renewed the Patriot Act but implemented additional safeguards for civil liberties. 14 of the 16 measures were permanent, but the roving wiretap provision and the FBI access to business records were extended only until 2009. Then in February 2010, Congress passed a one-year extension on three expiring Patriot Act provisions which were:
    –Authorize court-approved roving wiretaps that permit surveillance on multiple phones.
    –Allow court-approved seizure of records and property in anti-terrorism operations.
    –Permit surveillance against a so-called lone wolf, a non-U.S. citizen engaged in terrorism who may not be part of a recognized terrorist group.

  20. Susan Craig says:

    I don’t know how much more civil they were; there are stories of Senators or Representatives going after each other with their walking sticks.

  21. Carolyn Attaway says:

    True, but don’t politicians always balk. I always find it interesting how a politician finds a law or rule wrong when he is in the minority, but a similiar rule when he is in the majority is the right thing to do. (Not all politicians, but quite a lot) I would find it interesting to see which Congressmen voted against the Patriot Act, but are for Net Neutrality.

  22. Susan Craig says:

    I agree Carolyn that that would be a fascinating statistic! General observation would suggest that the number would be high.

  23. Susan Craig says:

    Item three was (I think) not necessarily to go for the lone nutcase but to cover instances of a singular person sent out like a sniper. Snipers function on their own but are part of an overall strategy. All of the others I believe were caveated with a predicating contact with known terrorist or sympathizing entities.

  24. Glenn Roberts says:

    Like Barb Zakszewaki, I read about this site in Human Events. I just completed reading all the blogs made to date. Now I am going to Barnes & Noble in Chattanooga, Tn with a list of books that will help me keep up with this program. Thanks for making this site available and best of luck.

  25. Mary Lou Leddy says:

    I have been following this course of study since the very first day. It is so moving that the Founders were so insightful for the future of this great country. I have also been uplifted by the fact that so many other bloggers have had the same thoughts as I have had . And , of course, the guest bloggers ‘ interpretations have been most helpful to me.

    As I read the Federalists Papers, I am amazed at how pertinent they are to this day and age.

    I thank you all for sharing your thoughts .

  26. Greg Zorbach says:

    @ Carolyn. You are right on the money with this: “The Patriot act does not give blanket surveillance over American communication but it does remove restrictions on communications between Americans and KNOWN terrorist sources.” In fact, most of the rights its critics are complaining about are ones that do not exist – i.e. for non-citizens. Carolyn’s later summary was a very good one. The final point about enabling surveillance against a non-U.S. citizen engaged in terrorism is true about the latest legislation, but it should not be a requirement for non-citizens. However, given the courts’ unprecedented intrusion into this war’s prosecution it is probably necessary.
    Yesterday my fifth-grader grandson noticed this web site up on my laptop and asked me if I was reading the Constitution. He eagerly explained to me that they were studying about the Constitutional Convention. So, he and I got out his Social Studies book and went through it. To my surprise, the book got most of it right, especially the statement that the most important principle underlying the Constitution is individually liberty. My joy was dashed when I came across the following explanation of the First Amendment: “It also says that the government cannot promote or financially support any religion.” And this is at a Catholic academy. However, the textbook is a CA standard one. In my opinion, it would have been better had they just used the simple wording of the amendment: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”
    Found another surprise in his textbook – the last three lines of the second stanza of “America The Beautiful”: “God mend thine every flaw, Confirm thy soul in self-control, Thy liberty in law!”
    Self-control and liberty in law. How pertinent.

  27. Susan Craig says:

    @Carolyn: Our ‘wonderful’ Congress has just removed the “sunset” from the Patriot Act!!! Them’s fighting words.

 

 

Sunday, May 9th, 2010

Federalist Papers 9 and 10, though written by two different authors (Hamilton and Madison, respectively), both address the benefits from large “confederate republics” for internal peace and political stability. Of the two, Federalist 9 is the less momentous, but it raises a number of points that apply as well to other papers that follow.

First, there is the matter of defining terms. Throughout the Federalist, the writers define terms that often are used rather flexibly by others, including “republic” and, here, “Confederate Republic.” Hamilton in Federalist 9 wants to let his readers know precisely what distinctions he is drawing. Hamilton defines a confederate republic as a “convention by which several smaller states agree to become members of a larger one.” While that distinguished such a polity from a monarchy or an aristocratic republic (Rome and Venice), the definition leaves plenty of interpretive room to accommodate different types of confederacies, a discretion Hamilton and the others use to their advantage.

Second, Hamilton responds to the Antifederalist charge of “consolidation,” a frequently-used disparagement at the time that invoked images of a distant, tyrannical, and out-of-touch centralized government and of destruction of state-level authority. (Were they onto something?) Such consolidated government was said to be the opposite of a confederacy. The proposed constitution, Hamilton responds, does not abolish the states, but, rather, makes them a constituent part of the national sovereignty (an issue explored in more detail in future papers) and leaves with them certain exclusive and very important aspects of sovereign power (again, to be examined further in subsequent papers).

Hamilton’s approach accomplishes a couple of important goals and reveals a strategy followed over and over by the writers. For one thing, he ties the new Constitution to the old Articles. That creates the illusion of constancy, important for gaining political acceptance of the new plan. Placing the government under the Constitution (“strong” federalism) on the same continuum as that under the Articles (“weak” federalism) makes the difference between the two just a matter of degree—and an advantageous degree, at that—rather than of kind. This illusion is also important for blurring the revolutionary origins of the Constitution in a process that ignored the constitutional framework under the Articles. For another, emphasizing the confederal nature of the new structure supported the rhetorical coup of the pro-Constitution advocates styling themselves “Federalists,” a much more anodyne and sympathetic term than “Nationalists” or “Consolidationists.” That also, conveniently for the Federalists, deprived the Constitution’s opponents of the moniker most suited to them and left them tagged with the politically unenviable designation of just being “anti” something, and anti “federalism,” at that.

Third, Hamilton helps himself generously to quotations from the Baron de Montesqueiu. The latter’s main work of interest to the Framers, The Spirit of Laws, was cited frequently to support their positions, though not always in the “spirit” in which Montesquieu intended. Unlike the Federalist, Montesquieu saw a rarified interpretation of the English constitutional monarchy as ideal.

More important than the references to Montesqueiu as such is the high level of discourse they represent. Note also Hamilton’s reference to the Lycian confederacy. Discussing political philosophy and comparative constitutional systems is a common device in the Federalist, with frequent citations to other systems, ancient and modern. While these citations and the authors’ interpretations often were editorialized to prove a point (the Federalist was persuasive advocacy, not dispassionate analysis), the casual use of them meant that the authors and the audience had a common frame of reference.

The level of discourse evidenced by the Federalist is remarkable. Granted that the writings may not have targeted  the day laborer, the audience was nevertheless a wide segment of society. After all, these papers were not just notes on an internal debate. They were disseminated to a rather literate American public well beyond the participants in the New York and Virginia ratifying conventions. There was a broad level of understanding of the classic “liberal arts” among the middle and upper classes that made such discourse possible. True, Hamilton attended King’s College (Columbia University), but would the typical graduate of Columbia today be as well-grounded in Western civilization and thought (in contrast to identity group “victims studies”) as Hamilton and his audience? Is one likely to hear such discourse in the halls of Congress or in the media today? If not, does that say anything about our fitness for republican government?

That brings up a theme to be discussed further in connection with Federalist 10, the idea of “republicanism.” Republicanism animated Americans’ self-identity. Start with the name of just the writers of the Federalist, “Publius.” The man of the “people” (not of “states” or “interests”). It comes from Publius Valerius Publicola, a legendary statesman and general of the Roman Republic’s founding. Why write under a pseudonym? There was a legal reason in the history of the English law of publications of criminal libel, but by 1787 it was just a fashion—but one carefully selected. Opponents of the Constitution, too, chose their names with care, and the same person might change names to fit the occasion. Thus, in 1793, in defending President Washington’s Neutrality Proclamation, Hamilton wrote under the pseudonym “Pacificus” (the “peaceful one”). Most of their pseudonyms, from Publius to Cato to Agricola to Brutus to Cincinnatus, were taken from Roman Republican history. The Framers—and Americans generally—were fascinated, nay, obsessed, with the Roman Republic. They saw themselves as heirs to the Roman tradition of classical republican virtue, in their civically-involved citizenry, the militia basis for political participation, the need for inculcation of shared political values, and (for some, e.g., Jefferson and Patrick Henry) the repository of civic virtue in a broad class of yeoman farmers and artisans.

But, as Hamilton shows, the Framers were also keenly aware of the fragility of many republics. Hamilton sees the means of saving the American republic through its size and through the use of a representative system. Madison picks up that theme in Federalist 10.

An expert on constitutional law, Prof. 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.  Read more from Professor Knipprath at: http://www.tokenconservative.com/ .

29 Responses to “May 102010 – Federalist No9 – The Union as a Safeguard Against Domestic Faction and Insurrection, for the Indpendent Journal (Hamilton) – Guest Blogger: Joerg Knipprath, Professor of Law at Southwestern Law School”

  1. Susan Craig says:

    Thank you Professor Knipprath for your discussion on this paper. Like you I was struck by a portion of the Montesquieu quotation. That being; “As this government is composed of small republics, it enjoys the internal happiness of each; and with respect to its external situation, it is possessed, by means of the association, of all the advantages of large monarchies.”
    The following argument in support of the Constitution leapt out at me. “The proposed Constitution, so far from implying an abolition of the State governments, makes them constituent parts of the national sovereignty, by allowing them a direct representation in the Senate, and leaves in their possession certain exclusive and very important portions of sovereign power. This fully corresponds, in every rational import of the terms, with the idea of a federal government.” It shows me how important it was that the corporate entity known as States be treated as deserving of representation as a whole and separate from individual citizen representation.

  2. Maggie says:

    Fabulous write up and interpretation. I now have a much better understanding of this paper and the mindset within which is was composed.

    @ Susan….the same second quote leapt out at me. It showed me how important it is that the Federal Government not overstep the individual States’ rights. We are, afterall, a Confederate Republic…not a consolidation.

  3. Susan Craig says:

    This paper reinforced my belief that the 17th amendment was a serious mistake and disenfranchised the individual States! This being said a repeal of this amendment would be a good step towards correcting what has gone amiss.

  4. Kay says:

    Prof. Knipprath also helped my understanding of Hamilton’s reasoning. The Founders undertook their task of formulating the Constitution by looking back and looking forward, what worked in the past, what governments had deficiences, what could conceivably work to provide the States, as part of the whole, for “peace and liberty” as opposed to “domestic faction and insurrection.” Our Congress has no sense of the past, except perhaps FDR’s New Deal, which seems to be the best thing since sliced bread, and Congress has just expanded, and expanded, on that with the out-of-control control of the Health Care Reform Bill. I hope those arising to run for public office are educating themselves on the reasoning behind the Constitution, and applying those lessons (which are timeless) to situations facing us today.
    Every candidate should be asked, “When was the last time you read the Constitution? Are you familiar enough with it to judge every piece of legislation by its provisions?” I have already been asking this question of candidates, and unfortunately, the answers are no to nebulous.
    Now I look forward to reading Madison in the next paper and the commentary. Your posted comments enlighten my understanding of every paper with thoughts I never would have drawn from the reading.

  5. Carolyn Attaway says:

    Prof. Knipprath, I thoroughly enjoyed your explanation of Federalist Paper #9. With your write up, I was able to breakdown the paper into several main components, and concentrate on the main theme of each.

    As with Susan and Maggie, I too picked up on Hamilton’s reiteration of the difference between a Confederate Republic consisting of constituent parts and that of a Republic with consolidated states. Earlier on this web-site, while discussing amendments, I mentioned that number 17 needed to be repealed because in its current status, it diminishes the States representation in the U.S. Senate. I believe this paper strengthens the argument that the U.S. Senator should be appointed to the Senate to represent the States best interest and not the voters.

    For example, when the heath care reform bill was being debated in the Senate, many State Governors requested that their U.S. Senators vote against the bill because of the damage the cost would do to their state. Instead, many U.S. Senators were more concerned with party loyalty and re-election bids; they voted against their states best interest. Now, many States are creating legislation to ward off the damage their Senators help create.

    Another section that caught my eye was ‘The Science of Politics’. This is not the first time that I noticed the concentrated effort to stress the importance of power into distinct departments. The statement ‘the introduction of legislative balances and checks; the institution of courts composed of judges holding their offices during good behavior; the representation of the people in the legislature by deputies of their own election: these are wholly new discoveries, or have made their principal progress towards perfection in modern times. They are means, and powerful means, by which the excellences of republican government may be retained and its imperfections lessened or avoided.’

    I find it humorous that Hamilton says that this legislative balance was not known or was imperfectly known to the ancients. If that is the case, I can’t help but wonder if we evolved 360 degrees and are now experiencing a generation that does not realize the importance of balanced powers within the Federal Government. And, if that is why we yet again find ourselves comparing our current troubles to that of Greece.

    One last thing that caught my attention, the word Framer. Until this time, I was concentrating on the word founder, but Prof. Knipprath used the word framer when describing our founding fathers. This word adds a new dimension for me when reading these documents. Now I can see these documents as a framework that is composed of many parts that are to be fitted and joined together to support our founding. A foundation is much stronger when it has a framework to support it.

  6. Richard Heck says:

    I appreciate Prof Knipprath’s words however he needs to write more in laymans terms. I had a hard time reading, understanding and following his article, I cannot imagine what my teenagers are going to say about todays blog.

  7. Margaret Wilkin says:

    Prof. Knipprath also helped my understanding of Hamilton’s reasoning. Liberty can only exist when we have a balance power. The Founders had this amazing foresight of what the future could become. They did this by their understanding of history of other governments and the great philosophers of the day.
    It strike me that we the citizens of the United State have to take a test to drive a car , to become a lawyer, get all sort of degrees, but the people that hold our liberty and that are sworn to uphold the constitution do not have to do anything to prove they understand the constitution. Just a thought .

  8. Susan Craig says:

    I’ll get the apology out of the first. Richard I truly do not mean to pick on you but your comment gives example as to why we need to take education away from the government. Where we presume that the ability to ascertain a meaning by context or dictionary has been lost or is not important.

  9. Andy Sparks says:

    I think it is important to distinguish the context in which Hamilton is writing. He is trying to persuade those that would vote against ratifying the Constitution to support it. Thus, he is emphasizing to the reader that the states will be sovereign in some capacities as defined by the Constitution. However, both he and Madison (at this time) saw the inherent weakness of the federal government compared to the states under the anemic AOC. Madison even proposed in the Convention a ‘negative’ against all state laws for the federal government, and nobody was for a more centralized government than Hamilton, as history bears out after ratification. During the writings of these essays then, one should read them understanding that at this time, all three writers, while assuaging those moderate anti-federalists concerned about the powers of their states, wanted a vastly more energetic national government.

  10. Chuck Plano, Tx says:

    Mabye Constituting America could index all of the guest bloggers blog on each Federalist Paper so they would be avaliable for future reference.

  11. Carolyn Merritt says:

    I agree with Chuck Plano on indexing all of our guest bloggers. I have not blogged in the last several days, but trust me, I’ve been studying and reading all of the blogs by the fantastic guest bloggers. Thank you Prof. Knipprath for clarifying what Hamilton was saying in Federalist #9.

  12. I have read and reread the 17th Admend.and compared it to the original arrangement,I must say I can not see an advantage to repealing the 17th.I understand there is Party pressure but I don’t see this as reason to take the vote from the people.Special interests and Party pressure is a difficulty,but in this day, where incumbents are sweating the results of the awakening people ( long long over due) I see this as perhaps the intentions , the spirit of the passage of it. Please if anyone can show more light revealing my error I am open .

  13. Howdy from Texas. I want to thank you for joining us today and I thank Professor Knippratch for his most insightful essay today!!! Thank you, Professor Knippratch.

    I am in the middle of tornados whirling through

    our ranch so I have to make this brief. I am once again amazed and inspired by the intellectual tenacity of our forefathers. It is my hope, through our foundation, that we may encourage our youth to read, read, read.

    History truly is the key to our future.

    My favorite passage of Federalist No9 is:

    The regular distribution of power into distinct

    departments; the introduction of legislative balances

    and checks; the institution of courts composed of

    judges, holding their offices during good behaviour;

    the representation of the people in the legislature, by

    deputies of their own election; these are either

    wholly new discoveries, or have made their principle

    progress towards perfection in modern times

    “..or have made their principle progress towards perfection in modern times.”

    This line captures my attention. Through out history many empires and republics had been formed but became lost in the mire of war, conquests or tyranny, as mentioned in earlier essays. Now, according to Alexander Hamilton, The United States Constitution, by analyzing the annals of history and recalculating and reinventing the basis of former Republics, offered “progress towards perfection in modern times.”

    Our forefathers, guided by the hand of Divine Providence, etched onto the new sphere of political science a masterpiece, a stroke of genius that would be embraced and cherished by Americans and emulated throughout the world – even today.

    How sad it is that we Americans have such little time to devote to the revolutionary and relevant thesis of our country; that we have forgotten to cherish such a gem. We, as a modern society, have forsaken our great founding principles, as a kitten is forsaken on the side of the road.

    It is Cathy’s and my goal to reach out to the schools across America and by this September 17th have 20 minute DVDs (or downloads) available of the winners of our contest – hip, cool and contemporary – discussing the United States Constitution in all her glory.

    Then when a 7th grader gets in your car, he or she won’t say, “What’s the Constitution?”

    And we, as parents, as adults, as citizens, through our “90 in 90 = 180,” will be re-stimulated, re-educated and fortified to take on whoever wants to challenge, defy or ridicule the validity of the United States Constitution. We will be ready to teach our children, our families, or our friends about the “perfection of modern times.”

    God Bless,

    Janine Turner

    May 102010

  14. Thank you Professor Knipprath for yet another enlightening essay!

    I would like to take a moment to recommend a book that I have found useful, and that you all may too:

    How to Read the Federalist Papers, by Anthony A. Peacock. This book may be purchased at the Heritage Foundation bookstore: http://astore.amazon.com/heritagefoundationbookstore-20/detail/0891951350 It is only about 100 pages, and full of great information!

    In Federalist 1, A General Introduction, Hamilton asserted that a wrong decision on this “important question” of whether or not to ratify the United States Constitution, would “deserve to be considered as the general misfortune of mankind.”

    Federalist 9 reminds us of the grand experiment that America was and is. History was littered with failed Republics. Another failure could forever doom future attempts at governing within the framework of a Republic. Success, however, could inspire similar governments around the world, liberating mankind. The stakes were high, and the founders recognized their place in history.

    This was America’s chance to prove that a Republican form of government could work – that political science had progressed, and refinements had been made including, as Hamilton lists:

    “The regular distribution of power into distinct departments; the introduction of legislative balances and checks; the institution of courts composed of judges holding their offices during good behavior; the representation of the people in the legislature by deputies of their own election,” and ”the ENLARGEMENT of the ORBIT within which such systems are to revolve.”

    I love how Hamilton takes on the arguments of his opposition, and further quotes, paraphrases, and explores Montesquieu to make his points, ending with an explanation of the importance of the State governments within the framework of the proposed Constitution, and their “exclusive and very important portions of sovereign power.”

    Thomas Jefferson called the Federalist, “The best commentary on the principles of government, which ever was written.” Federalist 9 certainly lives up to this high praise.

    Looking forward to Federalist 10!

    Cathy Gillespie

  15. Roger Jett says:

    Lynne Newcomer. Without the 17th Admendment there would not have been the “Miracle in Massachusetts” back in January. It would not have truly been the people of Massachusetts’ seat to fill, but would have belonged to the party machine. With the passage of this admendment we drew closer to Lincoln’s desciption of a “government of, for and by the people.”

  16. Susan Craig says:

    Roger Jett, while the “miracle” would have been a little more unlikely it might not have been necessary. The Senators were never to be direct representatives of the individual citizens. They were to represent the people as a corporate group overall as a State. They were sort of like in a large company where the union is the like the House of representatives. A Senator would be like the different Department heads representing the interests of their respective Departments (each department management selects the person to represent the needs and wants specific to the department as a whole). No longer do the specific States have a representative the looks to the overall of the State specifically because they no longer are selected at the State level while it is warm and fuzzy to have direct say in essence you did have a say by the selection of State Senators and Representatives. Also, if Massachusetts had not changed their law to preempt the possibility of a Republican Governor appointing the replacement for John Kerry should he have won the Presidency the ‘miracle’ would not have happened at all.

  17. Carolyn Attaway says:

    As excited as I was for the election of Scott Brown to the U.S. Senate; it was more for the ability to stop the majority’s agenda than his ideology. I believe this election came about because of over 100 years of misuse of the Senate Body. With the ratification of the 17th Amendment, party loyalty usurped State representation in the U.S. Senate. Senators could be elected over and over again by a majority of voters, thus dominating the seat and the ideals of the voters that elected him.

    The voters are represented in the House of Representatives, if they control the Senate as well, I believe this distorts the voters power, and those in the minority are overruled in every stance. If the Senate only reported directly to the State, the bullying factor from the party and the Administration would be diminished, thus giving the State a voice in the Federal gov’t. The State as a whole is a greater entity and has more strength in dealing with legislation that could hurt it’s citizens than the individual voter.

    I believe a lot of the ills States currently have to deal with are a direct result of Senators putting their party loyalty ahead of the State’s best interest. For example, many Governors are telling their Senators to kill Cap and Trade, but who are their Senators really listening to?

  18. @Roger Jett, I agree with you.I see more opportunity for corruption with appointments.The people are smart enough to bear the consequences,because we have the vote .Thanks for your input.

  19. Chuck Plano, Tx says:

    In regards to the 17th amendment if we returned with the repeal of the 17th the states would regain a large degree of control of the Federal System. It is much easier to change and or control the State Legislatures than it is the Federal Legislature. No longer would there be “money” involved in Senate elections and the beholding of Senators to special interest groups because of their campain contributions. Currently Senators spend on average over $10,000,000.00 dollars to get elected, where do they raise that money? Senators would have to answer to their state legislature for their votes such as the receint health care bill that will ultimately cost the states billions.

  20. Susan Craig says:

    Lynne, yes the opportunity is there. However, now the corruption is not so confined to the State Government level. Prior to the 17th amendment Senators were not vulnerable to the circumstances that led to and have been exacerbated by Campaign Finance Reform! If you didn’t like the Senators your state’s Governor, State Senators and State Representatives selected to represent the State as a whole; they are easier to reach, influence and/or change.

  21. Paul S. Gillespie says:

    Regarding 17th Amend., Lynn and Roger: Party loyalty as an encumbrance to the fidelity of a Senator to his State is a reality. Couple that with the unmitigated influence of campaign contributions, the majority of which does not originated within that State, and the result is a Senator with too many obligations to effectively represent this State, much less the people electing him.

  22. Roger Jett says:

    Valid points have been presented in opposition to the 17th Admendment and I concede that in theory state governments suffered a level of disenfranchisement as a result of it’s ratification. Framers of the Constitution recognized that Article 1, section 3 in granting constituency to the state legislatures instead of the populace in regards to the Senate, greatly increased the likelihood that those same state legislatures would ratify it. Beyond that there were substantial differences of opinion on constituency issues that drifted to the extreme in both directions.
    I believe that neither Article 1, section 3, nor the 17th Admendment perfectly address the numerous difficulties that we have faced with regard to the selection of Senators. Historically, the “realities of human nature” afflicted those serving in state legislatures during the first 125 years when they were the constituents, since factionalism does not discriminate and all are vulnerable. In the beginning, not all states elected their senators the same way. Intimidation and bribery occured at times. I saw noted that between 1866 and 1906 that nine bribery cases were brought before the Senate. On numerous occasions contentions arose that prevented state legislatures from electing new senators. At one point Delaware went four years without a seated U.S. Senator.
    As the point was well made in posts by others, even under the 17th Admendment there are times when vacancies are temporarily filled by state govenors. I ask that each of us compare and contrast the appointment of Roland Burris to the Senate seat for Illinois versus, the special election of Scott Brown to the Massachusetts vacancy. So far, I’ve not seen what I considered to be “unmitigated influence” steming from outside conservative campaign contributors to Senator Brown. He seems fairly focused on listening to and serving his Massachusetts constituency…. the people.

  23. Susan Craig says:

    The purpose of the bicameral legislature was that in one house representation would be by population (3 guesses and the last 2 and 3/4 don’t count) and the other would be where all constituent states would be equal (same offer) that way New York could not bully Wyoming on issues of sectional importance.

  24. Tina Bogani says:

    This is my first blog. FP #9 and #10 are my favorites. I always find myself reading the papers in the context of current events. One of the quotes that struck me was, “…we shall be driven to the alternative either of taking refuge at once in the arms of monarchy, or of splitting ourselves into an infinity of little, jealous, clashing, tumultuous commonwealths, the wretched nurseries of unceasing discord and the miserable objects of universal pity or contempt.” For me, this sounds like a description of “diversity” and how one group should be treated “more fairly” than another (ie, “empathy in judging”).

    I’m sorry to say, even after reading the arguments regarding the representation of the States interests in the Senate, how would it be different than what we have now? Wouldn’t the representatives of the States appointing the Senators be appointed by the People of the State in the first place? Sorry to be dense – can someone explain one more time how it should have worked and how it works now?…

  25. Susan Craig says:

    I’ll try and take a shot at it. Think of the nation as say a large conglomerate company. where there are scads of workers in many different subsidiaries. Say one subsidiary has mainly teamsters, another iron workers, another service, they elect someone to represent them and their concerns to the conglomerate board this would be like the house of representatives. Previously the Senate would have be made up of people who were selected out of the various subsidiaries to represent the overall concerns of the subsidiary say steel framing another subsidiary would say be agricultural services these would be selected by management and workers combined with final say being who the head judges to be best able to represent the subsidiary as a whole. As the Senators are now selected it is a beauty contest voted on by every one and concern no longer is to the corporate body but to the various constituencies.

  26. Roger Jett says:

    Tina Bogani. I may not be of much help in answering your question, but please let me try. It is a very good and appropriate question. Originally, under the Constitution (Article 1, section 3) U.S. Senators were elected by the state legislatures of their respective states. Under that arrangement the state legislature was the Senator’s constituent (the people he answered to and was responsible to represent the best interest of). By the early 1900′s there was sufficient disatisfaction within the nation to change that original arrangement and the legislative branch of the federal government proposed to the states the 17th Admendment for ratification. There were 37 states out of what was then 48 states in total (in 1913) that ratified this admendment into law. Under this new arrangement Senators were now to be elected directly by individual voters within each state and the individual citizens now were the Senator’s new constituency. That’s the quick and easy answer and I think it’s factual . Which arrangement is best involves a number of competing opinions as I think you’ve seen already in the ongoing debate. It sounds wishy washy of me, but I really think there truly are some pretty good arguments on each side.

  27. Kellie says:

    @Roger Jett: Thank you for your explanation, because the 17th Amendment and the story behind it was confusing me. I wonder, could this amendment contribute to the “lifetime” US senators we now have holding office today? Would it have been different if the senators were determined by the state legislatures, which are more diverse. My guess is that the terms of these senators would be shorter and we’d have more of a voice in government.

  28. Roger Jett says:

    Kellie, I’m not sure I would agree that state legislatures are more diverse than the general population. Like it or not our political system is now and has pretty much always been a two party system at both the national level and the state level. Amongst the people there is enormous diversity, but within each party I believe that many of the minorities go pretty much unrepresented at the state legislature level. States have a tendency to lean to one party, even when they have a substantial number of voters who profess to be unafilliated and independent minded. The explanation of why we have so many “lifetime U.S. Senators” probably requires a better understanding of human nature than I currently have. My quess would be that Senators as a rule have been successful at convincing us that we have a voice with them (not been true lately though… has it?).

  29. Are you kidding me? I’m not certain I can put myself behind what you have said. But I will surely be back to find out more soon.

 

Guest Essayist: Joerg Knipprath, Professor of Law at Southwestern Law School

Federalist 10 is a masterpiece of political theory and insight into human psychology. Almost every sentence is worth studying. The central theme, “republicanism,” carries over from its predecessor. At the core of classic republicanism, going back to the ancient Greek and Roman writers, lies “virtue.” Aristotle, Polybius, and Cicero, among others, saw an essential connection between personal (private) virtue and civic (public) virtue. This was, for most Americans, especially those drawn from Calvinist stock, one of those self-evident truths. An interesting statement of the preconditions for virtue is in the great Northwest Ordinance of 1787: “Religion, morality, and knowledge, being necessary to good government and the happiness [in the Greek sense of personal flourishing as a human being] of mankind, schools and the means of education shall forever be encouraged.,” sentiments expressed almost identically by George Washington in his remarkable farewell address.

Writers on ideal republican systems that emphasized virtue were not faced with the task of constituting an actual working government. One of the asserted practical defects of republics and, worse, democracies, has been their political turbulence. Ever since Plato, Western political theory has emphasized the very practical need that government first and foremost ensure political stability. To that end, every political system must have a symbol or ideal around which to rally, something or someone that can bridge the inevitable tensions that arise among competing personal interests. In the English constitution, that symbol was the crown, and American writers in the 1780s worried about what the absence of a king might mean for the long-term stability of the United States. The political and economic turmoil that was endemic in many of the states was less than reassuring. In the United States, that common ideal was the promotion of republican virtue. Today, some would say, it is the Constitution.

The self-interested part of human nature was called the spirit of party or, more commonly, “faction.” Its effect is to undermine republican virtue, which demands sacrifice of the self or the group for the benefit of the whole. Faction is the anti-matter of classic republicanism The history of the early American republic, including Jefferson’s inauguration speech in 1801, almost wholly revolves around coming to terms with the reality of faction in a system that claimed to rest on republican virtue. Today, politicians still often appeal to bi- or non-partisanship as a republican value and libel their critics’ opposition as un-American selfishness. Truth be told, people love partisanship and engage in full-throated defense of their interests, and politicians quickly change their tune when their own oxen are gored.

Madison shrewdly exploits that. He writes that there are two ways to deal with faction: Address its causes or its effects. The first is impossible, as it would necessitate addressing the root cause of faction, fallen human nature. That is totalitarian, in that it requires remaking human nature by equalizing personal talents and possessions. Such a cure would be a destruction of liberty worse than the disease. Moreover, it actually would go against the duty of government to protect the natural inequalities of persons. We may all be created equal in the eyes of God or enjoy metaphysical equality, but we are not in fact all created equal in talent. Human society will always reflect inequalities in talent and differences of opinion, and we need to deal with the realities of human nature, not with pie-in-the-sky proposals to remake humans. Is anyone in D.C. listening?

He proposes instead to deal with the effects of faction. He sets out the danger of democratic systems, such as ancient Athens, where the ability of people to communicate with each other within a homogeneous and geographically confined polity allows permanent majority factions to appear that oppress minorities. Those endangered minorities are political and religious dissenters and the propertied classes. In fact, he singles out taxation as a tool particularly susceptible of abuse against them. Does this sound familiar at all? The opposite danger could also appear, in oligarchies, where a permanent minority faction might oppress the majority. The key, then, is to prevent both of these permanent conditions. Like Plato and Aristotle, among others, Madison sees both oligarchy and democracy as corrupt political forms. Like many of them, he proposes something he calls a “republic.”

The danger of oligarchy is mitigated by the republican principle of the vote. Easy enough. More difficult is the danger of unadulterated democracy. It is worthwhile to re-read his mellifluous and powerfully concise indictment of such a system in the paragraph that begins, “From this view of the subject….” The control, though not cure, for that ill is the element of deliberation introduced through the republican principle of representation. By itself that is still not enough, as small republics suffer from similar defects as democracies. The second crucial element to forestall oppressive permanent majorities is the large size of the American republic with its large and diverse citizenry. That lessens the dangers of popular passions easily communicated and organized to oppress the minority.

Madison cleverly turns the arguments of his opponents against them. Among Antifederalists, it was almost an article of political faith that a government for a large dominion inevitably becomes oppressive. Not content merely to defend the Constitution and the increased power of the national government against charges that the new system threatens liberty, Madison goes on rhetorical offensive against the political instability found in states with which his contemporaries were all too familiar. In a hard-hitting paragraph near the end (“The influence of factious leaders….”), he argues that the central government is less dangerous than states or localities. It is noteworthy what he perceives to be the bad results from too much democracy: “[A] rage for paper money, for an abolition of debts, for an equal division of property, or for any other improper or wicked project….”

Ingenious as his control of faction is by embracing its reality while blunting its worst manifestations (an issue to which he returns in Federalist 51), is he still right today? Certainly there are big variations in dominant popular political opinions between states or even within states. Though the contrast is becoming paler, there still is greater political homogeneity within particular localities than among Americans as a whole. On the flip side, mass communication and personal mobility, along with a weakening of intermediary institutions, make even our national system much more like the participatory or plebiscitary democracies about which Madison warned. Moreover, the central government, through means to be addressed in future papers, has taken on some of the very characteristics the Antifederalists feared. If that is the case, isn’t local control (and the ability to vote with one’s feet) more conducive to personal liberty than top-down central government from which there is no escape?

Monday, May 10th, 2010

An expert on constitutional law, Prof. 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.  Read more from Professor Knipprath at: http://www.tokenconservative.com/ .

20 Responses to “May 11, 2010 – Federalist No. 10 – The Same Subject Continued: The Union as a Safeguard Against Domestic Faction and Insurrection, From the New York Packet (Madison) – Guest Blogger: Joerg Knipprath, Professor of Law at Southwestern Law School”

  1. Susan Craig says:

    Wow! In my note taking for this paper, I found it hard not just to copy the whole thing! But the portions that hit the hardest were: “On the other hand, the effect may be inverted. Men of factious tempers, of local prejudices, or of sinister designs, may, by intrigue, by corruption, or by other means, first obtain the suffrages, and then betray the interests, of the people. The question resulting is, whether small or extensive republics are more favorable to the election of proper guardians of the public weal; and it is clearly decided in favor of the latter by two obvious considerations:”

    AND

    “The federal Constitution forms a happy combination in this respect; the great and aggregate interests being referred to the national, the local and particular to the State legislatures.”

  2. Maggie says:

    Excellent interpretation! You have clearly explained the very “soul” of this paper….I really have nothing to add. Thank you again for your time and willingness to help all of us learn more about our founding and the great men who were inspired to give us our Republic. Now let’s hope that it’s not too late to keep it.

  3. Carolyn Attaway says:

    I wish we could have had this Federalist Paper assignment over a weekend; there was so much in it that my thought process was constantly racing from one end of the spectrum to the other. I had to read this paper several times in order to take in all the ideas of information.

    For me, the main theme in this paper was the statement “There are two methods of curing the mischiefs of faction: the one, by removing its causes; the other, by controlling its effects.”

    Prof. Knipprath goes in great detail explaining the methods of removing factions, and the example he used regarding the differences in human talent spoke to me best.

    For years, I have told my children that everyone should be guaranteed an equal opportunity in life, but no one is guaranteed equal outcome. There are too many factors is life to make equal outcome impossible, no matter what any politician tells you. The factors that direct a person’s life are limitless and cannot be controlled.

    The following statement by Prof. Knipprath hit the nail on head as to why I believe many societies fail: ‘We may all be created equal in the eyes of God or enjoy metaphysical equality, but we are not in fact all created equal in talent. Human society will always reflect inequalities in talent and differences of opinion, and we need to deal with the realities of human nature, not with pie-in-the-sky proposals to remake humans.’

    I have heard it said that if you take all the wealth in the country and evenly distribute it among that country’s citizens, within a generation or two, the majority of the wealth will be back to its original distribution. Why? Because the spirit of the entrepreneur will always rise to the surface to better the situation around him. That spirit is always dissatisfied with the status quo.

    Sadly, many in our government believe in equal outcome, and have convinced a large portion of our country that this process is not only doable but sustainable. Both I believe to be false statements, and a major cause of faction in our country today.

    My humor statement of the day in this paper, “Enlightened statesmen will not always be at the helm”. Oh, if only I had time to debate this!

  4. Carol Frenier says:

    In the 1970s I taught American History in high school. I remember that Federal #10 was viewed as one of the cornerstones of the Federalist papers in the eyes of many historians, but it took me 65 years of living to see why. Quite simply #10 explains in the most realistic terms how people relate to their government: they form factions to get what they want.

    Madison’s definition of factions and its causes, plus his conclusion that removing the causes would essentially destroy liberty, are intriguing. But even more interesting to me is this passage which sums up the whole situation.

    “The diversity in the faculties of men, from which the rights of property originate, is…an insuperable obstacle to a uniformity of interests. The protection of these faculties is the first object of government. From the protection of different and unequal faculties of acquiring property, the possession of different degrees and kinds of property immediately results; and from the influence of these on sentiments and views of respective proprietors ensures a division of the society into different interests and parties.”

    The idea that it is the duty of government to protect the inherently different capacities in people is well worth pondering. Liberals and conservatives would probably react to this very differently. Many liberals might grudgingly concede that inherent differences are a reality, but they might also find it appalling—something for Progressives to alter via government action. Conservatives would more likely find it appalling that liberals would think this reality is something that could be changed, sort of like defying gravity. They would likely support the protection of such differences as the ground upon which people thrive and create.

    Wanting people to be free to use their inherent capacities (and wanting to protect the fruits of their labor) is not the same thing as being indifferent to the suffering of those in need, but it is often interpreted that way. The distinction between these two ideas is important for conservatives to get across to the electorate in November. We are, it seems to me, at a crossroads between reaffirming the protection of liberty as the bedrock of our political tradition or moving toward a nanny state in which differences of ability—and the creativity that results from those differences—are minimized and group identity and grievances are emphasized.

    As we debate these two political courses—often rancorously—we are ourselves caught up in factions. Can we calm the debate and minimize our different views by focusing on the values and principles that we all do agree on? How, for example, is the best way to integrate the ideas of liberty and fairness? Or liberty and compassion? What specific policies would contain good compromises between these competing passions and interests?

  5. Susan Craig says:

    What I am trying to figure out is the inclination of utopians is that they can legislate a change in human nature. It strikes me as absurd as trying to legislate gravity out of existence because I don’t want the pain caused when I fall down.

  6. Roger Jett says:

    In “Federalist Paper 10″, Madison lifts the veil to reveal what fearful impact “the reality of faction” has on any system were liberty receives value. Liberty requires breath, but Madison points out succinctly that the same air that gives us breath fuels the fire of factionalism. Professor Knipprath has been succinct also as he has expounded insightfully upon the issues raised. Madison in this writing, loaded the bases for our team and you sir have drilled it out of the park. I wonder to if “anyone in D.C. is listening?”.

  7. Kay says:

    This Paper #10 was by far the most exciting, probably because I see so much happening today mirrored in Madison’s reasoning. What were the particular factions existing in the time of the Constitution, and which Madison may have had in mind?
    “Liberty is to faction, what air is to fire,” seems to say there will always be issues of passionate viewpoint. Republican virtue would hopefully rise to the top if, a big if, office holders possess virtue. For those whose mantra is equality in every way, didn’t they ever tell their children that sometimes life is not fair? Also, what came to mind after reading: “But the most common and durable source of factions has been the various and unequal distribution of property,” was the parable Christ told about the talents and how some capitalized on their talent, and how one of them did nothing with it. To me, that exemplifies human nature and spirit…how they move and work in their own domains. Governments can try to “equalize” everyone and our possessions, but as in the Soviet’s days, a greyness, dampness will occur over the people.
    Thank you again for the Professor Knipprath’s commentary and all the bloggers, who are adding day by day to my meager understanding!

  8. Maggie says:

    @ Kay….you said it perfectly when you stated “To me, that exemplifies human nature and spirit…how they move and work in their own domains.” It makes me think of “No Child Left Behind”. We educate all of our children in this country, but not all people have the same capacity for learning. We now spend more time trying to prop up those people who, sometimes, just aren’t going to get it while neglecting those who could be our future leaders. The brilliant minds of our youth are being held back to the lowest common denominator in the classroom. Sure, I think that those that are falling behind may benefit from extra help but not to the detriment of the rest of the class. The same goes for the business world. We can’t expect EVERYONE to be a great success…..we don’t all have what it takes. Trying to change that is a waste of time, effort and expenditures.

  9. Ron Meier says:

    This struck me most: “When a majority is included in a faction, the form of popular government, on the other hand, enables it to sacrifice to its ruling passion or interest both the public good and the rights of other citizens. We well know that neither moral nor religious motives can be relied on as an adequate control.”

    This is what happens when one party controls both houses of Congress and the Presidency, which is what we have in 2010. The faction includes the executive and legislative branches, which are controlled by one party. In spite of the opposition of the majority of citizens, the majority faction controlling two branches of government was able to pass the health care law, which was based solely on ideological passion and not on what was best for the public good.

  10. Andy Sparks says:

    Professor Knipprath, thank you for the excellent essay on the Federalist 10 written by the foremost political mind of the founding generation. I find it interesting and appropriate that you reference the passage from the NW Ordinance (which was devised by the government under the Articles by the way) and relate it to George Washington’s farewell address. Realization of the comparison is evident given that James Madison initially wrote and Alexander Hamilton revised Washington’s farewell address. While the two primary authors of the Federalist essays eventually diverged on how government should be run under the Constitution, they are remarkably consistent on the reasons necessitating the Constitution at its inception.

  11. Susan Craig says:

    From readings I’m doing it appears that the Articles weren’t all that ineffective. Where it ran into difficulty was in the unanimous requirement for amendment and raising of revenue. I would like to know the reasoning behind Rhode Island’s obstructionist votes during this period. Each time amendments were brought forward under the Articles of Confederation Rhode Island was the lone state not to ratify and as there was a unanimous requirement they all went down to defeat.

  12. Susan Craig says:

    They also were the lone State to initially not send delegates to the Constitutional Convention.

  13. Quillhill says:

    Is the recent and current path of our federal government proving the Anti-Federalists correct?

  14. As usual, the quality of the comments is so impressive. A “thank you” also for the gracious responses to the blog post.
    Federalist 10 is in the top handful of the papers in insight and importance. It combines political theory with a clear-eyed view of political reality and how institutions work, as historical experience tells those who only have the will to listen.
    I was intrigued by s.th. Susan wrote, a point that probably will come up again in future discussions. Adoption of the Constitution was probably not as essential at that time as Publius makes it out to be. The main drawback of the Articles was, indeed, the difficulty of amendment. There were serious efforts to amend the Articles at least into 1786, and discussions even into 1787. The earlier efforts focused on getting Congress some independent revenue-raising power, at least as to import duties (s.th. that the King had had under his sovereign prerogative for a long time). Some focused on getting some kind of military power to force recalcitrant states to pay their obligations. Later efforts focused on finance, as well, but just as significantly, on a power to regulate foreign and interstate commerce. That would have superseded the Congress’s limited ability under the Articles only to arbitrate commercial disputes upon demand by the states.
    As to “Rogue’s Island,” as it was often known, there are two broad explanations, one high-toned, the other not so much. R.I. had a long democratic (for the time) tradition, with a royal charter that basically remained the state’s constitution into the 1840s (when a mildly violent “civil war” addressed the desire for reform) and protected civil liberties and voting rights. The state distrusted the federal government as an invitation to tyranny, exactly the kind of concern Fed 10 tries to assuage.
    The less honorable interpretation is that R.I. was a strong “debtor” state that had engaged in all kinds of chicanery regarding its public and private debts. Moreover, it was a state that had acquired quite a reputation for sharp commercial dealings. It relied on heavily on fishing and international commerce (including the slave trade), including smuggling. If a strong central government emerged, the state’s inflationary loose money policies, as well as its independent commercial course would be subject to control. The state had all those characteristics that Fed. 10 assigns to the most turbulent of small democratic states (“A rage for paper money, etc.”).
    Its convention voted 34-32 in 1790, after years during which no convention had been permitted to meet because the Constitution had lost in a popular advisory vote. The convention was called because the Bill of Rights had been proposed and because of threatened sanctions from other states (from taxing R.I. products as imports from a foreign country to using military force to quarantine or invade the place). “It’s not the size of the dog in the fight, but the size of the fight in the dog.”

  15. Everybody… thank you for your input. What I got from this reading is that we have been straying from the bed rock principles of human nature for some time now.It has us all caught up in a make believe world to some extent.Examples that come to mind,…the trophy generation children are being indoctrinated with this idea…..teachers not marking papers with red ink because some will “feel” bad, of course this was never the original intention of red ink. Raising children taught me many things ,among them was that each child was different an individual, they all had my love and attention but they all needed guidence in different area .Government needs to be there but mostly needs to get out of the way of the people,we can handle our own lives and resent intrusion , manipulation and trying to make us all something that someone else fancies is always a bad idea.,We are what we are and our founders understood the condition of man quiet well.

  16. Susan Craig says:

    Thank you, Prof. Knipprath (how do you pronounce that?). As a history fan it has been a head scratcher for me. I’ll wager things were quite lively in RI for a while.

  17. It’s been exciting to see so many blog participants today! A big thank you to those who are with us every day, and an enthusiastic welcome to some of our newer folks! Each of you brings a unique and valuable perspective to these pieces. The larger the group we hear from, the more complete and “whole” our understanding becomes!

    I was fascinated by the descriptions of factions in human nature, with faction defined as a group, majority or minority, united by a common passion or interest “adversed to the rights of other citizens, or to the permanent and aggregate interests of the community.” Knowing we can’t control the cause of these factions, the founders set out to control the effects.

    Madison argues that a republic is more effective than a democracy in controlling the effects of factions. I would bet that most citizens today cannot explain the difference between a republic and a democracy. Federalist No. 10 not only explains the difference, but outlines the reasons why a Republic is more effective than a Democracy in representing the broad interests of the community and Nation.

    I loved this sentence: “A rage for paper money, for an abolition of debts, for an equal distribution of property, or for any other improper or wicked project, will be less apt to pervade the whole body of the Union than a particular member of it.”

    Madison saw “an equal distribution of property” as “improper and wicked.” There is a moral case to be made for allowing the spirit of free enterprise to reign in our society. Men possess different abilities, and their “diverse faculties” produce different classes of property owners. A republic balances the interests of these different classes.

    Finally, towards the end of Federalist No. 10, a sentence that made me smile: “In the next place, as each representative will be chosen by a greater number of citizens in the large than in the small republic, it will be more difficult for unworthy candidates to practice with success the vicious arts by which elections are too often carried.” It is interesting to see that over 200 years ago, they still had problems with “dirty tricks,” in campaigns!

    Thank you again to everyone for your insights today!!

    Cathy Gillespie

  18. Brilliant. Brilliant. Brilliant. Mesmerizing. I agree with Professor Knipprath words, “Federalist No. 10 is a masterpiece of political theory and insight into human psychology. Almost every sentence is worth studying.”

    Well said, Professor Knipprath and your essay today is quite brilliant, too, and thought provoking, as well. I thank you for your devotion to “Constituting America” and for all of your esteemed guidance.

    I thank all of you who have blogged with us today and for your stimulating dialogue.

    There is so much wonder, scope, knowledge, perspective and vision in this paper that I do not even know where to begin. I do believe I may have to meditate upon it before I can give it the respect it deserves.

    What am I learning is the difference between a democracy and a republic and through these papers, and this paper in particular, I am getting a clear vision about why we are a republic. Passions, individual perspectives and political factions breathe life into liberty but they must be channeled and curbed. The answers to this challenge lie in our representative form of government.

    To quote James Madison:

    “Liberty is to faction, what air is to fire, an aliment, without which it instantly expires”

    I am sharpening my insights regarding Republican virtues. These virtues deserve to be studied in school and taught in the home. We, as citizens, would be wise to delve into the psyche of the Revolutionary patriots, imbue their sense of virtue and wear their armor of valor. Ah, to breath the air they breathed, to feel the electricity they felt – the enlightment, the courage, the inspiration, the determination.

    Knowledge is power. How fabulous that we are on this journey, this path of understanding – for if we do not know what we have, we will not know what is being taken away. Spread the word. Let’s get as many Americans to join us as we discover the thesis of our great land – to preserve it we must observe it.

    God Bless,

    Janine Turner
    May 11, 2010

  19. Carolyn Merritt says:

    I found #10 to be an exciting read. It was like reading the blueprint for today’s political atmosphere. In his first paragraph where he states “…that the public good is disregarded in the conflicts of rival parties; and that measures are too often divided, not according to the rules of justice, and the rights of the minor party, but by the superior force of an interested and over-bearing party.” This brings to my mind the current steamrolling of health care, bailouts, etc., without regard for the majority of citizens’ voicing their opposition.

  20. Joe Drum says:

    Wow, these are the kind of insights I was hoping to find when I came to this site. Thanks Janine and Cathy and can we hear more from Professor Knipprath?

 

Thursday, May 13th, 2010

In Federalist 12, Hamilton seeks to convince skeptical states that forming a union will increase and regularize a revenue stream.  His main argument centers on the assumption that the best source of revenue is the taxation of consumption, particularly consumption from abroad.  He takes great effort to dispel any possible advantages to a federal tax on land (since doing so would be “too precarious” and would put America’s agrarian livelihood at risk).  Any sort of direct (i.e. income) tax would also be “impracticable” because collection is difficult, hard currency is scarce, and such tax has never generated enough revenue in other places they had already been tried.

So duties was the way to go—and especially “duties on imported articles.”  But the problem remained, as Hamilton saw it, that, if each state levied its own duties at varying rates on different products, the likelihood of fraud would go way up.  After all, he reasoned, the states were all adjacent to several others, shared a language, enjoyed a long history of interaction already, and were connected by myriad modes of transportation, including rivers and bays.  Therefore, “all these are circumstances that would conspire to render an illicit trade between them a matter of little difficulty, and would insure frequent evasions of the commercial regulations of each other.”

But a unified system of duties across all states, collected and enforced by the federal government via “a few armed vessels,” would not create such incentives to cheat and would greatly improve the efficient collection of revenue.

But why do we even need revenues?  Well, as Hamilton asserts in Federalist 12, “a nation cannot long exist without revenues.  Destitute of this essential support, it must resign its independence, and sink into the degraded condition of a province.”  That is, to Hamilton, an independent and consistent revenue stream is necessary for political independence.

To increase the universe of revenue, Hamilton saw only one acceptable path: increase commerce.  After all, he argued, “the prosperity of commerce is now perceived and acknowledged by all enlightened statesmen to be the most useful as well as the most productive source of national wealth.”  It also increases the quantity of currency in circulation and thus makes the payment of taxes much easier (thereby increasing the “supplies” to the treasury).  Plus, and not insignificantly, a growing and varied commerce contributes to the individual—and thus the national—happiness.

So let’s follow the Hamiltonian logic here.  To maintain political independence, a nation must have a consistent and increasing revenue stream.  A consistent revenue stream best comes from a federal government levying duties on commerce—particularly commerce with foreign nations.  An increasing revenue stream comes from expanding commerce.  And expanding commerce “multipl[ies] the means of gratification”—or happiness.

Hamilton might find it fascinating that, 223 years after he wrote Federalist 12, some of the themes he addressed in it form the basis of some of today’s most furious debates.  For example:

  • Should the federal government receive an ever-increasing revenue stream? While many Americans regard any increase in revenue to the federal government as a positive development, other Americans regard increasing federal revenues as a guarantor of increasing federal spending on matters less and less constitutional.  After all, for example, how could we expect a grossly overweight man to gorge less when more and more food is put in front of him?
  • Should the federal government levy taxes on commerce with foreign nations? This question is of course at the center of the ongoing debate between free trade and so-called “fair” trade.   One would be hard-pressed to find any modern evidence of tariffs and other such duties being a net benefit for either levier or levee.
  • Should the federal government encourage the expansion of commerce? Here, Hamilton is spot-on.  Robust commerce benefits man and nation alike and thus should be positively promoted.  Hamilton would be horrified, however, at today’s practice of the government participating in commerce—not just facilitating it.

Regardless of how you feel about these three questions and other issues addressed in Federalist 12, we all can likely agree that Hamilton could never have conceived of the levels of revenues that pour into the federal government today.   Over the last forty years, tax revenue has averaged 18% of the Gross Domestic Product, and is projected to increase significantly under a variety of scenarios.

Paul S. Teller, Ph.D.  is the Executive Director of the RSC the caucus of House Conservatives

17 Responses to “May 132010 – Federalist No12 – The Utility of the Union In Respect to Revenue, from the New YorkPacket (Hamilton) – Guest BloggerPaul STellerPh.D., Executive Director of the RSC

  1. Shannon Castleman says:

    It seems that Hamilton would be a Fair Taqx supporter today, and here is where I base my hypothesis:

    1. He writes, “the prosperity of commerce is now perceived and acknowledged by all enlightened statesmen to be the most useful as well as the most productive source of national wealth.” . The Fair Tax would increase commerce and one reason would be that large corporations would move to our shores as they would pay 0% corporate taxes.
    2. He mentions the best form of taxing is that which taxes consumptions, not income. He notes that wherever a tax on income had been tried, it had failed. He also points out that efficient collection is difficult, which we all know to be true.

    3. He takes great effort to dispel any possible advantages to a federal tax on land (since doing so would be “too precarious” and would put America’s agrarian livelihood at risk). Part of the system we have today is the death tax. This keeps beneficiaries from growing their family wealth.
    4. But the problem remained, as Hamilton saw it, that, if each state levied its own duties at varying rates on different products, the likelihood of fraud would go way up. Do we not see this today with all the loopholes in the tax code? People try to wiggle in a “dubious” tax deduction to get a little more back. A one time sales tax paid at the cash register will knock out the fraud 90%.

  2. Susan Craig says:

    If the counter intuitive circumstance could be understood by the general populace that the less you tax and activity there is opportunity for more of that activity to occur yielding more tax revenueHamilton seems to have grasped this very well.

  3. Ron Meier says:

    Federalist 12 can take us down many rabbit trails. Obviously, the transition from an agraian society to a commercial and industrial society, overlayed with the increased velocity and quantity of information delivery, has made some assumptions about taxation extinct. Direct taxation is pretty efficient in our country and tariffs are frequently roadblocks to efficient and productive international trade. Commercial regulation was yet to begin, as the Congress was not yet formed.

    In 2010, most of us might observe that complex and repressive personal and corporate taxation as well as strangling regulation is making commerce difficult to expand as anticipated by our founders and as necessary today to provide sufficient revenue for all the government redistribution programs. If anything, the Congress seems to be more focused on limiting the ability of commerce to expand as rapidly as required today because they want to shield and protect the public, not from the government, but from risk and uncertainty. Our founders were very willing to accept both risk and uncertainty, as well as unequal outcomes, in exchange for protection from the government’s encroachment on individual liberty. “Security FROM government,” not “security OF government,” was the objective in the late 18th century America.

  4. Paul S. Gillespie says:

    The argument of inefficient collection of direct taxes is as valid today as in the late 18th century. While a very large percentage of American citizens voluntarily submit to paying their direct taxes in a lawful manner, a not insignificant number of people skirt or avoid these taxes altogether. This places a burden on the law abiding citizen as he must not only pay his share, but necessarily shoulder the shortfall of the uncollected taxes of those that enjoy the benefits of our free society but do not contribute to its expense. I think this is a very real cause of discontent and resentment among tax payers.
    The “Fair Tax”, much discussed today, would have many advantages over the present system. Primarily it is infinitely fair to all and would bring millions of people into the tax system who pay no taxes today. On the Federal side the cost of tax collection would be significantly reduced and the efficiency of tax collection would improve dramatically. On the commerce side there would be a resulting drop in the cost of goods and services, artificially high because of the added expense companies incur in order to comply with Federal tax law. The chief danger to this system is the temptation to congress to grant exceptions to interest groups in order to “promote the general welfare”.
    Would Hamilton agree?

  5. Roger Jett says:

    Ron Meier, I very much liked a lot of what you said in your post concerning “Federal Paper #12″. I especially appreciated your closing remarks, “Our Founders were very willing to accept both risks and uncertainty, as well as unequal outcomes, in exchange for protection from the government’s encroachment on individual liberty”. However, I do have to disagree with one statement which was, “Direct taxation is pretty efficient in our country”. Coming from an accounting background and having had extensive exposure to it, I have to contend that taxation in this country is anything but efficient. I’m retired now and my perspective comes from having worked in the private sector. Nothing is simple about our federal tax code and the system is inefficient beyond all comprehension. Blame the Congress for this. By their smoke and mirror tactics, they have constructed a tax system that is a complete monstrosity. I have nogreat love for the IRS, but I recognize that there are many good people working there under extreme conditions . They are left with the difficult job of carrying out the unseemly tax laws enacted by Congress …. they’re left holding that bag. We the people are encumbered not only by the direct tax burden, but also the substantial cost for compliance.

  6. Maggie says:

    @ Roger….I couldn’t agree more with our tax code being anything but simple. Even those in charge of overseeing tax law can’t seem to figure it out and pay their taxes. A consumption tax ensures that EVERYONE pays based upon what they use or consume. What does it matter how much money you make if you are not spending it? It is ultimately when you spend it that you impact the economy. It is at this end that it should be taxed….not before. Consume more…pay more. Consume less…pay less. It leaves the end results for each individual in their own hands.

  7. Susan Craig says:

    Roger, just think of what we’d do to the unemployment numbers if we put all the tax lawyer out of business by virtue of a consumption tax? ooo I shudder to think. No longer wending my way through that impenetrable maze in order to see if I can find another way to lessen the burden just a wee bit.

  8. Shannon Castleman says:

    I think the Fair Tax would be closest taxation method to what our founders would agree with; or mayb a few large excise taxes on certain items.

    1. It would increase the tax base -illegals, toursists, underground income, etc. An increased tax base would mean the economy would be less jolted by a small segment of the population going through economic harship. Today, if there are 100 million income earners, one person out of work is 1/100 millionth of the tax based lost; if 300 million people are paying a sales tax, then one person out of work is only 1/300 millionth of the tax base lost.

    2. Definitely fair. We all pay the same % at the register.

    3. Harder for the government to pay off their cronies. Today, a tax give away is sent in the form of a line you check off in your 1040 form. That is how segments of society get a tax break. When I get a $10,000 mortgage interest deduction, and I am in the 25% tx bracket, tat is the same thing as the government mailing me a welfare check for $2,500. If it is in the form of a check, I am looked down upon as a leech. If it done through my 1040, I am called a productive member of society. Under the Fair Tax, in order for a politician to decide to raise the sales tax to spend more money on his cronies, we ALL would have our taxes raised at the cash register. This way, the people would be better educated and more informed on the true cost of government.

  9. Dave says:

    Revenue . . . must be had at all events.” “[T]he necessities of the State . . . must be satisfied[.]” So the question remains who will bear the public burdens of our constitutional federal republic. As previous generations of children at play knew instinctively, everyone could not ride in the wagon at the same time–everyone, with few exceptions, had to pull their fair share. Again, kids knew what was fair–”you pull for five minutes then I’ll pull for five minutes.” Recently, The Tax Policy Center estimated that 47% of households pay no federal income tax. How come they get to ride in the wagon all the time and never get out and pull?

    In No12Hamilton makes a good case for ratification based on the States’ and individuals’ economic self-interest. With a federal tax system, much less revenue would “escape the eye and the hand of the tax-gatherer.” And there would be no need to bear the costs of administering 13 redundant state tax systems.

    Okay, so I’m sold on the idea that the new federal government will have a sufficient source of revenue to accomplish its constitutional objects. But I have other concerns: How fairly, equally, or justly does any source of revenue spread the burden over all Americans who benefit from the federal system being advocated? And, what restraints will be in place to keep the general government from spending any and all money it collects, instead of collecting only that amount it needs to accomplish its constitutional responsibilities?

    I think the founders and their successors were wrong to concentrate on tariffs. Indirect taxes are stealth taxes and you never really know who’s paying them. “In the 1850′s, the federal government obtained 92% of its revenues from customs duties imposed on goods imported from abroad.” (Weisman, The Great Tax Wars) And the reliance on tariffs led to, in my mind, at least questionable results–a farmer enjoying sugar-sweetened coffee at his local early-american Starbucks would pay more in taxes than someone buying $1,000,000 in bonds. The regressivity or progressivity of any proposed tax system should be transparent and is of course debatable. The amount and sources ofrevenue coming into the federal government has changed dramatically over the last hundred years or so–I just want to know why and has it been to our benefit. “In 1913, nearly half of federal revenues came from customs duties, and almost all the rest came from tobacco and liquor taxes.” (Weisman) Hamilton was way ahead of his time advocating “sin” taxes and luxury (“extravagance”) taxes on “ardent spirits.”

    Thank you to everyone at Constituting America for creating this wonderful project. How impressive and awe-inspiring!–To encourage ordinary Americans to study our founding documents. Thanks also to all the contributors. I enjoy reading what you think is important about our great country and where you think we’ve gone wrong and what we can do to get us back on the right track.

  10. Ron Meier says:

    Although all rational human beings would prefer a “fair tax” or “flat tax,” the probability of getting one is zero. The tax laws long ago ceased being a method for generating the revenue required to run the affairs of the federal government. Instead, the tax law has been the means for Congress to raise revenue to achieve the social and economic outcomes it desires at a particular point of time. It has also been used by the Congress to modify behavior of its citizens and corporations.

    There are two types of economic triggers available to the federal government, monetary policy and fiscal policy. Monetary policy is solely under the control of the Federal Reserve; fiscal policy is under the control of the legislative and the executive branches. The legislative branch initiates and passes fiscal policy laws and the President approves or disapproves. Fiscal policy has three elements: (1) government spending management, (2) federal debt management, and (3) taxation. We know that the Congress will not really control government spending; therefore, it needs to have a means by which it can adjust the cash flow required to fund the programs it wants to fund. There are two primary ways it can fund the programs. It can borrow money, thereby increasing the federal debt; there are limits to how much additional federal debt can be sold to investors. This leaves only one remaining way to raise the necessary funds – TAXATION.

    If a flat tax or fair tax were to be inititated, Congress would have it’s only real method of modifying behavior and raising money for social engineering taken away from it. Although you and I would love to see this happen, it won’t happen because Congress critters know that the game is over if their only toy is taken away.

    By the way, if you’ve been paying attention, Congress knows that it may be reaching the end of its rope with respectto its ability to keep increasing taxes, so it has used the current economic crisis to attempt to extend the reach of its powers to control monetary policy by making the Federal Reserve subject to its review. That sounds pretty benign, and like a good idea on the surface, but it is nothing but a first baby step to get its fingers in the monetary policy pie; once it gets a pinky in, the hand will follow. It’s important that we don’t let them get any control over the Federal Reserve’s Monetary Policy toolbox. Most people don’t understand any of this, so they ignore it. Keep your eyes and ears open for more in this arena.

  11. Great stuff…. The fair tax seems the way to go,here are two reservations /unexpected consequences (not without solution) 1) Would this create a black market? 2) would this hit the very poor right between the eyes,.If the margin they live on is close and they are not paying taxes would that throw them under the bus? Oh yeah… what about Social Security tax how would that be managed,,how would we assertain if someone has woked their required number of quaters to be elegible…. I don’t like the monsterous tax code we have today,but beleieve we could do this taking many cautous steps.

  12. Shannon Castleman says:

    Good points nDave. That is why nI like the Fair Tax. Every taxpayer pays 23% sales tax on the purchase of final goods. Every tax payer gets a monthly prebate deposit into their checking account to cover spending to the poverty level-a one time tax deduction. This ensures the poorest of the poor will not pay sales tax.

    If it were up to me, government would be cut 66%, and we would have a sales tax of 10% or so, with no prebate checks.

  13. Carolyn Merritt says:

    We are running under the assumption that if the powers that be decided to go with the fair tax system, they would do away with the federal income tax. There are states that have a sales tax and also collect a state income tax and all collect real property taxes. Therefore, depending on what state a person lived in, with the fair tax and the state taxes, some would still be paying more than others. True, the underprivileged would pay their fair share.

    The next question would be: What would be taxed and what would not be taxed? Food? Medicine?

  14. Carolyn Attaway says:

    I didn’t get to participate in the discussion today, but I enjoyed reading everyones comments, especially on a day when our Governor just eliminated 2 of our state taxes: the Senior Citizens Retirement Income Tax and the States portion of the homeowners property tax!

  15. As I read each day one of the Federalist Papers, my goal is to see the true intention of our Constitutional forefathers and also to see how it is relevant today.

    Their wisdom and foresight continue to astound me.

    “A prosperous commerce is now perceived and acknowledged, by all enlightened statesmen, to be the most useful, as well as, the most productive, source of national wealth and has accordingly become a primary object of their political cares.”

    A prosperous commerce is the most productive source of national wealth. How is this relevant today? Is America’s prosperous commerce being compromised? When the Federal government becomes a source of income, care and resources, when they seize control of her commerce, American enterprise and inspiration are stigmatized. This stigmatization stifles the prosperity of commerce because citizens lose their motivation and one of their most precious American traits – ingenuity.

    “The genius of the people will illy brook the inquisitive and peremptory spirit of excise laws.”

    This is very relevant today in regard to businesses being heavily taxed.

    And lastly, “A nation cannot long exist without revenue. Destitute of this essential support, it must resign its independence, and sink into the degraded condition of a province.”

    Our debt is surpassing our ability to recover. How long will we be able to survive economically, politically? How will we be able to protect ourselves? When destitute of support will we then resign our independence and sink into the degraded position of, yet again, a province?

    These are serious times. Our forefather’s words serve as warnings. They documented it for us in our United States Constitution and the Federalist Papers. They provided the answers. Will we heed their wisdom? To do so we must know about it. We must understand it. Knowledge is power. Spread the word.

    God Bless,

    Janine Turner

    P.S. I thank our fantastic scholar today, Paul STeller, and yesterday’s scholar Dr. Joe Postell. How lucky we are to have their insights and educated opinions! I also thank each and every one of you who have blogged! Fantastic.

  16. Roger Jett says:

    I found Ron Meier’s post today very helpful in getting a bigger picture of our nation’s current predicament. His depiction of the “fiscal policy” as it should be compared and contrasted to the “monetary policy” was insightful and he points out clearly the importance of both tools being used wisely and by the right people. I think the call for more accountability from the Federal Reserve with it’s management of monetary policy is prudent. I see great danger however in allowing those who through political motivation (Congress), have wrecked and misused the fiscal policy so badly, now gain undue influence over the management of monetary policy also. Thank you again Ron Meier in helping us get the bigger picture.

  17. Federalist Number 12

    Thank you to Dr. Paul Teller for your insightful post today, and to Dr. Joe Postell for your enlightening post yesterday! We are blessed to have Constitutional scholars such as yourselves helping us on our journey through theFederalist Papers! And thank you to everyone who continues to comment, and share your thoughts! I am learning so much from each of you.

    “The assiduous merchant, the laborious husbandman, the active mechanic, and the industrious manufacturer,–all orders of men, look forward with eager expectation and growing alacrity to this pleasing reward of their toils.”

    Taxes. No one like them. Since biblical times the tax collector has been seen as one of the most despised members of society.

    Taxes sparked the American Revolution. It is in our heritage to resent taxes, especially when we feel we have little orno say in how the money is being spent!

    Yet, Alexander Hamilton, in Federalist No12 makes an argument we may not like to hear – taxes are necessary. We must find ways to fund the government :

    “A nation cannot long exist without revenues. Destitute of this essential support, it must resign its independence, and sink into the degraded condition of a province. This is an extremity to which no government will of choice accede.Revenue, therefore, must be had at all events.”

    The question is how.

    It is fascinating to observe the progression of taxation in our country. From Article I, Section 8 of the United States Constitution:

    The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States;

    To a federal tax code that is over 7,000,000 words long (thank you to my friend Steve Moore for this fact, cited in a great piece he did for National Review http://article.nationalreview.com/268573/our-income-tax-monstrosity/stephen-moore)

    What happened?

    In federalist No12 Hamilton advocates consumption taxes because they are more fair, people will tolerate them better, and they are easier to collect. There were no assured means of assessing personal property ownership or personal income during this period in our country, and as Hamilton wrote, “because personal assets are difficult to trace, large tax contributions can only be achieved through consumption taxes.”

    In three years we will “celebrate” the 100th anniversary of the income tax, the ratification of the 16th Amendment to the United States Constitution. It is hard to believe that this complicated, lengthy tax code has been in existence for less than 100 years. The explosion of this code in such a short time shows the tendency of government to grow and intrude into our life and liberty, unless we vigilantly keep it at bay, guarding the boundaries of our freedom.

    It was eye opening to read Federalist No12, and see that in the early days of the Republic, an income tax was the furthest thing from the founders’ minds. These were men of great vision, and this is one more area where their foresight shines.

    If only we had listened to them more closely!

    Good night and God Bless!

    Cathy Gillespie

 

 

Guest Blogger: W. B. Allen, Dean and Professor Emeritus, Michigan State University

Sunday, May 16th, 2010

In the fourteenth essay Publius argues that America has discovered the merit of making the mechanical principle of representation the basis of unmixed and extensive republics. This is not only an extended republic, but it is a republic in which we do not have to make a special place for the rich and the poor. We will not reserve one legislative house for the rich, another house for the poor. We will not create formal classes in government, and the government will not depend on class distinctions.

It may not have been observed that the tenth essay’s principle of the extended sphere of the republic has a consequence in the operations of politics. There will be commerce, and single district representation also. There will be the “multiplicity of interests.” But we must not neglect that as interests multiply they must affect more people. The consequence of that fact for the ancient distinction between the rich and the poor is a significant diminution in the numbers of the poor. The logic and dynamic of the extended commercial republic is precisely to squeeze rich and poor towards the middle.

The real impact of this constitutional design is to get rid of the struggle between the rich and the poor. The great American middle class is an historical oddity that has come to characterize all the modern world impacted by the industrial revolution and the principles of modern republicanism. This growing middle class is the basis of the unmixed constitution, a constitution founded on the middle class that turned almost into the only “class.” One of the most extraordinary things about the argument in the tenth essay, which is reflected as well in the fourteenth essay, is that it anticipates the nineteenth century debate about class and political life. Publius responded in advance, in effect, to the arguments of Marx and others, insisting that the United States need not have the rich overcome the poor or the poor overcome the rich. It could rather offer a social, economic, and political dynamic through which in fact those distinctions disappear in terms of their political significance.

Grant we must that what are called the super-rich do exist, as do the tabloid sheets that celebrate. But we do not view the rich, or even the super-rich as a class. Which is the reason that they can be just about anyone, from extraordinarily gifted athletes to people of very old money and families. They are isolated; they are individuals. They are not a class. In fact the only thing that distinguishes them today is their money. Otherwise they seem much like everybody else, and sometimes less. What matters is that this happened not by accident; it happened by a constitutional design that aimed to base the Constitution’s support on the strength of a very large middle class.

The claim, therefore, in the fourth paragraph of the fourteenth essay, that we have an umixed and extensive republic, goes to the very heart of the Antifederalist challenges to the Constitution and leads Publius to inquire in the paragraphs following, what are the limits of a democracy? and how are we supposed to calculate this? The question must be asked because we know that general arguments must be tested by practical limits. We cannot assume that there are no limits to representation as an approach, especially if we take seriously the task of “harmonizing and assimilating” differences. Differences must at least be kept to such a level that they are subject to being thus harmonized.

Publius provides a calculation in the fifth paragraph and those following. It is interesting because of what it says about 1787 technology and what it implies about the future. First, he describes the limits of democracy as a dynamic function: “the natural limit of democracy is that distance from the central point, which will just permit the most remote citizens to assemble as often as their public functions demand.”

The natural limit is the distance determined by public functions.  The natural limit of a republic is that distance from the center, which will barely allow the representatives of the people to meet as often as may be necessary for the administration of public affairs. Can it be said the limits of the United States exceed this distance? “It will not be said by those who recollect that the Atlantic coast is the longest side of the Union, that during the term of thirteen years, the representatives of the States have been almost continually assembled.”

To say that members of the Confederation Congress were “continually assembled” is a bit disingenuous; for although the Congress was almost constantly in session, one of the chief complaints about it was the notoriously poor attendance of delegates.

Publius then conducts a lesson in public geography, leading him to conclude that the ability to travel from any point, within a certain period of time (two weeks in 1787), to reach capital and conduct business, sets the allowable size of the system. This is a fairly mechanical definition, and it can be misleading. Not only does it not respond to the matter of harmonizing and assimilating, but it deflects attention from the ultimate basis of Publius’s judgment. The twelfth paragraph makes this clear, when Publius appeals to ties of affection to sustain “one great respectable and flourishing empire.”

In other words, Publius reminds us that we started with a Union, not with a theory on the strength of which we generated a Union. A theory may tell us that the Union is not too big for its britches, but that does not imply its indefinite extension. The condition for extending the Union is the continual existence of the Union. But that, in turn, would depend upon people accepting its principles, and first and foremost those principles enunciated in the Declaration of Independence.

Thus, two things operate simultaneously: first, the notion of the mechanical theory, the distance limit and, second, the moral limits, the moral distance. To the extent that we accomplish Union on the scale of the moral distance, it becomes possible by the mechanical theory to justify extending the reach of the Union, and not one bit farther.

W. B. Allen is Dean and Professor Emeritus of Michigan State University

 

Guest Blogger: Professor Allison Hayward, George Mason School of Law and fellow with the Center for Competitive Politics

Tuesday, May 18th, 2010

Federalist #15

Alexander Hamilton’s Federalist 15 is a gloomy counterweight to Madison’s optimistic Number 14. Madison ended No. 14 praising the noble course set by the founders of the new nation. Hamilton’s No. 15 is like a splash of cold water, reminding citizens of the moment’s terrible perils.

And the troubles are many. The nation’s present configuration is inadequate to the task. The central government cannot govern, and thus cannot honor its debts, defend its territory, engage in diplomacy, or unite its constituent state governments.

And therin lies the rub, not just for Hamilton and the founders, but for generations afterward. How should the central national government relate to the states? The states are the unit of government charged with the ratification of the constitution. But Hamilton knows that a “mere” confederation of states will not survive, not in the dangerous world of the late 18th century. The central government needs sufficient power to govern the nation as one unit, when solidarity is required. Recalcitrant states must be brought to heel to honor their obligations. That meant, in contrast to the Article of Confederation, extending the federal government’s power to impose obligations upon real citizens as individuals, not just intangible state governments.

This is a big step. Hamilton’s challenge is to appeal to his reader’s fear of irresponsible state governments. He can then position the national government as a solution to that problem, rather than as a tyrant to be feared itself. But among his readers are also the political leaders within New York, so he must argue carefully. He isn’t attempting to convince his New York readers they need to fear for irresponsibility in their own state government. He doesn’t need to accuse them of fecklessness. It is enough that other states will take advantage of a weak central government to pursue short term agendas to the ultimate detriment of all.

As we know, debate over the size and scope of the federal government persisted after the ratification, even to this day. From our vantage point, it may seem odd to entertain the notion that the central government could be too weak. Federal statutes and regulations reach deeply into American society, and into areas of governance traditionally left to state and local governments, such as criminal law, education and corporate governance. But in 1787, the prospect that the United States could become a “failed” state was real. However one feels about the size of government today, reading Hamilton should remind us that “ordered liberty” requires some authority to maintain the order.

Federalist 15 makes interesting reading in light of the financial crisis in Europe. Although the EU has an executive, the power of the central government is fragile and nothing like that established by the Constitution. Is the European Union sufficiently powerful to bring fiscal order to its constituent nations? Or will the lack of fiscal discipline in Greece, to name but one member, pull the EU down, destroy the Euro, and provoke domestic crisis throughout Europe? Can Europe impose a federal solution? I suspect that the EU may fail, because its constituent nations will be unwilling to yield the necessary sovereignty to create a sufficient federal government.

Professor Allison Hayward teaches election law at George Mason School of Law and is also a fellow with the Center for Competitive Politics

 

16 Responses to “May 18 – Federalist No. 15 – The Insufficiency of the Present Confederation to Preserve the Union, For the Independent Journal (Hamilton) – Guest Blogger: Professor Allison Hayward, George Mason School of Law and fellow with the Center for Competitive Politics”

Susan Craig says:
May 18, 2010 at 10:01 am
Honor and restraint seem to be the necessary ingredient that both Madison and Hamilton imply. Especially in this quote from #15: “should you permit that sacred knot which binds the people of America together be severed or dissolved by ambition or by avarice, by jealousy or by misrepresentation.” Unfortunately quite a few of the list seem to be rampant in today’s world. I think the most damaging is misrepresentation (aka lying). Presenting your self or your program in language that obfuscates the intent. Most recent example “Employee free choice Act”. How ironic the “Big Government” of 1787 is now looked on as the ideal of the “Small Government” people. As we traveled from 1787 to now it seems that we suffered from the belief that if this much is good maybe a little more will be better.

Susan Craig says:
May 18, 2010 at 10:37 am
Found an interesting chart defining the ‘factions’
The Parties as they were constituted at inception:
Republicans (aka Anti-Federalist)——————–Federalist
radical Whig—————————————-moderate Whig (can anyone define Whig belief)
localists——————————————–more centralist
agrarian——————————————–commercial
less taxation—————————————-taxation
balanced budget————————————deficit (as a tool for credit)
egalitarian—————————————— enlightened paternalist
strict construction———————————–broad interpretation
pro-French——————————————pro-British
expansionist—————————————–reluctant expansion
became modern Dems——————————–became the modern Reps
Does it strike you that there is coming another 180?

Charles Babb says:
May 18, 2010 at 11:21 am
Professor Hayward, your analysis of Federalist No. 15 is very enlightening.
However, Publius may have been short sighted in his view. The balance of power still seems to be a problem. In 1787, the States were “recalcitrant” of their fiduciary and other responsibilities to the Confederacy. The Constitution seems to have solved that problem, but will it solve today’s dilemma caused by a Federal governments bribing the States into prostituting away (using the citizens tax dollars) the liberties of their citizens, with it’s tentacles wrapped firmly around our throats in many areas. Especially in the area of education. They realize that a people made dumb as sheep, are easily led to slaughter.
Today we have a federal government that refuses to enforce the laws it has passed; but wants to bring legal action against a State which, in desperation for life, limb and property, tries to take upon itself that task of citizen security, for which the federal government is now recalcitrant. The federal legislature is so enthralled with a power grab that all they can talk about is creating “comprehensive legislation”, rather than insisting on the enforcement of the laws already on the books. K_I_S_S.
Friends, passion has caused me to exceed the bonds of strict adherence to the analysis of FEDERALIST No. 15, I beg your indulgence.
MAY GOD BLESS AMERICA

Ron Meier says:
May 18, 2010 at 12:24 pm
We are going through this exercise of reading the Federalist Papers @ a time in world history when we get see first hand what our founders were talking about in the first 20 or so papers. As Professor Hayward notes, we are watching a Confederation in Europe crumble before our very eyes, and we can refer back to the various FPs to understand why.
At the same time, we are seeing in our own country the very thing that the States and citizens were worried about with respect to our Federal government attempting to consolidate power by having complete control over two of the three branches of government and attempting to neutralize the ability of the states, particularly Arizona, from protecting their own interests.
It’s great that we are able to analyze what we see, hear, and read more rationally, rather than just passionately, as a consequence of reading the FP. The language of the authors of the FP makes reading and understanding somewhat arduous, but enlightening when the gist of each article comes through.

Carolyn Attaway says:
May 18, 2010 at 12:24 pm
I found Paper 15 to be very relevant to current events. I could not help but think of all the situations that are occurring in and around America today, as I read Hamilton’s debate for a Federal Government.
The third paragraph had excerpts that jumped from the page which served as reminders of why we need a sound and common sense Federal Government, and not one set on pushing its own agenda. Hamilton states “We may indeed with propriety be said to have reached almost the last stage of national humiliation. There is scarcely anything that can wound the pride or degrade the character of an independent nation which we do not experience….Do we owe debts to foreigners and to our own citizens contracted in a time of imminent peril for the preservation of our political existence?….We have neither troops, nor treasury, nor government….Is commerce of importance to national wealth?….Is respectability in the eyes of foreign powers a safeguard against foreign encroachments? The imbecility of our government even forbids them to treat with us.”
These statements, though written at an earlier time to defend the need of a Federal Government, can be looked upon today as a defense to rid ourselves of the status quo in Congress. Hamilton tries to convince the people of New York of the need for a basic Federal Government whereas today it has become overbearing and oppressive. The Congress has allowed the United States to be humiliated, and has apologized for her standing as a Superpower to other countries. They have endangered our AAA rating in the financial markets by increasing our debt to foreign powers as well as to their own citizens.
We may have military power, but it is constantly being undermined by accusations and political correctness. We have no treasury, and our federal government is quickly becoming imbecilic. I believe Congress has forgotten the reason behind its creation.
Hamilton writes: “Government implies the power of making laws. It is essential to the idea of a law, that it be attended with a sanction; or, in other words, a penalty or punishment for disobedience. If there be no penalty annexed to disobedience, the resolutions or commands which pretend to be laws will, in fact, amount to nothing more than advice or recommendation.” I realize that this statement was intended for the States in trying to form a Union, but I cannot help but see the hypocrisy in this statement when in it is applied to the Federal Government in relation to the immigration laws and dealing with enemy combatants.
One of the main reasons for a Federal Government was, and is, National Security. Our Congress views the laws to these issues as recommendations, to be applied to their best advantage, when in fact, it should be their number priority.
I heard the following on the news yesterday, “Most of the illegals caught crossing are from Mexico or South America, but thousands are classified as OTMs, “other than Mexicans,” including hundreds from nations that sponsor terror. These are the records we obtained at this federal detention center near Phoenix, Arizona. We find illegals from Afghanistan, Egypt, Iran, Iraq, Pakistan, Sudan, and Yemen in custody. This congressional report on border threats confirms members of Hezbollah have crossed the southwest border. It also contains photos of military jackets found on the border. The Arab insignia reads: “Martyr: Way to eternal life.” The other depicts a plane crashing into the Twin Towers. The congressional report also reveals the route Middle Easterners take. They travel from Europe to South America to the tri border region where they learn to speak Spanish, then travel to Mexico and blend in with other illegals heading to this country. Former Arizona Governor Janet Napolitano is now secretary of Homeland Security. We wanted to ask her about the border threat, but our request for an interview was never answered.” (Link: http://www.wsbtv.com/news/23434381/detail.html)
Instead of securing our borders, Congress is inviting illegal immigrants to the bounty produced by hardworking citizens, and admonishes those who question their actions.

Dave says:
May 18, 2010 at 1:15 pm
Thank you, Professor Hayward for your thoughts on Hamilton’s No. 15. I was struck by the tone of the paper, and more specifically, the words and phrases Hamilton used to describe the situation back in the early winter of 1787. The “troubles are many.” They probably were, but I couldn’t help picture Hamilton as Professor Harold Hill in the Music Man singing “We Got Trouble.” In writing about the “material imperfections” and “those defects in the scheme of our federal government” under the Articles of Confederation, Hamilton does seem to be a tad hyperbolic: “impending anarchy,” “national humiliation,” “imbecility of our government,” “mimic sovereignty,” “melancholy situation,” “brink of a precipice,” “plunge us into the abyss,” “destitute of energy,” “political monster,” “desperate extremity,” and “the frail and tottering edifice.” He sums it all up by basically saying that anything that could have gone wrong has gone wrong. Here is a master salesman at work.
Hamilton knows the stakes and is not shy in making the hard sell. America is in dire straits and anyone who opposes the plan of union can be characterized “by ambition or by avarice, by jealousy or by misrepresentation.” The negative aspects of our human nature never seem to be present in the supporters of the plan. They all have the Wisdom of Solomon, the calm patience of Job, and the self-sacrifice of Jesus. Let’s be honest, Hamilton knew his duly revered General Washington would most likely be chosen as the first president and that he, Hamilton, would be in the first administration. It is to be remembered that it was Hamilton’s plan at the Constitutional Convention that had a president for life with supreme veto power over any and all laws.
So, even if his Bill of Particulars, “enumeration of particulars,” presents a convincing indictment against the existing Confederation, Publius should still be tasked to justify his solution to “this desperate extremity.” Publius has 70 more papers to make his case. Will the new plan of union truly protect the governed so they may enjoy the prime object of government, ordered liberty?
One is tempted to ask, “Who decides what, and how much, order?” In the end, force or the threat of force must become a real possibility. Washington said, “Government is not reason, it is not eloquence—it is force! Like fire, it is a dangerous servant and a fearful master.”
Thank you Professor Hayward for bringing in the current EU troubles. This seems to be analogous to what Hamilton said about the law must have sanctions. How is the EU to act against Greece but by force (“military execution”) or the threat of force, if Greece decides not to honor her agreements.
In No. 15 there exists a rallying cry for our times: “[L]et us make a firm stand for our safety, our tranquility, our dignity, our reputation. Let us at last break the fatal charm [of Statism of all kinds] which has too long seduced us from the paths of felicity and prosperity.”

Carolyn Attaway says:
May 18, 2010 at 1:44 pm
Thank you Dave for mentioning the statement in your last paragraph. I too feel this is a rallying cry for our times. I highlighted it in my reading of Paper 15 and drew an arrow to the last sentence six paragraphs down: “we must extend the authority of the Union to the persons of the citizens, –the only proper objects of government.” As citizens of the United States, I believe it is our task to keep our government in check, and be more active in our involvement than just voting.

Maggie says:
May 18, 2010 at 2:19 pm
Carolyn I couldn’t agree more. When I read “Do we owe debts to foreigners and to our own citizens contracted in a time of imminent peril for the preservation of our political existence?”, I instantly thought of China and how much of our debt they hold. We are literally selling away our power. I was also struck by this statement: “We have neither troops, nor treasury, nor government”. Yes, we have a very strong military; but for how much longer when every democratic administration that comes into power further defunds the troops? I, too, immediately thought of the immigration issues with Hamilton’s writing “Government implies the power of making laws. It is essential to the idea of a law, that it be attended with a sanction; or, in other words, a penalty or punishment for disobedience. If there be no penalty annexed to disobedience, the resolutions or commands which pretend to be laws will, in fact, amount to nothing more than advice or recommendation.” I believe that this quote stands for many laws on our books that are simply NOT being enforced. Every time a politician brings up gun control and how “we need more laws” all I can do is think about the many laws we already have controlling the ownership of firearms….they just aren’t being enforced. Why is it that those in Washington just don’t seem to comprehend that criminals don’t care about laws? They have already broken laws…that is why they are CRIMINALS. Further revoking the rights of law abiding citizens will NEVER change that.

Lynne Newcomer says:
May 18, 2010 at 3:22 pm
Thank you Professor Hayward for your quidence on this paper.
I do so agree with so much that has been written by everyone that it would waste time to name everyone.
Simply… with regard to AZ, we are either a Nation of laws or we are not.The Gov of AZ.showed remarkable fortitude to stand up to Washington.She is no fool she knew she would meet with much hateful speech etc, but went on and is weathering the storm hip- hip- hurray.The fact that Washington is lowering the standards of civil, and acceptable dialogue is surely regretable but the sanctions are going to come their way,and they will come from the voting booth.We are a smart people and we know the Pres,and Congress ore failing to do their jobs.
I like the EU example, the officers of the EU,seem to be toothless and of a more ceremonial nature.I do hope that they find their way .

Dave says:
May 18, 2010 at 3:49 pm
Carolyn, what I think everyone can accept is that a sovereign implies some control over the individual. The sticking point for the Anti-federalists (and for me I’ve lately learned) seemed to be how justly and efficiently a distant, centralized power would govern. We’ve seen some elaboration and we’ll see a lot more of the compromise reached between the consolidators and confederals. The consolidators placed their trust in the State. Those advocating for more of a true federal system wanted a buffer between the national government and the individual. There would be two sovereigns over the individual, each with their own sphere of authority. General, national concerns would fall under the purview of the general government, and the local, private, every-day concerns would be handled by the state or local government. I think it’s quite workable in a republic of virtue, in spite of Hamilton’s slam of an imperium in imperio as a “political monster.”
The irony should not be lost on any of us reading No. 15–Hamilton was indicting the weak national system of the government under the Articles of Confederation and yet almost every malady he mentions could apply today in spite of a very strong leviathan, national government. Publius is constantly urging opponents of the plan to open their eyes to the light of reason and experience and see that an energetic, wide-ranging central power will cure all their ills. We’ve gone wrong somewhere. Would that there were a modern-day Publius to counsel us on how we’ve gotten off course and what we can do to get back on the right course.
I do know our state governments have let us down. Here’s a sampling of excerpts we will read in the next few weeks showing the buffer role of the states I mentioned:
We may safely rely on the disposition of the State legislatures to erect barriers against the encroachments of the national authority. (No. 85)
The executive and legislative bodies of each State will be so many sentinels (No. 84)
But ambitious encroachments of the federal government on the authority of the State governments would not excite the opposition of a single State, or of a few States only. They would be signals of general alarm (No. 46)
schemes of usurpation will be easily defeated by the State governments (No. 46)
I should not have rambled on so. All I wanted to say is that I agree with you in the role of the individual, but the states have a responsibility and they seem to be shirking it.

Jimmy Green says:
May 18, 2010 at 4:32 pm
The theme of the States surrendering some power to the Federal Government via the Constitution to strengthen their security and prosperity through a Union of these same states is a continual
theme in the federalist papers.
While I generally agree with the adage of “united we stand divided we fall”
I would be more interested in Hamilton’s views on what should occur if the Federal government fails to uphold its enumerated powers.
What are the states rights if the federal government abrogates or is lacking or deficient in its constitutional powers.
I’ve seen mentions of the Arizona law in some people’s writings. What would Hamilton think the proper response of a state to the Federal Governments lack of securing the borders? There are many such examples but as the federalist papers are to explain why the states should unite one is left to wonder what Hamilton’s view are on states rights as a consequence of the failures of the Fed.

Shannon Castleman says:
May 18, 2010 at 4:38 pm
Dave, indulge away. Great points. Those who have brought up the EU are right on. True, we have a front row seat , as though we went back in a time mchine, to watch the disintegration the former empire across the pond.
But the Professor’s statement brought it to a new light for mr when she said that the EU actually needs to be stronger (like hamilton wanted for the US). It was hard for m to grasp as I always viewed individually the nations of Europe to be too much beholden to central government.
But now I see the reasoning behind that.
I am learning so much.

Carolyn Attaway says:
May 18, 2010 at 5:26 pm
Maggie, I agree with you about being over regulated by our government. If I hear of one more law that strips away our right to make choices, I think I will scream. Oops! Sorry! I have already done that. This latest push to take away McDonalds right to put a toy in their happy meal because parents shouldn’t be burdened with having to tell their children NO, I think takes the cake. If I wanted a nanny, I would have hired one.
I agree as well that our 1st and 2nd amendment rights are under major attack, but the people in Congress who are suppose to care, just roll over and admit defeat. I am soooo ready for November.
Dave, you have me in your corner in the belief that States have been giving away their rights piecemeal by piecemeal. Many are starting to wakeup in lieu of all the costs that they will be burdened with, I just hope it is not to late. Regarding your wish for a modern-day Publius, Gov. Chris Christie is on the right track, and if he succeeds in lifting up New Jersey, we may have someone other Governors may try to imitate.

Carolyn Merritt says:
May 18, 2010 at 7:51 pm
Thank you Professor Hayward for your enlightening analysis of Federalist 15. Hamilton could have written this paper for what is happening to our Country today. We are heaviily in debt, our military is being undermined by Congress and this President; toll roads, power companies, oil companies owned by foreign countries; we print money just as fast as this government can spend it and worse of all – our respect around the World is diminishing because of all the apologists in the current admininstration.
I liked Hamilton statement “Why has government been instituted at all? Because the passions of men will not conform to the dictates of reason and justice without constraint.”
Amen Charles: “May God Bless America.”

Constituting America says:
May 19, 2010 at 12:23 am
Relevancy today. It is very clear in Federalist Paper No. 15 that cohesion between the states was necessary in order to preserve our union in a viable way.
Our guest scholar, Professor Allison Hayward, (I thank you Professor Hayward for your wonderful essay!) speculates about the future of today’s European Union, “I suspect that the EU may fail, because its constituent nations will be unwilling to yield the necessary sovereignty to create a sufficient federal government.”
The potential failure of the European countries to render themselves to a singular government speaks volumes about why the United States was able to succeed. Americans had the foresight and the fortitude to unite after the Revolution, rendering brilliant results. Thus, two miracles birthed the United States of America, one the success of the Revolutionary war, the other the success of the United States Constitution.
Homage must be paid to our Constitutional forefathers who tirelessly, tenaciously and methodically gave their time and talents to achieve the three pertinent steps: the Constitutional Convention, the rendering of the Constitution and the eventual ratification. This was no easy feat, yet it proved to be our rallying point and the launching pad for realizing the potential of our countrymen and the wealth of the land.
Yet, today, we must question if the confines of our great Constitution have been stretched beyond what our forefathers intended. A federal government to persevere and preserve is very different than a federal government to control and contrive.
Here are some of Alexander Hamilton’s words that I find relevant today and thought provoking:
“I have unfolded to you a complication of dangers to which you would be exposed, should you permit that sacred knot, which binds the people of America together, to be severed or dissolved by ambition or by avarice, by jealousy or by misrepresentation.”
“We may indeed, with propriety, be said to have reached almost the last stages of national humiliation. There is scarcely any thing that can wound the pride, or degrade the character, of an independent people, which we do not experience.”
“Do we owe debt to foreigners, and to our own citizens, contracted in a time of imminent peril, for the preservation of our political existence?”
“Is public credit an indispensable resource in a time of public danger?”
“Because the passions of men will not conform to the dictates of reason and justice, without constraint.”
“The rulers of the respective members, whether they have a constitutional right to do it or not, will undertake to judge of the propriety of the measures themselves. They will consider the conformity of the thing proposed or required to their immediate interests or aims; the momentary conveniences or inconveniences that would attend its adoption.”
Are we not experiencing all of the above today?
God Bless,
Janine Turner

May 18, 2010
Constituting America says:

May 19, 2010 at 12:55 am
Have you been watching Janine’s Behind the Scenes Videos? They are fantastic! Last night Juliette Turner, Constituting America Youth Director, talked about the We The People 9.17 Contest, and how important it is that young people understand the Constitution and founding principles of our country! Check out these fun, short videos – where else can you see pets reading the Federalist Papers, or meet Longhorns with names like Revolution or America’s Pride? You’ll see some beautiful Texas landscapes, and if you click on the right one, you’ll even get to hear Janine sing the Star Spangled Banner!
Thank you to Professor Allison Hayward of George Mason University! Your thorough explanation, and tie-in to Europe’s present day troubles, made Federalist No. 15 come alive! Thank you also to all who posted today. If you are reading, and haven’t written your comments in our blog, please join the conversation! We need your voice and view!
I echo Professor Hayward’s observation that Hamilton’s Federalist No. 15 is a bit of a downer after Madison’s optimistic essay yesterday. Madison’s Federalist No. 14 made my heart swell with pride to be a citizen of the United States of America. Federalist No. 15 reminds us that our country soared to greatness, strength and respect from humble beginnings. In 1788 the prospect of failure was very real. Hamilton does a brilliant job describing the environment, and paints a bleak picture, “the last stage of national humiliation”: lack of respect in the world, debt, no troops, declining commerce and land values, lack of private credit – the list goes on and on. The country was at a low point.
But out of this low point, rose our great Nation – rebuilt upon the framework of the United States Constitution. In fact, if all had been going well in the late 1780’s, the beautiful, unique, perfectly balanced republic that emerged might never have been born.
That is the lesson I take from Federalist No. 15. And one I have learned from Constituting America’s co-chair and my good friend, Janine Turner, who is an inspiration to me. Janine often speaks about how tough times etch our character and shape us into who God wants us to be. The tough times in Hamilton’s day produced the United States Constitution.
Our country is again going through tough times. Hamilton’s words throughout Federalist No. 15 could easily be describing our present day circumstances. But look what these tough times have already wrought: a renewed passion and engagement of the citizens of the United States! There is an energy and thirst for knowledge taking hold across the country that I have not felt before in the 25 years in which I have been involved in politics.
Where will this lead? What lies ahead? When we Americans join together, with our spirit of enterprise, ingenuity and passion, only good things will result. We are once again on the “precipice” Alexander Hamilton speaks of, but I predict we will not plunge into the abyss. Instead, we will emerge stronger, fortified, with a renewed, patriot’s zeal and commitment to our country’s founding principles.
I look forward to the readings that lie ahead, sharing with you and others, and putting what I am learning to use!
Good night and God bless!
Cathy Gillespie
May 18, 2010

Guest Blogger: Marc S. Lampkin, partner at Quinn Gillespie and Associates LLC and graduate of Boston College Law School

Wednesday, May 19th, 2010

Federalist #16

In Federalist #16, Alexander Hamilton continues to outline the deficiencies of the present system of government authorized under the Articles of Confederation.  It is Hamilton’s view that the loose confederation will lead to lawlessness and ultimately anarchy once the inability to enforce its own laws becomes apparent.

This exceptionable principle may, as truly as emphatically, be styled the parent of anarchy: It has been seen that delinquencies in the members of the Union are its natural and necessary offspring; and that whenever they happen, the only constitutional remedy is force, and the immediate effect of the use of it, civil war.

The system that was in place had two important facets:  it was a voluntary association of the states and secondly it was in most respects a government whose actions were non-binding. The fact that the Articles of Confederation were voluntary meant that the Congress ruled with the consent of the governed and therefore exercised their authority lawfully.  However, the fact the government could not enforce its dictates meant that ultimately festering conflicts could result in armed conflict among the several states as the enforcement mechanism of last resort.  Furthermore, due to the differences between the size and influence of some of the states, the confederation was particularly ill suited for America.  With no enforcement power, the confederation created asymmetric power centers encouraging large and powerful states to see national policies for their benefit while disregarding the needs of the smaller and less powerful states.  In the unlikely circumstance wherein the Congress adopted a policy that might benefit small states, larger states might ignore them with impunity.  Such a circumstance potentially leads to civil war.

In fact, Hamilton observes that this asymmetric distribution of authority had other problems unrelated to the tendency towards internal armed conflict.  Even when faced with exogenous threats, because the states view themselves as sovereigns — motivated primarily by their own self preservation — the national government would either not have access to the resources necessary to prevent an attack from a foreign enemy or perhaps simply not respond to an attack if the attack was perceived as being against one of the states rather than the nation as a whole.

If there should not be a large army constantly at the disposal of the national government it would either not be able to employ force at all, or, when this could be done, it would amount to a war between parts of the Confederacy concerning the infractions of a league, in which the strongest combination would be most likely to prevail, whether it consisted of those who supported or of those who resisted the general authority. It would rarely happen that the delinquency to be redressed would be confined to a single member, and if there were more than one who had neglected their duty, similarity of situation would induce them to unite for common defense.

On the other hand, since the Articles of Confederation do not give Congress the power to lay and assess the taxes without consent or to compel the armies necessary to stave off attacks, the weakness that the American government presents to other nations would appear quite provocative.  Hamilton complains that by their nature, the states as sovereigns are not transparent entities and therefore even assessing duties or raising armies is unduly difficult.  Does a state refuse to pay up its share because of actual shortages it is experiencing or because its support for the cause identified is lackluster?

If there were a national government like the one described in the Constitution, it would already have the authority to defend itself — recognizing that an attack on one part was an attack on all.

Even if the conflict from foreigners is not the result of a coordinated assault i.e. a war, foreign governments would still be tempted to sow dissension among the states, Hamilton argues.  As long as the states themselves are complete sovereigns, they have every incentive to evaluate foreign relations, trade, and even aid solely in terms of its impact on them as sovereigns and not on the nation as a whole.  Hamilton calls this “Its more natural death is what we now seem to be on the point of experiencing, if the federal system be not speedily renovated in a more substantial form.”

Nevertheless, even if the states were to voluntarily provide the resources for an army, would the force be used to intimidate would be attackers or instead to enforce through intimidation its policies among the states themselves?

It remains to inquire how far so odious an engine of government, in its application to us, would even be capable of answering its end. If there should not be a large army constantly at the disposal of the national government it would either not be able to employ force at all, or, when this could be done, it would amount to a war between parts of the Confederacy concerning the infractions of a league, in which the strongest combination would be most likely to prevail, whether it consisted of those who supported or of those who resisted the general authority.

Then this would present concerns that are even more troublesome.  Wouldn’t it be the case that what Hamilton calls the “delinquency” (meaning the failure of compliance) would occur not just among one state but also likely among several?  In addition, wouldn’t powerful states attempt to align themselves in ways to avoid suffering the consequences of their delinquencies?  If so using the military to enforce compliance begins to look a lot like civil conflict or civil war now that the states joined together in alliances are using enforcement of national policies as a tool of enforcing their perceived advantages.

Hamilton writes, “It would rarely happen that the delinquency to be redressed would be confined to a single member, and if there were more than one who had neglected their duty, similarity of situation would induce them to unite for common defense. Independent of this motive of sympathy, if a large and influential State should happen to be the aggressing member, it would commonly have weight enough with its neighbors to win over some of them as associates to its cause.”

A final critique that Hamilton makes of the Articles of Confederation stems from the notion that it would be beneficial that states would affirmatively approve most of the policies adopted by the national government.  While on its face, it might appear that requiring a second step in order to assure that a given statute must go into effect would be good for liberty, Hamilton argues that it was more likely to lead to anarchy or civil conflict.

Under the U.S. Constitution many checks and balances were already put in place, which acted in many ways as hurdles to excessive, or passion based legislation.  The new Constitution by its design sought to encourage greater deliberation leading to legislation that is more necessary and weeded out that which was frivolous.  Forcing the additional step of state approval would be needlessly limiting the flexibility of the national government while sowing seeds for conflict.

Hamilton asserts, If it be possible at any rate to construct a federal government capable of regulating the common concerns and preserving the general tranquillity, it must be founded, as to the objects committed to its care, upon the reverse of the principle contended for by the opponents of the proposed Constitution. It must carry its agency to the persons of the citizens. It must stand in need of no intermediate legislations; but must itself be empowered to employ the arm of the ordinary magistrate to execute its own resolutions. The majesty of the national authority must be manifested through the medium of the courts of justice. The government of the Union, like that of each State, must be able to address itself immediately to the hopes and fears of individuals; and to attract to its support those passions which have the strongest influence upon the human heart. It must, in short, possess all the means, and have aright to resort to all the methods, of executing the powers with which it is intrusted, that are possessed and exercised by the government of the particular States. To this reasoning it may perhaps be objected, that if any State should be disaffected to the authority of the Union, it could at any time obstruct the execution of its laws, and bring the matter to the same issue of force, with the necessity of which the opposite scheme is reproached.

Hamilton reveals himself to be quite alarmed by the potential threats posed by the Articles of Confederation.  While he may not see the U.S. Constitution as a panacea to all problems that the young nation might  face, he believes that by its design, it is far better able to prevent conflict, or in the event that conflict occurs, it would be able to see that the nation was ultimately able to survive it.

Marc S. Lampkin, partner at Quinn Gillespie and Associates LLC is a graduate of Boston College Law School

18 Responses to “May 19 – Federalist No. 16 – The Same Subject Continued: The Insufficiency of the Present Confederation to Preserve the Union, From the New York Packet (Hamilton) – Guest Blogger: Marc S. Lampkin, partner at Quinn Gillespie and Associates LLC and graduate of Boston College Law School”

Susan Craig says:
May 19, 2010 at 9:03 am
The more I read and study what transpired between the Declaration of Independence and the end of George Washington’s second term the more I find myself squarely between the two factions. I see the deficiencies of the Articles of Confederation but seeing how some of the programs that were darlings of the Federalists have developed I think I would have fought to caveat the Federal Government a little more strictly and defined the relationship of State to Federal a little more clearly.

Charles Babb says:
May 19, 2010 at 11:55 am
How would we ever make any sense of these writings, were it not for the wise interpretation and guidance of our special guest bloggers? Thank you.
I would like to explore Mr. Lampkin’s thoughts in the following observation;
“Under the U.S. Constitution many checks and balances were already put in place, which acted in many ways as hurdles to excessive, or passion based legislation. The new Constitution by its design sought to encourage greater deliberation leading to legislation that is more necessary and weeded out that which was frivolous. Forcing the additional step of state approval would be needlessly limiting the flexibility of the national government while sowing seeds for conflict.”
Do we not see a design fault here, resulting in excessive legislation, happening today? Is this one of the areas where you, Susan, would like to have seen greater clarification?
I shudder to think what the volume of legislation is that has been passed over the years. And yet in November we will elect, or re-elect, representatives who will go to Washington and pass more confusing and conflicting legislation, largely because (1) they try to hide the intent of their proposed legislation through volume and “legalize” and (2) our representatives are too lazy to read it.
How can you “deliberate” that which you do not comprehend?
And once it becomes the law of the land, if they do not enforce it, are they not in violation of their “Oaths of Office”?
What recourse then do “we the people” have?
We have November.
MAY GOD BLESS AMERICA

Nickie Summers says:
May 19, 2010 at 12:47 pm
Two thoughts come to mind reading the founding papers:
First, it is crystal clear to me how far our country has moved away from the Constitution (defining principles and the relationship between the federal government and the states/citizens.) The Federalist/founding papers are redundant making the case to caution people of an ‘over reaching’ government. Hamilton says in No.15, and I’m paraphrasing, the idea of the Constitution is incompatible with the idea of government and therefore a Republic is the only safeguard against an unruly government. No. 16 expands on that and much more. Federal government has to remain small and ‘in check’ to their boundaries/responsibilities….that brings me to my second thought…’The People’….
Second, the founding papers completely empower each citizen – they own the begining and the end of the political process. Our political leaders are turned around in that thinking today. Americans are engaged and ‘owning’ their role to govern…we can/will change the political mindset and landscape in DC and around this great country.
Go Team USA!!

Susan Craig says:
May 19, 2010 at 1:57 pm
That is a symptom, Charles. What I would have liked defined was that rather vague commerce clause that has allowed the Fed to homogenize what was potpourri. Before if you did not like the way Massachusetts regulated its business, you could choose from any of the established States or explore into the territories. Now its Massachusetts or Massachusetts lite.
I would have liked a more elaborated upon clause. My suggestion, States may order commerce within their borders as they see fit. Should disagreements arise between States in the conduct business the Federal will act as Good Faith arbiter to facilitate and promote the smooth conduct throughout the country. Not exactly a legal beagle but I think something like this would have kept the SCOTUS from declaring wheat grown on private property for private consumption under the jurisdiction of the Federal Government by virtue of the Commerce Clause in the Constitution.

Ron Meier says:
May 19, 2010 at 3:59 pm
Too bad the creators of the EU didn’t read the first 20 or so FP before creating the EU. Had they done so, they wouldn’t have let some members in and they would have instituted some kind of enforcement mechanism. More likely, the EU would not have been created, since the prospective initial members would not have approved the sanctions for misbehavior.
re Charles’ comment about the sheer volume of legislation, to say nothing of the thickness of each individual piece, when our legislators run for reelection, they have to demonstrate that they were in attendance for xx% of all votes, the higher the better. If someone has a lower than acceptable percentage, then the opponent runs negative campaign ads demonstrating that the legislator is not doing his or her job. I submit that it might be better if our legislators would spend more time deliberating on the really important legislation and skip showing up to vote for legislation that they know nothing about and that is not critical to survival of our nation. As our Attorney General and Director of Homeland Security have just demonstrated, they don’t even have time to read a simple 10 page piece of legislation (Arizona’s law), yet they feel qualified to speak authoratatively on the law they haven’t read. Our legislators are in similar constraints and likely have staff read certain portions and give them briefings; I doubt they even read legislation they propose.

Carolyn Attaway says:
May 19, 2010 at 4:04 pm
Nickie, I too picked up on the citizen empowerment theme toward the end of this paper. There were several parts that begged to be read out loud, but two statements caught my eye, and I had to read them several times to absorb the impact of their words: “An experiment of this nature would always be hazardous in the face of a constitution in any degree competent to its own defense, and of a people enlightened enough to distinguish between a legal exercise and an illegal usurpation of authority . . . . If the people were not tainted with the spirit of their State representatives, they, as the natural guardians of the Constitution, would throw their weight into the national scale and give it a decided preponderancy in the contest.”
The first statement contained the sentence a people enlightened enough to distinguish between a legal exercise and an illegal usurpation of authority. I find this choice of words interesting given that enlightened means to have intellectual or spiritual light; and usurpation of authority means illegal seizure and occupation of a throne. How true do these words ring today that the people must remain vigilant of their government and the laws that are passed unto the citizens themselves less they become subjects to the throne of government through unconstitutional laws and practices? Are we not experiencing a degree of this usurpation of authority today? Is one of the main reasons we gather daily on this web-site is to renew our vigilance and become enlightened with our founding documents?
The second statement reiterates this theme with the words as the natural guardians of the Constitution would throw their weight into the national scale and give it a decided preponderancy in the contest. In Paper 15 Hamilton tells us that the only proper objects of government are the persons of the citizens, so it stands to reason that they would be the natural guardians of the Constitution. And being guardians they would have the decided preponderancy; superiority in weight; power, to defend the Constitution against illegal practices on either State or Federal levels to ensure its authority. We, as citizens of the United States, are charged with this duty.
I find these words amazing.

yguy says:
May 19, 2010 at 4:55 pm
“What I would have liked defined was that rather vague commerce clause that has allowed the Fed to homogenize what was potpourri.”
However vague it may be, there is no way it can be reconciled with Wickard v. Filburn (1942), wherein SCOTUS held that a person not engaging in commerce could be penalized under color of the commerce clause.

Jimmy Green says:
May 19, 2010 at 5:34 pm
Interesting that Hamilton’s belief of state delinquencies in a confederacy would result in civil war.
Yet less than a century latter a civil war between the states would arise under a constitution that Hamilton felt would prevent it.
I believe Hamilton’s desire for a constitution that must be able to legislate over the state and citizens is an implicit understanding of the nature of any true Federal System. The problem is the balancing act between a sovereign state jealously protecting its states rights and an federal government with certain enumerated powers over the sovereign states. Hamilton’s view of the powers of the federal government often seem like a dark cloud on the horizon. Granted the federal government in order to maintain the union has to exercise a degree of control over the states and citizenry.
However this is done via our elected officials in the congress. The States and peoples views are expressed through them such that hopefully any federal legislation is not unseemly harsh on the state or citizens as if they were blindsided. Hamilton’s writings seem somewhat of a dark nature and come across to me as someone who places state sovereignty a distant second to federal prerogatives. However reading the founding documents will show that states vigorously enforcing state rights its necessary to prevent that which Hamilton believes will occur under a confederacy.
Its good that Hamilton recognizes that the states should definitely intervene if the feds legislation becomes a “tyrannical exercise of the federal authority”.
However that’s an extreme viewpoint with most government tyrannies today being a rather long affair that slowly change the country with most of the citizens unaware of the slo-mo tyrannical creep. Interesting read.

Andy Sparks says:
May 19, 2010 at 7:29 pm
Jimmy, I think you hit the nail on the head with Hamilton. Remember he was born and grew up in the British West Indies. He didn’t come to America until he was 17, so he had no loyalty to any particular state. While he was educated and settled in New York, he joined the Continental Army only a few years later. What better place to gain an interstate perspective than in the army. Under Washington’s tutelage, he quickly learned about the deficiencies of the Congress under the AOC during the war in regards to raising troops, supplies, and other necessaries to keep the army going. I think any reference he makes to state power is so to appear not too enthusiastic for a national government. After all, he is trying to convince those moderate anti-federalists to vote for ratification. If it were up to him, he would have preferred a British style government; in fact his detractors referred to him as a monarchist while he headed the Federalist party.

Barb Zakszewski says:
May 19, 2010 at 8:59 pm
Both Hamilton and Madison seemed to have crystal balls at times, with their keen ability to look 100-200 years into the future. Hamilton argued that the Articles of Confederation could eventually set of a “civil war”..Yet 75-80 years after Ratification of the Constitution, the United states was involved in a “Civil War”…the War for Southern Independence. Although this war was considered to be chiefly over slavery, it was a war also for States Rights, for the 10th Amendment..Many of the things Hamilton predicted in Federalist 16 actually came to pass, by then, and that is what got things started.
As for comments made towards the end of the paper, Hamilton is saying that citizens will tolerate a lot from their government, unless government evolves into a tyranny, similar to what is happening today with the Socialist President and Congress we seem to find ourselves with. I believe there is a tie in to what Hamilton says here and the part in the Declaration of Independence that warns when government sinks to absolute despotism, it is our right and duty to throw off such government and provide new guards for our future security.
The more involved I become in this project, the more I can see where the Nation is going now; we must educate ourselves our families and our friends so that we can fight this and reclaim our Great Country!! The Founding Fathers, rather than being irrelevant as many Liberals think, are becoming more relevant with each passing day. We MUST listen to what they have to say.
God Bless this Great Nation!!

William Matthews says:
May 19, 2010 at 8:59 pm
No one has mentioned this, but under the Constitution Senators were selected by their states not like they are elected today. Before a bill could become a law, each of the states two senators had a chance to weigh in on it. In essence the states had actual representatives in the national government and states could actually control much more how their Senators voted. So perhaps when Hamilton is referring to the Constitution being superior he’s also meaning that states get to exercise their influence without needing to individually approve each law?

Jimmy Green says:
May 19, 2010 at 9:00 pm
Thanks for the input Andy. I plan on reading Hamilton’s autobiography in the near future to gain a better insight on him. Sadly as I’m living in the peoples republic of California, the founding fathers and the founding documents are not rated very highly. But there is hope that one day it will.

Susan Craig says:
May 19, 2010 at 9:14 pm
I think we have a lot to thank or accuse Rhode Island for. If they had not refused to consider ratifying any and I do mean any amendment to the Articles of Confederation how different a picture this would be.

Constituting America says:
May 19, 2010 at 11:45 pm
I want to let you know that I have begun a short film with my daughter for my “Daily Behind the Scenes Videos.” Tonight is Part 1. Check it out. The link is on the website on the home page or the link to the YouTube version is on the Constituting America Facebook Page. It’s going to be fun! I direct these and edit them on my computer nightly – with the help of my daughter, of course. The goal of these videos is to enlighten American citizens about our great United States Constitution, our “90 in 90” and our “We the People 9.17 Contest” so, spread the word!
Here we are at Federalist Paper No. 16! I want to thank Marc S. Lampkin for joining us again today. We are so lucky to have your scholarly insights, Mr. Lampkin!
Alexander Hamilton’s quote, “When the sword is once drawn, the passions of men observe no bounds of moderation,” speaks volumes. First of all, it is how Alexander Hamilton died, in a dual of passionate discord with Aaron Burr. Secondly, I can’t help but find relevance in these words regarding the situation in Arizona. The more I read, absorb and learn about our United States Constitution, the more I start seeing all aspects of our current political environment through Publius’ eyes –
their reasoning, their framework – which, of course, is the whole point of our “90 in 90.”
“When the sword is once drawn, the passions of men observe no bounds of moderation,” starts to make more and more sense to me when I witness, with the rest of America, the friction between our “United States”, Arizona and California. It was experienced over two hundred years ago, has happened throughout our history and it is happening today – “faction.” What we are experiencing as a country is a sample of what would have happened if we had not ratified our Constitution. There would have been no way to keep the peace and find a unity in vision and mutuality of purpose.
Thus, my current assessment is that the cohesiveness of a Federal government served and should continue to serve its purpose in certain areas – one of those areas is the defense and protection of her states.
Thus, the question begs the answer. Why hasn’t the Federal government protected her border states? Yes, states have rights, and yes, the Federal government has grown way beyond our founding father’s intentions but in this instance regarding defense, the federal government should have stepped up to the plate. Arizona has been left to fend for herself and is getting abuse from all angles.
Consequentially, we are witnessing state against state – accusations, misinterpretations – faction. Will California boycott her ally? Will Arizona turn her brother’s lights?
“When the sword is once drawn, the passions of men observe no bounds of moderation.”
Let us experience the freedom, uniqueness and independence as individual states yet, the unity of brotherhood as a country. Once the sword is drawn where will the passions end? Discourse is an enticement. United we stand. Divided we fall. Has this not been the theme of these Federalist Papers?
God bless,
Janine Turner
May 19, 2010

Roger Jett says:
May 19, 2010 at 11:45 pm
As I have been reading day-to-day the many comments posted to this wonderful forum, I’ve come to appreciate how well read many of you are. It challenges me to study, learn and evaluate how our nation’s Founders strove to provide us with the best government possible. It was not easy for them to establish it, nor will it be easy for us to do our part to restore what has been largely lost. I too find myself at that point that Susan Craig described earlier today, after having read a lot of the writings from the time of the “Declaration of Independence” through the second term of George Washington’s Presidency, she finds herself squarely between the two factions on the issues of the day. As I have read a number of the arguments presented by Jefferson, Mason and Henry, I find myself influenced by points that they made. I don’t find that troublesome …. I do find it most helpful in obtaining a more balanced understanding and more informed opinion. I don’t always find myself agreeing with all that gets said on this forum, but I believe that the process has challenged me to evaluate what I think is right, true and has caused me to grow a little more strong and firm. Thank you Janine, Cathy and all the rest of you who participate. May God bless you all !

Constituting America says:
May 20, 2010 at 1:35 am
May 19, 2010 – Federalist No. 16 – Cathy Gillespie
A big thank you to our guest blogger Marc Lampkin! Marc, thank you for guiding us today!
I so appreciate all of you who take the time to comment. You often see nuggets of wisdom in these papers that I have glossed over on my first reading, and your posts send me scrambling back to find the phrases you elaborate on.
Two phrases jumped out at me upon my first reading of Federalist 16, though, and they are the same mentioned by Nickie and Carolyn:
An experiment of this nature would always be hazardous in the face of a constitution in any degree competent to its own defense, and of a people enlightened enough to distinguish between a legal exercise and an illegal usurpation of authority. The success of it would require not merely a factious majority in the legislature, but the concurrence of the courts of justice and of the body of the people. If the judges were not embarked in a conspiracy with the legislature, they would pronounce the resolutions of such a majority to be contrary to the supreme law of the land, unconstitutional, and void. If the people were not tainted with the spirit of their State representatives, they, as the natural guardians of the Constitution, would throw their weight into the national scale and give it a decided preponderancy in the contest. Attempts of this kind would not often be made with levity or rashness, because they could seldom be made without danger to the authors, unless in cases of a tyrannical exercise of the federal authority.
“A people enlightened,” ”natural guardians of the Constitution”
“We the people,” are the natural guardians of the Constitution, because as our country drifts from the Constitution, it is “We the people,” who have the most to lose. If we are not “enlightened,” to understand what we had, and have, we will certainly not know what we have lost, and are losing. And our children will understand even less than us. We must not only enlighten ourselves, but enlighten our children, so the torch of freedom may be passed to the next generation of Americans. Watch Janine’s Behind The Scenes Videos starting today, as she teaches her daughter about the Constitution in a several part series! http://www.youtube.com/watch?v=XGpmqkx1_JQ
I am both amazed, and a bit embarrassed to admit how much I am learning through this exercise. I graduated from Texas A&M University with a B.A. in political science, yet I don’t recall ever picking up the Federalist in college. This reading is my first time through these prescient papers. Tonight, I feel empowered that I am becoming “enlightened,” and that the founding fathers considered us – ‘we the people” – to be the guardians of the Constitution. The more I learn, the better I can guard it! And the more I can teach my children! On to Federalist No. 17!
Good night and God Bless,
Your fellow guaridan of the Constitution,
Cathy Gillespie

Dave says:
May 20, 2010 at 1:41 am
Here’s how I see No. 15 and No. 16. Hamilton is laying the foundation of his argument for ratification and basing it on man’s actual experience through history of forming civil governments, human nature, and most importantly for his argument, the actual experience the Americans had with the government under the Articles of Confederation. I need not repeat his parade of horribles here. He had to convince the New Yorkers that the current system was making their lives miserable whether they knew it or not, and that a strong, energetic, centralized, national government was the answer to all their prayers. If they would just stop being so biased towards their narrow, local interests. He assures them that the states will retain their due sovereignty, but the national government will be the supreme sovereign concerning the national objects under its authority.
The new plan would be different in significant ways from the failed confederations of the past. Those alliances always broke down in predictable ways because they were not consonant with human nature. If I may jump ahead an essay, in No. 17 Hamilton tells us:
“It is a known fact in human nature, that its affections are commonly weak in proportion to the distance or diffusiveness of the object. Upon the same principle that a man is more attached to his family than to his neighborhood, to his neighborhood than to the community at large, the people of each State would be apt to feel a stronger bias towards their local governments than towards the government of the Union; unless the force of that principle should be destroyed by a much better administration of the latter.”
We care more about that which is close to us, and we should. Hamilton wants us to give up some of that local care and concern and cede it to the national government in our own enlightened self-interest. And up to a point I think he’s right.
I would caution vigilance for the corrupting influence of power, for the tendency to be profligate with other people’s money, and mission creep. If the national government had stuck to the plan of being a limited government of enumerated powers, and if it had not spent decades and decades trying, and failing, to be all things to all people, we might not be in the sorry state we are in now.
The Founders saw the states within the new plan as laboratories of democracy. Some states’ experiments would be successful and emulated; other states’ experiments would be colossal failures and be rejected, or at least should be rejected (think CA, MI, and NJ.) In this way, mistakes would stay local and not doom the entire republic. The fiscal black hole some states, cities, and corporations are in has been caused almost exclusively by bad legislative, economic, and business decisions. Bailouts using taxpayer dollars to reward imprudent local decisions creates what economists call a moral hazard and offers exactly the wrong kind of incentives with other people’s money, our money.

Dave says:
May 20, 2010 at 3:15 am
Andy, good points about Hamilton the man. I tend to bask in the glow of his brilliance and genius (he was only 30 or so in the summer of 1787,) but then I force myself to consider what aspects of his psychology and life experiences could be influencing his thoughts on government. Madison’s notes of the Federal Convention have Hamilton laying out his plan on June 18. An executive elected for life with supreme veto power? How could he think that was a good idea?
Jimmy, you had written yesterday, “I would be more interested in Hamilton’s views on what should occur if the Federal government fails to uphold its enumerated powers.” That’s exactly what I’ve been wondering. The three branches of our federal government seem to have come to the conclusion that it’s just too much trouble to get the people to act in their constituent role as the “natural guardians of the Constitution” and amend the Constitution; they, our “agents and trustees” (No. 46) just ignore the Constitution and work their way around it, but they do make sure to pay it lip service at the appropriate times.
With the benefit of hindsight, I am amazed at how often in the papers, Publius warns us of what, to him, was the major threat to liberty. He thought the abuse of power would come from the states. After all, the federal government is a creature of the states or a servant of the states. It could never be the case that the creature would supplant the creator or the master would become the servant. Oh really? And something else that still troubles me in the federal system that they were proposing, with its dual sovereignty in different spheres and even with its guarantee of republican government in the states—What is to be done when a state exhibits tyrannical tendencies and is technically not in violation of the Constitution, but is in violation of the founding principles located in the Declaration of Independence? How was the slavery issue to be resolved? Abortion?
Last thought: For the new federal plan to work, the Framers had to have some presuppositions in mind about man and about the world. Were any of the presuppositions necessary for the perpetual success of the union under the constitution to be ratified? And would it be the case that any state of affairs not including those requirements would spell doom for the union.

Guest Blogger: William C. Duncan, director of the Marriage Law Foundation

Thursday, May 20th, 2010

One of the most significant criticisms of the proposed Constitution was that it would eviscerate the autonomy and authority of the individual States. As Alexander Hamilton described it, the argument was that the Constitution “would tend to render to government of the union too powerful, and to enable it to absorb those residuary authorities, which it might be judged proper to leave with the states for local purposes.” While some today would not think of that as a weakness, this criticism was important because both the Framers and many of their contemporaneous critics believed that functioning States were crucial to ordered liberty. Thus, the Constitution provided that of all the appropriate objects of government authority, only a small and specifically identified set would be delegated to the national government, by the States.

So, in Federalist 17, Alexander Hamilton could respond to the criticism by arguing that the threat actually goes the other way (that the States might interfere with the proper ends of the national government). He supported his arguments for the likely predominance of State power by noting that: (1) the enumerated powers of the national government (commerce, finance, negotiations, war) will likely be very alluring targets for people driven by ambition so they won’t bother with the larger set of issues regulated by States, (2) meddling in local concerns would likely create enough trouble for the national government as to make doing so undesirable to national officials, (3) the people of the States would not likely stand for the usurpation and they are the constitutions of the national government.

In support of this last point, Hamilton notes that it accords with human nature: “It is a known fact in human nature, that its affections are commonly weak in proportion to the distance or diffusiveness of the object.” Thus, “a man is more attached to his family than to his neighbourhood, to his neighbourhood than to the community at large” so “the people of each state would be apt to feel a stronger bias towards their local governments, than towards the government of the union, unless the force of that principle should be destroyed by a much better administration of the latter.” The States also have the important advantage of being responsible for matters “of criminal and civil justice” which make them “the immediate and visible guardians of life and property.” The national government, dealing only with “more general interests” that are “less immediately under the observation of the mass of the citizens” is “less likely to inspire a habitual sense of obligation, and an active sentiment of attachment.” Since the States “will generally possess the confidence and good will of the people” they “will be able effectually to oppose all encroachments of the national government.”

Hamilton’s analysis is persuasive but might seem a little alien in a climate where the national government increasingly dominates not only the objects of proper governmental authority but areas of life the Framers would not have contemplated government would regulate. Nevertheless, Hamilton does hint at a motivation for this dramatic incursion of the national government. Thus he notes that hypothetically “mere wantonness, and lust for domination” could lead national leaders to desire to interfere in State prerogatives. He believed, however, that the political process would turn back any such incursions since the States, with the support of their citizens, would “control the indulgence of so extravagant an appetite.”

Why has this check not been more effective? Perhaps it would have been if the sole threat to the notion of a national government of limited powers was the personal ambition of national leaders and others who might have a financial stake in government functioning. A more menacing challenge, however, was developing in Europe at the time of the Framing but which had not taken root in the fledgling United States. This was the emergence of ideology and its attendant schemes for improving not only the administration of traditional government functions but rather human nature itself. The scope of such an ambition obviously would not be confined to interstate commerce and international relations but would also contemplate the objects of State governments like criminal and civil justice. In this project, the States have too often been complicit in order to secure largesse from the national government. Then, as the province of the power of the national government expanded, the subjects which might tempt ambitious individuals and financial speculators multiplied and created interest groups with a strong incentive to continue national involvement in traditional State concerns.

The best hope to change this state of affairs is a return to the modest scope of national power and the reemergence of robust State authority.

Mr. Duncan is director of the Marriage Law Foundation (www.marriagelawfoundation.org). He formerly served as acting director of the Marriage Law Project at the Catholic University of America’s Columbus School of Law and as executive director of the Marriage and Family Law Research Grant at J. Reuben Clark Law School, Brigham Young University, where he was also a visiting professor.

33 Responses to “May 20, 2010 – Federalist No. 17 – The Same Subject Continued: The Insufficiency of the Present Confederation to Preserve the Union, For the Independent Journal (Hamilton) – Guest Blogger: William C. Duncan, director of the Marriage Law Foundation”

Carolyn Attaway says:
May 20, 2010 at 8:06 am
I appreciated Mr. Duncan’s insight into Paper 17, and realized as I read his analysis of Mr. Hamilton’s writing, that where the Paper was to warn of the dangers a very robust State may have on National authority; today we see the reverse to be true, where a robust National authority usurps the State’s power.
During Hamilton’s time, the men in Congress served part-time and worked a great deal in the private sector. So when Hamilton writes ‘relating to more general interests, they will be less apt to come home to the feelings of the people; and, in proportion, less likely to inspire an habitual sense of obligation, and an active sentiment of attachment’, I realize how far we have come from the framers original intent. Today our representatives in Congress are full-time delegates; many never having worked in the private sector, making laws over citizens with no sense of reality as to what it takes to survive in mainstream America.
This part of our framework I fear is broken. I believe our founders never intended Congress to be so removed from their citizens, taking on the role of knowing what is best for their constituents, and making laws without their consent. The Great Cement of society has cracked.
I enjoyed Hamilton’s reference to the feudal systems of Great Britain. Being an avid reader of that period of time, I could visualize the struggles between the feudal baronies and clans, not only against the crown, but with each other, and within each group of people. Hamilton writes ‘the separate governments in a confederacy may aptly be compared with the feudal baronies; with this advantage in their favor, that from the reasons already explained, they will generally possess the confidence and good-will of the people, and with so important a support, will be able effectually to oppose all encroachments of the national government.’
Again, during Hamilton’s time, I believe this statement had greater import, but today with the States giving the Federal Government so much of their power, they do not retain a great deal of the confidence and good-will of their citizens. Many of their citizens do not realize that a lot of the entitlements that they receive from the State are due to monies being received from the Federal Government in exchange for State authority. And if they do realize it, how many of them understand the consequence?
With the ratification of the 17th Amendment, I believe the power of the State diminished.

Charles Babb says:
May 20, 2010 at 9:00 am
Thank you Mr. Duncan, for that synopsis and for your analysis. Hamilton seemed to miss one “fact of human nature” regarding “its affections”; that is the one of individual and collective greed. “In this project, the States have too often been complicit in order to secure largesse from the national government.” We’ll give back some of your citizens’ tax dollars, for school construction as long as you agree to teach your children what we tell you to teach them.
And it could not be said better; that, “The best hope to change this state of affairs is a return to the modest scope of national power and the reemergence of robust State authority.”
What is needed now is a plan to accomplish that goal.

Susan Craig says:
May 20, 2010 at 10:52 am
While I grant that Hamilton’s point of view has merit from the divisiveness that comes from internal squabbling. But what happens to the country when the abuse comes from the other direction? What happens when the greed and power hunger abuses the intent of the enumerated powers? In Federalist 17, Alexander Hamilton responds to this by arguing that the threat actually goes the other way (that the States might interfere with the proper ends of the national government). He supported his arguments for the likely predominance of State power by noting that: (1) the enumerated powers of the national government (commerce, finance, negotiations, war) will likely be very alluring targets for people driven by ambition so they won’t bother with the larger set of issues regulated by States, (2) meddling in local concerns would likely create enough trouble for the national government as to make doing so undesirable to national officials, (3) the people of the States would not likely stand for the usurpation and they are the constitutions of the national government.
Today I don’t see much of that but I do see a lot of usurpation of State, local and individual rights by the Federal Government, this I think is a result of ignorance and laziness on the part of the individuals.

Linus Behne says:
May 20, 2010 at 1:04 pm
Boy, I sure wish that Alexander Hamilton was correct about the national government staying out of the business of the states. Hamilton would be shocked if he came back to life today. The Federal government wants to stick its’ nose into everything.
One of my favorite lines from Fed 17: “It is therefore improbable that there should exist a disposition in the federal councils to usurp the powers with which they are connected; because the attempt to exercise those powers would be as troublesome as it would be nugatory; and the possession of them, for that reason, would contribute nothing to the dignity, to the importance, or to the splendor of the national government”.

William Duncan says:
May 20, 2010 at 1:54 pm
Thank you for these excellent comments. I am much from your responses and am glad the essay sparked these thoughts.
I agree that our situation now is pretty grim in terms of centralization of power in the national government. One thing that I believe would make a difference is for states and individuals to resist the temptation to accept federal funding in some instances.

William Duncan says:
May 20, 2010 at 1:56 pm
The first sentence in the second paragraph of my comment should have read “I am learning much.”

Susan Craig says:
May 20, 2010 at 2:08 pm
How I wish that today’s iteration of our ‘Constitutional’ government would think that the usurpations were “nugatory” (of little or no consequence: trifling, inconsequential: having no force: inoperative: synonym – vain)

Carolyn Attaway says:
May 20, 2010 at 2:09 pm
Susan, I agree with you to some degree on the ignorance of the individual due to the lack of correct US History being taught in the public school system, however; I do not concur with the word laziness. The majority of Americans today are very hardworking people, many taking several jobs to keep afloat, and I think that is the crux of the problem. So many people are on auto pilot in political matters of our country, and do not have the time nor energy to keep up with all that is happening today. Many people work long hours and only look for a small reprieve from their work by the end of the day/week. Others honestly thought that the problems we are experiencing today never could happen.
I heard a current poll today that asked if you were satisfied with the direction the country is going. Only 23% of the people polled agreed, the rest were deeply dissatisfied. I think we can safely assume that the 23% is from the left who have very liberal agendas.
I believe with every day that goes by, more and more people are finding the energy and the courage to take a stand. Now if we could get our representatives in Congress to do likewise.

Maggie says:
May 20, 2010 at 2:11 pm
I don’t think that Hamilton ever envisioned things going so far in the opposite direction because it has always been the American Spirit to work hard for what we have. We have become a nation full of people with our hands out. When you expect others to take care of your every need without working for it yourself, you give up many rights in return. We the People have handed our rights over, slowly but surely because we have become lazy and complacent.

Ron Meier says:
May 20, 2010 at 2:43 pm
As others have noted, the current situation is greatly different from what could have been anticipated 200 years ago. States have allowed themselves to have their authorities and powers over certain areas of responsibility be minimized by federal mandates on a whole host of areas. As a consequence, the states have allowed themselves to become dependents of the national governmennt. Today, we see that many of the most populous and powerful states are in a state of almost permanent weakness, due to their own fiscal mismanagement, and thus are not able to take back what the federal government has taken away; they are responsible for all that is wrong in their states, but the federal government holds the reins of authority, and the states have no power to correct anything. Effectively, the states have been neutered in small bites by the feds.
Therefore, it is now up to the people. It seems that many of us have intuitively realized that the states cannot and will not fight back, and that is the genesis of the tea party movement. This movement is unfolding and untested, and we won’t know if it can effectively take back what has been taken from us over a hundred years. I remember Warren Buffett saying recently that “we have been selling our country to foreigners a little bit at a time.” Indeed we have; we’ve also been selling our individual and states’ rights a little bit at a time. Each tiny step didn’t hurt at all, so we kept selling. Now, while the individual steps were no problem, the cummulative effect of those tiny steps is killing us. Kinda like smoking; pleasurable over many years, but fatal sooner than hoped.

Will Morrisey says:
May 20, 2010 at 3:06 pm
I think that Hamilton’s key point is that the original design or structure of the U. S. federal system gave the states the means of resisting federal-government encroachment. The centerpiece of this was the Senate. Recall that the senators under the original system were not elected directly; they were appointed by the state legislatures. Quite often, those legislatures would sent `their’ man to Washington with expressly-stated directives on how to vote. Contrast this with the system brought in by the Progressives, under the Seventeenth Amendment. From then on, a U. S. Senator simply did not need to worry much about any directions or resolutions from his/her state legislature. A Senator’s political `power base’ is quite independent of the legislature of his home state. This is one major reason why federalism doesn’t work as intended. It’s not Hamilton’s fault, or the fault of any of the founders. It’s a much later development.

Constituting America says:
May 20, 2010 at 3:50 pm
Where did we go wrong as a country that we let the Federal government overtake the states? This was obviously not the intent of our founding fathers. As explained in Federalist Paper No. 16, the communities and local passions were to always be the stronghold against the homogeneous nature that springs from a Federal formation.
Obviously, Alexander Hamilton could envision great commerce and industry from such a fastidious people as Revolutionary Americans, but how could he see the vast transformation of communication and transportation? From his post in the 18th century, the local influences and perspectives were dominant, and the national sways were secondary.
He could not imagine the amazing feats in engineering that would revolutionize transportation broadening the horizons of the people. Nor could he foresee the formidable transformations resulting from the inventions of the telephone, radio and television. With this occurrence, the states lost their uniqueness, the people their distinctness and the federal government gained power – a shift occurred.
But was this enough to open the door for the Federal government to eat away at the core of the states’ powers?
What gave the Federal Government the power to encroach? Perhaps it was the Constitutional Amendment XVI – Income Taxes. What was the incentive that enticed the people to forfeit their individuality and their rights? Subsidies – the spoon-feeding mentality that usurped the American “can do” spirit.
The slippery slope began. Alexander Hamilton stated in Federalist No. 15, “When the sword is once drawn, the passions of men observe no bounds of moderation.”
Perhaps it should be, “When the sword of taxes is drawn, the passions of government observe no bounds of moderation.”
Knowledge is power. With the awareness and education of the true intention of our United States Constitution, the American spirit will be revived and the people will recognize the power of their vote. Our Republican form of government offers the way to rectify.
To quote Alexander Hamilton, “There is one transcendent advantage belonging to the province of state governments, which alone suffices to place the matter in a clear and satisfactory light.. I mean the ordinary administration of criminal and civil justice.”
The criminal and civil justice belong to the states.. something to ponder.
God Bless,
Janine Turner
May 20, 2010
P.S. I thank William C. Duncan for joining us today and for his insightful essay! Thank you, Mr. Duncan!

Susan Craig says:
May 20, 2010 at 4:09 pm
The ‘laziness’ I was alluding to was not that of hard labor but of intellect and inquiry. Our propensity to go along to get along. The laziness is in trusting what the ‘talking heads’ and politicians say not digging into the details of what is behind the pretty sounding titles and sound bites. My current example of this is the trust we had when the ‘talking heads’ and politicians said that the passed version of “Health Care” [prime example of a misleading title] did not contain a public option – THEY LIED! It is there just buried in the care of the Director of the Office of Personnel Management (Section 1334, pages 97-100).

Dave says:
May 20, 2010 at 4:24 pm
Carolyn, well said. You got me thinking about how different public officials and citizens were in Hamilton’s time compared to today. Citizens were probably not as mobile back then, so when they settled on a place, it was a place where they would invest considerable time and resources. Early Americans must have been very attached and loyal to their local communities and states. They knew that any public improvements would be improvements they would enjoy for many years, so public projects were heavily supported locally (no stimulus money needed back then.) How loyal to their local communities are today’s representatives of the people. They are in Washington more than their home states. They won’t even meet with constituents for town hall type meetings. They vote for social policies even when their constituents are against them 5 to 1 or even 10 to 1. How loyal were the Clintons to Arkansas? How many politicians sell out their states to obtain a federal post? From how many laws do the federal legislators exempt themselves? Arlen Specter wanted power so bad he switched parties and abandoned any principles he may have had.
As I read No. 17, I kept writing in the margin “wrong.” Hamilton had certain expectations of how things would play out. Evidently modern man has become much more imperfect and degraded than Hamilton could ever conceive. It’s obvious to me Hamilton has a blind side. He cannot envision the general government being the source of infringements on individual liberty. Granted the states at the time were not bastions justice and magnanimity, and something had to be done.
Hurray Charles. I’m sick and tired of what Ronald Reagan, many years ago, called the money merry-go-round—citizens compelled to send their hard-earned tax dollars to Washington, only to have it trickle back to their state at the whim and behest of federal bureaucrats. Federal money is for FEDERAL PROJECTS duly enacted that benefit the whole republic. Spending federal dollars on non-federal projects is unconstitutional.
Reps have a duty to protect their state’s enlightened self-interest and constitutional sphere of state authority on behalf of their constituents. This duty I’m suggesting is not to imply an abrogation of a state’s federal responsibilities, nor is there any implication to disparage or diminish the constitutional prerogatives of the federal government or those of the 49 other states. What cannot be allowed to continue is for the states, and the state actors, to continue to accept the role of mere agents for the federal government. Madison in Federalist No. 46 puts the agency relationship in the proper perspective: “The federal and State governments are in fact but different agents and trustees of the people, constituted with different powers and designed for different purposes.” In a nutshell, local money, to the greatest extent possible, should stay local for local purposes.
My thanks to Mr. Duncan.

Dave says:
May 20, 2010 at 4:44 pm
Thanks for bringing up the Seventeenth Amendment Professor Morrisey. What was it that sold the Amendment to the states? Why would they give up such a key component of federalism and a check on the passions of the people’s house with a different scheme of composition for the senate?

Carolyn Attaway says:
May 20, 2010 at 4:57 pm
I think it is more stupid arrogance of our elected officials. When in any other time of history would you have heard these responses:
“Many senators and congressmen have taken offense to the idea that they read these bills.
Representative John Conyers didn’t know what the point was in reading it because he wouldn’t understand it anyway.
House Majority Leader Steny Hoyer laughed at the idea of reading the health-care bill saying, “If every member pledged to not vote for it if they hadn’t read it in its entirety, I think we would have very few votes.”
Representative Henry Waxman admitted he didn’t know the details of his own Cap and Trade bill.
And Senator Arlen Specter said they couldn’t read the whole bill, because they have to “make adjustments very fast.” Link:http://www.redcounty.com/note-representatives-us-constitution-should-be-your-guide
More constituents knew what was in the HC Bill than Congress did. I do agree many constituents are lazy when it comes to researching their candidates before voting for them; but hopefully this Novemeber that won’t be a problem!

Dave says:
May 20, 2010 at 5:48 pm
Susan, nihil sub sole novum (nothing new under the sun.) Jefferson had this in the Declaration of Independence: “all experience hath shown that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed.” Hard-working Americans have been hard at work supporting themselves and their families. As individuals they give time and money to their churches, charitable organizations and to the community. They never saw the slow switch when public offices became places of profit instead of places of honor. Hard-working Americans have been too busy to be political activists and “organizers.” I think they’re realizing quickly that they cannot afford to be too busy too much longer.
I think the masses have become too accepting of pronouncements from a self-anointed elite class. Universal healthcare? Let’s see, Social Security, Medicare, Medicaid, PGBC, Amtrak; failure, failure, failure, failure, and failure. Why would anyone think the government being everyone’s doctor is a good thing?
The moral fabric of Americans having become frayed, Americans have succumbed to the siren song of the free lunch. Too many Americans think it is morally acceptable to have others provide for that which they can, but refuse to, provide for themselves. I love Janine’s
line about America being built by Americans, not with their hands out, but with their hands at work. Contrast that with Nancy Pelosi’s recent utterance about the healthcare bill: ““We see it as a entrepreneurial bill – a bill that says to someone, if you want to be creative and be a musician or whatever, you can leave your work, focus on your talent, your skill, your passion, your aspirations because you will have health care.”
So, if the marketplace has determined that you really suck at something, no worries, the taxpayers will subsidize your “artistic efforts.”

Jimmy Green says:
May 20, 2010 at 6:43 pm
Hamilton’s arguments that the Federal Government would never usurp the States sovereignty in its laws simply due to the lack of interest or as Hamilton states “can never be desirable cares of a general jurisdiction”. is something I agree with not because of a lack of desire by the fed’s but rather a restraining system of checks and balances working properly to enforce this restraint. Power generally begets more power when it can and Hamilton knew this so a simple belief the Feds would have no further interest to usurp state sovereignty regardless of a constitution seems week at best.
This paper seen in the perspective that the constitution will work as written would in effect allow everything Hamilton wrote in essay 17 to work as so written. In that context I agree with Hamilton and we could rewrite essay 17 as essay common sense.
Our attachments are greater to those nearer. Our bias would be towards our State. Even the state criminal and civil laws or justice will bind the people to their states. “Unless you’re guilty.” Okay all common sense.
The exception is Hamilton’s belief that the feds need to worry more about the states encroachment on the fed. The congress will be enacting “federal” legislation and since the “federal” courts will determine the constitutionality of the “federal” laws vs. the states.
I would have thought this alone would give Hamilton pause in his belief on the reality or not of state encroachment.
Hamilton upbringing and early adulthood probably colored his view differently from the average Americans as some have pointed out to me.
Also the essays were written to achieve consensus in New York on ratifying the constitution so some liberties may have expressed Hamilton’s desire but not actual beliefs.
I’m curious to know if Hamilton believed there was a threat to state sovereignty or if he cared. He understood the corrupting influence of power. The drive of power for powers sake and the inherent jealousy and ambitions to abuse the common man in pursuit of power. Yet he seems devoid of understanding that when the Federal Government is left to determine the constitutionality of any law against a sovereign state through the federal governments own federal courts that your only asking for trouble. The final arbiter of constitutional law is the Supreme Court. Just a bunch of federal “lawyers” sitting around deciding what they believe is write or wrong. If they follow a fairly strict interpretation of the constitution then were all reading from the same play book. Life is fine, the sun shines and the bees buzz. It’s when decisions based on egos or the sudden finding of a hidden meaning in the constitution that no one before them found or god forbid “I want to leave a legacy”. Then the rule book is always changing and we start to look like those feudal systems Hamilton discussed. This was an inherent danger the founders overlooked that we need to remedy today less we move further away from the founding documents.

Susan Craig says:
May 20, 2010 at 8:17 pm
There’s the rub. (to quote a famous Dane). What we have at federal level is not the deliberative body it was envisioned to be. They are trying to be all things to all people and being none to everybody. They are reactive thinking [and I use the term loosely] that we being an instant society need everything done yesterday if not sooner.

Roger Jett says:
May 20, 2010 at 8:34 pm
Dave, You asked earlier in reference to the 17th Admendment, ” what was it that sold the Admendment to the states?”. I think the answer to that question is that it was the desire of the people. Overtime their was enormous dissatifaction over the process of having U.S. Senators elected by state legislatures. Pressure was exerted on both the U.S. Congress and upon the state legislatures to allow their direct election by the citizens. Congress resisted, but state legislatures acquiesced to the will of the people. By 1912, (29) state legislatures elected U.S. Senators via state referenda. It was only after the state legislatures were on the verge of achieving a two-thirds majority in a movement to call for a convention for a constitutional admendment, that congress relented and proposed the 17th Admendment. The Admendment was ratified by 37 out of a possible 48 states with only one state explicitly rejecting it.

Susan Craig says:
May 20, 2010 at 8:46 pm
I don’t know but when it was briefly covered in either my high school or college history courses I think the selling points were supposedly “We the people” are supposed to be the final say in our ‘democracy’ (note how the fact we are a representative republic is not to be spoken) so why should there be another body of our ‘betters’ choosing the most powerful position in the legislature. Somehow they neglected to point out it is the directly elected representatives who have the power of the purse and that legislation at least nominally is to originate from there too.

Will Morrisey says:
May 20, 2010 at 9:47 pm
There had been numerous attempts to amend the Constitution to require direct election of senators; the first such attempt was in 1826. By the time the amendment was passed in 1912, 29 of the 48 states had direct elections `in effect’; that is, they had nonbinding elections, but the state legislators pledged to vote for the top vote-getter. Amendment 17 is one of the Progressive-era amendments; as one would expect, the argument was that democracy in principle should involve direct popular election of legislators. The Heritage Guide to the Constitution has a good, short account of the matter.
Janine Turner adds an important point about the income tax amendment, passed around the same time. These two amendments were characteristic moves of Progressivism: If you are out to build a centralized, modern state, you need big revenue source, such as an income tax (mere tariffs won’t do); in addition, you need political structures that do not in any way depend upon the will of the subordinate political structures in the system. This sets up a system that appears to be more democratic than its predecessor (and in some respects is more democratic) while at the same time funding a bureaucracy that will effectively serve as an UNelected `fourth branch of government’–that is, as a new and oligarchic element in the regime.

Roger Jett says:
May 21, 2010 at 12:55 am
Dr. Morrisey, Many seem to be in agreement that the 17th admendment was a poor decision. I’ve tried to listen and remain open on the matter, as I have evaluated the various arguments for and against it’s ratification. I have to entertain thoughts about where would we be now if we still left it up to the state legislatures to determine who represents in the Senate. Who can say what impact the 17th Admendment has had in the last 96 years or so, but certainly there has been some effect caused by it. What that might be is speculative at best. One point however is that the legislative landscape at the state level has been dominated by one party consistently for a long, long time, while at the national level there has been substantially more balance between the parties in the U.S. Senate. I don’t want to argue that we are always better off if a particular party is in the majority. However, I believe most people recognize that when we have a party that has too large a majority for too long a period of time, then abuses occur. Many Americans breathed a little easier when the balance of power shifted ever so slightly in the Senate this past January. If Article I, section 3, were still in effect , with partisan politics as it is, what would be the status in the Senate. We currently have Republican control over 14 state legislatures and Democrat control over 28 state legislatures. In seven state legislatures neither party controls and apparently Nebraska’s Legislature is considered nonpartisan. In my mind, I see this scenario resulting in at least 56 Democratic Senators and at least 28 Republican Senators, with a lot of contention transpiring in the remaining 8 states over how to decide who gets the remaining 16 Senate Seats. I for one am glad it’s the people who decde.

Dave says:
May 21, 2010 at 12:59 am
This is better than a college seminar. Thanks for all the great comments about the 17th Amendment. I think the amendment disrupted the balance the Founders’ tried to achieve in accommodating the different faculties of men and hence different material conditions as Madison wrote about in No. 10. The Senate seemed to be designed to keep the levelers at bay. But now you have two lower houses, one of which has a 6-year term–let the great leveling begin, for Madison tells us that “the most common and durable source of factions has been the various and unequal distribution of property.” (No. 10) To “the People” of the populism movement who wanted a senate that looked like them, I have one thing to say–”How’s that working out for you? A few years back a study was done of the financial wealth of senators and found that 40 percent of them were millionaires. Not quite a mirror image of the general populace.
Isn’t getting rid of the aristocratic leanings of the senate like Hamilton’s example of when the sovereign and the common people “effected a union between them fatal to the power of the aristocracy[?]” In this context, I can’t help thinking about the title of a history book on the Russian Revolution by Orlando Figes–”A People’s Tragedy.” The people always think they’re going to come out way ahead and they never do.
As I read more and more about our early republic, I’m troubled with a recurring thought–Have we become a people incapable of governing ourselves?

Susan Craig says:
May 21, 2010 at 8:18 am
The more we push self-esteem over self-accomplishment and allow “the devil made me do it” instead of insisting on the self-determination of ones actions the less governable we become. Governance begins with self.

Will Morrisey says:
May 21, 2010 at 9:09 am
Roger Jett makes a key argument. My point is simply that one can’t have two opposite things at once. That is, you can’t have federalism as “The Federalist” conceives it and also have the popular election of senators that has brought greater representation to the Republican Party in the Senate–unless you figure out some other institutional device that would shore up the states by giving them a more direct voice in the federal government. Alternatively, under a system of renewed control of state legislatures over the Senate, Republicans would need to take state legislative elections much more seriously and work to win majorities in them. There would undoubtedly be much more media focus on such elections if more were at stake in them. When it comes to state legislative elections, maybe Republicans have reaped the harvest of their own inattention.

Dave says:
May 21, 2010 at 10:31 am
Roger, thanks for your insight. But the people did decide before the 17th Amend., it’s just that under the framers’ plan they decided indirectly by electing the local legislators. The senate was to be the repository of the accumulated wisdom of the nation. It was set up to throw cold water on the heated passions of the lower house. They were supposed to be the best and the brightest; an aristocracy of merit not heredity (if my ancient Greek does not fail me, I think aristos means best or most noble.) The unique concerns of the senate laid out in the constitution were far removed from local concerns. Treaties, foreign trade, federal appointments, and national security were not what the common people were thinking about on a day-to-day basis–they wanted to know if the crops and animals were taken care of.
I haven’t had a chance to read up on the 17th Amend., but my guess is that there had to be corruption, or abuse of power of some kind, to upset the people of the time.
The American people of the 21st century are too ignorant of the long-term impact of their ill-considered public policy desires. Our rights of private property will always be sacrificed on the altar of democracy. If the masses can confiscate the wealth of the few through the use of government under the color of “social justice,” “economic justice,” “environmental justice,” and “shared responsibility,” they will. The senate was supposed to be populated with disinterested statesmen of integrity and honor–closer to Franklin than Franken. The civic knowledge landscape of the American electorate and the elected is not a pretty picture. The Intercollegiate Studies Institute’s (www.isi.org) reports for the last few years present a dismal, horrifying dumbing down of Americans. We’ve gotten to the point where someone like me, just a common man, could now be seen as an elitist.
Just give the people their bread and circuses (panem et circenses) and the individual rights and liberties of others can be trampled without notice or concern to the long-term detriment of all.

Dave says:
May 21, 2010 at 10:57 am
Susan, we do irreparable harm to the individual and his potential to lead a meaningful and fulfilling life when we show such little respect for his free will and his autonomous self-determination by not holding him accountable for the consequences of his actions.
I got an idea. If anyone wants a bailout, they must seek it from family, friends and willing strangers. The anonymity of individual and corporate welfare payments lacks the transparency to make people accountable. There’s no sense of shame, no sense of honor; just entitlement. It’s so easy to spend other people’s money.

Susan Craig says:
May 21, 2010 at 1:23 pm
Dave, that is my prime objection to a majority of national welfare programs. It subtly tells the recipient that they can’t make it therefore they need to be cared for. Enslaving those take the ‘entitlement’.

Dave says:
May 21, 2010 at 2:28 pm
Susan, to me it’s even more insidious than simply telling the recipients that they can’t make it. The “welfare” is sold as something they are entitled to because their situation came about through no fault of there own–certain external constraints kept them from living a life of excellence. But for certain classes of people holding the recipient back because of prejudice, monopoly power over capital, or any other made up reason our recipient would be the next Edison or Gates. The system allows people to forget that before the government can “benefit” certain individuals, it must necessarily deprive others. A government has nothing prior to taking from the governed.

Roger Jett says:
May 21, 2010 at 7:50 pm
Dave, I find that what Dr. Morrisey and you have had to say today has great merit and serves to help us focus more upon the real underlying issues and less upon the “appropriateness” or, perhaps the “inappropriateness” of the 17th Admendment. The Founders sought to preserve sovereignty to the states and to the people in those areas which were not specifically enumerated to the federal government. I believe we each agree that to the detriment of America we have drifted substantially away from where the Founding Fathers intended for us to be . In my opinion some of that drifting may have been the result of unrealistic expectations on their part. After all, much that they attempted was experimental and on a grand scale. However, while they may have been mistaken in a few of their methods, they proved to be overwhelmingly correct in their concepts, precepts and principles. Our goverment as built upon our Constitution, has withstood many tests over a period of time that is unequaled in history. However, I believe I’m on target when I say that there is a consensus that we are in grave danger of losing our republic form of government. We face many difficulties. By way of what Dr. Morrisey calls a Fourth Unelected Branch of the federal government (bureaucracy), the executive branch is managing to usurp power from the legislative branch. By judicial activism, the judiciary branch further usurps power from the legislature as they legislate laws from the bench. Of course as has often been discussed already, the federal legislative branch in conjunction with the federal judiciary has routinely overriddened the sovereignty of the state governments. We the people have grown selfish, complacent, apathetic and in increasing numbers more and more dependent upon the federal government. Such actions and lack of action invites bondage. We still have a “republic” and it’s time for us to wake up, cast off our fears and fight to save it.

Kay says:
May 21, 2010 at 11:21 pm
I have nothing to add, except my thanks for all the bloggers and essayist Mr. Duncan. As one of you mentioned, this is better than a class. I read today one little ray of hope: the Constitution is selling like hotcakes. The Heritage Foundation, the Cato Institute, and even our Congressional offices who have free copies are experiencing a rush of requests for the Constitution.

Dave says:
May 22, 2010 at 9:24 am
Roger, I wholeheartedly agree. Thanks for taking the time to write so many well thought out comments for this project. You used the word “drifted” and that is a word that has found its way into my vocabulary with increasing frequency. Paul Rahe used it in the title of his book Soft Despotism, Democracy’s Drift. I haven’t read it yet, but it did get me to read selections of Tocqueville–check out the short chapter six of part four in volume two entitled What Kind of Despotism Democratic Nations Have to Fear. Tocqueville foresaw the Nanny State and the Administrative State 175 years ago.
I’m not well read enough to see the big picture yet, but I’m going to keep reading.

Guest Blogger: Andrew Langer, President of the Institute for Liberty

Friday, May 21st, 2010

Federalist #18

What sets the founding of the American republic apart from the founding of so many nations on Earth was the depth and breadth of knowledge, research, analysis and debate that went into it.  This is made evident from Madison’s Federalist #18, written under his pseudonym “Publius”.  In 18, Madison delves deeply into the experience of the ancient Greek states and the various federations, alliances, and confederations that they had historically formed.  In an era without instant electronic access to libraries of information, the sheer amount of scholarship presented in these pieces is nothing short of astounding.

Federalist #18 charts the shortcomings that arose within these various confederacies, presenting them as analogs and object lessons for the then-current struggles the fledgling republic was experiencing.  The message was simple:  we must learn from these mistakes, and make every effort to correct where the learned Greeks were deficient.  It is the essence of archival scholarship:  those who do not know history are doomed to repeat it.

Two key lessons emerge.  First and foremost, the issue of balancing minority interests against those of a powerful majority, and vice-versa.  It was only though the careful historical scholarship of the founders that the delicate structures that we have today were created—and direct lines can be drawn from these lessons to the creation of two very different legislative branches, one stemming from direct democracy (The House), the 2nd stemming (initially) from a more genteel (but, in my estimation far more responsive to the people) source of power (The Senate, which until the ratification of the 17th Amendment drew its members from the nominations of state legislatures); the electoral college (which serves to balance the interests of rural and urban population centers); as well as the very system of dual sovereigns that underpins the system of federalism.

The second lesson arose out of the first—that whatever federal union would be created, would have to be strong.  That even though federalism “secures to citizens the liberties that derive from the diffusion of sovereign power” (The Supreme Court in Coleman v. Thompson, 501 US 722, 759 (1991)), nevertheless there would still have to be a strong and unified central power, to ensure that the nation would not only grow and prosper, but be able to effectively defend itself.  There is strength to be had in numbers, and this is the essence of E Pluribus Unum (Out of Many, One).

Call it happenstance, call it the coincidence of timing and talent, or call it (as I do) divine providence.  The bottom line is that at the time when this nation needed learned minds and steady hands guiding it, those men were to be found leading it.  Their grasp of the lessons of history (both the mistakes, and triumphs) are evident in Federalist #18.

Andrew Langer is the President of the Institute for Liberty

 

Guest Blogger: Joerg Knipprath, Professor of Law at Southwestern Law School

Monday, May 24th, 2010

E Pluribus Unum. “Out of Many, One.” This aphorism is one of the mottos adopted by the Confederation Congress in 1782 for the Great Seal of the new United States. It not just describes the union of states that was put together through the efforts of the Second Continental Congress. That particular choice also recognizes the relative novelty of the political experiment Americans were undertaking, a novelty memorialized as well in a motto on the Seal’s reverse, Novus Ordo Seclorum, “A New Order for the Ages.”

Federalist No. 19 continues the examination of dangers from weak confederations, a topic that has, in one form or another, been at the core of most of Publius’s preceding efforts. As in the adjoining papers, the theme is the tendency of weak confederations towards internal turmoil, external weakness, and eventual collapse. Here, Madison focuses on the weaknesses of the Holy Roman Empire of the German Nation, an entity intended to re-create an old order for the ages.

The historical evolution of the Germanic realm that Madison describes is the opposite of E Pluribus Unum. “Out of one come many” better represents the unfolding of the usual order of things. That theme is common in creation explanations from religion, philosophy, and science. God created Adam, then Eve from Adam, who together multiplied. For Plato and his later interpreters, reality followed from the singularity of the Form of the Good. In physical science, everything developed from the singularity that is the source of the Big Bang. Under the theory of biological evolution, all life multiplied from some original single-celled organism. Out of one, many.

Likewise, the usual order of things is for systems, once established, to move from flourishing to decay, from order and unity to chaos and multiplicity, from the whole to the parts. This holds true for physical and biological systems, as well as systems of human organization. The body decays. Stars decay. Personal relationships decay. Political orders decay. Personal experience and a basic study of science and history lead us to these common sense conclusions.

Following initial Creation, subsequent creations may form new systems from pre-existing parts. People come together to form new families, communities, and states. At the level of states, these events are infrequent, and, as Madison points out in a later essay, usually the result of one charismatic man’s influence. But any such creation is immediately threatened by the tendencies towards decay and multiplicity.

The protection against decay and chaos is “energy.” To maintain our bodies, we use energy through food. Plants use the sun’s energy to stay alive. In families, it takes energy (physical and emotional) to maintain a well-functioning unit. So it is with political systems. The Germanic realm was created by Charlemagne, a very energetic statesman. But subsequent emperors were more ordinary, and the system itself failed to provide the structures that would allow the government to act with the requisite energy to maintain it. This need for “auxiliary measures,” that is, constitutional structures, to insulate the country from instability caused by variability in the qualities of the governing officials is raised in several essays.

Publius frequently raises the critical quality of energy in government in various writings. To underscore the force of his argument in Federalist 19, Madison’s recitation of the emperor’s formal powers suggests, not too subtly, those under the Articles. The princes, with their own claims to particular sovereignty, produced chaos within the system and intrigue from without. Madison’s warning about the deleterious effects of the decision to devolve power onto “circles” within the Empire was a pointed rebuke to supporters of the Articles who argued that common interests and customs within regions of the United States would produce amicability and desire for concord among neighboring states in ordinary matters, while the Confederation took care of external challenges. The Empire’s structure could not provide the conditions for energy in government when the emperor’s personal ordinariness could not surmount the system’s deficiencies. Neither could the Articles. The Constitution would.

Too little energy in government is a problem; so is too much. The sun’s energy is necessary for living systems. Yet too much energy kills as relentlessly as too little. Much of the debate over the Constitution was not about the need for energy in government, but about the amount. Some opponents of the Constitution thought that the Articles supplied enough. Others agreed with Publius that the Articles were defective, but worried that the Constitution went too far.

Though the particulars of Madison’s historical account might be open to question, his basic conclusions have merit. Still, the Empire lasted a thousand years. Indeed, Antifederalist writers lauded the relative stability and continuity of the systems that Madison derides. For well over three centuries (from the early tenth through the thirteenth), the Empire functioned effectively and energetically. It will take more than another century for the United States to reach that longevity. Meanwhile, we must ask whether the system that has emerged under the Constitution provides the right amount of energy to the central authority—or too much. Or did the Framers get the structure right, but have the people, through a lapse of republican virtue and political participation, permitted politicians and bureaucrats to stretch the structure beyond its original contours and to draw energy from individuals and other constituent parts to the central government?

As the mottos declare, the forming of the United States was a creative act to forge one out of many, first under the Articles and then, “to form a more perfect union,” under the Constitution. This was to be a new order for the ages, one that would seek to avoid the inevitable decay and dissolution through a novel constitutional accommodation. There is, too, a revealing third motto on the Great Seal, “Annuit Coeptis,” translated as “He [God] Approves Our Undertakings,” to complete the description of the project at hand. To avoid the fate of the polities that Madison describes in Federalist 19, we must remain vigilant to keep our constitutional, political, and social order true to the aspirations expressed in all three mottos and in the Constitution.

An expert on constitutional law, Prof. 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.  Prof. Knipprath has also spoken on business law and contemporary constitutional issues before professional and community forums.  His website is www.tokenconservative.com

 

Guest Blogger: William C. Duncan, director of the Marriage Law Foundation

Tuesday, May 25th, 2010

Federalist 20 is one of a series of essays that discuss the governmental precedents of other nations as illustrations of some of the weaknesses of the Articles of Confederation. In it, James Madison discusses the Netherlands, painting a picture of a weak government held together by a strong magistrate and the pressures created by hostile surrounding nations. Madison underscores the fact that the government has overstepped its constitutional bounds on occasion because those bounds do not allow it to meet emergencies.

A lesson here is that a weak and ineffectual government is a threat to liberty just as an overly strong and active government would be. He explains that the experience of the Netherlands demonstrates: “A weak constitution must necessarily terminate in dissolution for want of proper powers, or the usurpation of powers requisite for the public safety.” The implication for the United States Constitution is that it must create a government capable of meeting true emergencies and dealing forcefully with threats from other nations. The failure to do so not only could result in dissolution, but ironically, could lead to too strong a government: “Tyranny has perhaps oftener grown out of the assumptions of power, called for, on pressing exigencies, by a defective constitution, than out of the full exercise of the largest constitutional authorities.”

Madison attributes the weakness of the constitution of the Netherlands to “the calamities brought on mankind by their adverse opinions and selfish passions” and recommends that Americans “let our gratitude mingle an ejaculation to Heaven, for the propitious concord which has distinguished the consultations for our political happiness.”

In addition to evoking gratitude, there is another important lesson in Federalist 20 for current political debates.

In the Pennsylvania Convention, John Dickinson had taught: “Experience must be our only guide. Reason may mislead us.” At the end of Federalist 20, Madison explains why he has spent time describing the precedent of other nations in words that echo Dickinson’s: “Experience is the oracle of truth; and where its responses are unequivocal, they ought to be conclusive and sacred.”

An obvious application of this point is to the ongoing debate over whether our government should continue to press for greater and greater social controls. It would seem obvious that the unequivocal disaster of socialist and communist governments ought to warn us away from that precipice.

More generally we can heed the Framers’ example of willingness to learn from experience rather than to trust only in their unaided ability to reason out new solutions. Subtle thinking and cleverness have their place but must be disciplined by a willingness to learn lessons from human experience. One of the greatest strengths of the U.S. Constitution is its dual application of (1) the principles of self-government learned in the colonial experience and (2) the lessons of history derived from careful study and reflection.

Returning to a theme from the discussion of Federalist 17, there is a temptation to apply not experience, but ideology, to problems we face as a nation. Doing so appeals to a hubristic temperament. Some will always be dissatisfied if political reality is not made to conform to prefabricated theories even when doing so requires compulsion and control. In fact, the ability to control society may be the attraction of such theories; at least to some of their adherents.

The Framers eschewed easy answers and paid the price in experience, deliberation and study to create a secure foundation for our national government. That foundation incorporates the lessons of experience. Our response to current challenges must do the same.

Mr. Duncan is director of the Marriage Law Foundation (www.marriagelawfoundation.org). He formerly served as acting director of the Marriage Law Project at the Catholic University of America’s Columbus School of Law and as executive director of the Marriage and Family Law Research Grant at J. Reuben Clark Law School, Brigham Young University, where he was also a visiting professor

16 Responses to “May 25, 2010 – Federalist No. 20 – The Same Subject Continued: The Insufficiency of the Present Confederation to Preserve the Union, from the New York Packet (Hamilton & Madison) – Guest Blogger: William C. Duncan, director of the Marriage Law Foundation”

  1. Charles Babb says:

    This morning I sent the following message to my children.

    “Those who are not informed of what they possess will not recognize when it is taken from them. Nor, can they preserve it for their prodigy.

    William Duncan has blogged an informative op ed in response to our reading of FEDERALIST No. 20 this morning and I invite you to take a few minutes and read it.

    https://constitutingamerica.org/blog/?p=578

    Love,
    Dad”

    Understanding what is needed won’t help much if I don’t take some positive step toward implementation. Eventually we can all begin to demand that those seeking elective office exhibit an of understanding of and a desire to support the truths we believe in.

  2. Maggie says:

    Madison and Hamilton state that “a weak constitution must necessarily terminate in dissolution for want of proper powers, or the usurpation of powers requisite for the public safety.”…..It is in the name of “safety” that the government has continued their unrelenting power grab. I’m sure we have all seen what an overbearing parent does to the will of a child. When does a parent let the child grow up and fend for himself? This goes for both “safety” concerns as well as being financially responsible. How brilliant these two men were when they said, “let our gratitude mingle an ejaculation to Heaven, for the propitious concord which has distinguished the consultations for our political happiness.” Our “new” system works. Why are we not rejoicing to God that it has brought us thus far and doing all we can to protect it rather than looking back with fondness upon the many systems that have failed time after time?

  3. Susan Craig says:

    What crystal ball did they have? Or was it just a true understanding of history and its lessons?
    This paragraph brought me up short!

    This unhappy people seem to be now suffering from popular convulsions, from dissensions among the states, and from the actual invasion of foreign arms, the crisis of their distiny. All nations have their eyes fixed on the awful spectacle. The first wish prompted by humanity is, that this severe trial may issue in such a revolution of their government as will establish their union, and render it the parent of tranquillity, freedom and happiness: The next, that the asylum under which, we trust, the enjoyment of these blessings will speedily be secured in this country, may receive and console them for the catastrophe of their own.

    We have Michigan, California, Louisianna and Arizona. We have Islamic radicals, several countries that don’t like us very much (Venezuela, North Korea and Iran) not to mention those that wouldn’t mind seeing us taken down a peg.

  4. Ron Meier says:

    Thanks for the Dickinson quotes, Mr. Duncan, especially “Experience is the oracle of truth; and where its responses are unequivocal, they ought to be conclusive and sacred.”

    For the longest time, I had tried to show several otherwise very logical and rational friends, all with advanced degrees, including PhD, the folly of their thinking, by comparing reality to their ideology. For example, an atheist friend believes Radical Islam is not a problem and we should not be fighting a war in the Middle East. I pointed out that an atheist has the most to fear from Radical Islam because they would be forced to convert to Islam or be killed. Since an atheist does not believe in life after death, they would be most disappointed to be killed before their otherwise natural death; yet, if they are true to their atheism, they should not convert. Therefore, I would submit that Atheists should be the ones whom we might expect to be most adamant in pursuing the war on Radical Islam, to insure that they are never faced with that impossible choice.

    After awhile it finally hit me that logical and rational reasoning, supported by experience and facts, was 100% ineffective in arguing with those whose ideology trumps all facts and experience. Now, generally, I ignore their comments and don’t waste time. It seems that my time is better spent discussing with those who are fence sitters and open to ideas rather than those who are confined to their ideological straitjackets.

    I wonder what Mr. Duncan might think about the utility of arguing with these kind of ideologues and what advice he might have for us so we can be more effective? Certainly marriage counseling has many similar circumstances and I would assume similar roadblocks are encountered there.

  5. Dave says:

    Mr. Duncan, well said. Thank you.

    Charles for Father of the Year!

    Maggie, I concur. With increasing frequency we are told of a crisis and the impending doom if we don’t grant Washington more power, control and more of our money.

    And we haven’t been rejoicing to God for our good fortune for over one hundred years, because some pointy-headed, hubristic “intellectuals” thought man could do better. Man can create that utopia that God has so cruelly and stingily withheld. After two world wars one would think our days of longing for a man-made utopia contrary to “the laws of nature and of nature’s God” would be over.

  6. Karen Sherer says:

    This study of the Federalist papers has really brought home to me the plain fact that a thorough knowledge of history is not “a useless course of study. I’ll never use it in my life. Why take it?” It is so very true that our current administration (and many others before it) DO rely on their pure ideological goals and either ignore or never learned the lessons of history.

  7. Bache says:

    The wisdom obtained and applied by the Founders required diligence, dedication and knowledge. The personal principles each contributing writer and scholar to our Constitution and foundation of our country came with sacrifice. I believed that they recognized their own inadequacies and were willing to listen to experience and to the history. B. Franklin once said, ” The doors of wisdom are never shut.”

  8. Susan Craig says:

    There is a book titled ‘The World Turned Upside Down’, that demonstrates that reason comes out of religion and that eventually all genres of thought that say religion is inimitable to reason and logic eventually hit a point which is unreasonable and illogical. The author is Melanie Phillips.

  9. Carol Frenier says:

    I, too, continue to be interested in the impact of ideology on both 1) failing to see the importance of experience and 2) the desire of some to expand the power of central government. Can you recommend a good history of ideological development in American politics?

  10. Laurie says:

    I was concerned that no one responded to Carol Frenier’s writing yesterday about what this ideology from Europe is that we keep referring to as the one that is a threat to the America that our founders gave us. I immediately think of a mandatory course in 11th grade, “Americanism vs Communism.” Bet that’s not mandatory anymore. Whether you want to call it Socialism or Communism, it is an ideology that gives the wealth to the political or ruling class and makes the rest of us basically equal. (See Russia, China, Cuba, Venezuela) A European book that was recently translated into English is “The Coming Insurrection” by the Invisible Committee, how to bring down governments, even the family. (Amazon.com has it) Also, study Saul Alinsky’s Rules for radicals and the Cloward and Piven strategy, you can Google those. They also preach how to overwhelm the welfare system in order to bring American capitalism to an end. The Drudge Report has a story today how “government provided benefits are at record high” and “paychecks from private businesses at record low.” (About 42%) Who is going to pay all these benefits? Unions want a 165 Billion Dollar bailout for their pensions. State worker unions want 100 Billion Dollar bailout. This is what the radicals want. Who is rioting in Greece? Labor Unions and Radicals. I’m afraid we are being set up by Overspenders in Washington, who want to collapse free enterprise and all our liberties. That is why this Federalist study, learning what Americanism is again is so terribly important.

  11. Carolyn Attaway says:

    As Susan pointed out, the paragraph that begins ‘This unhappy people . . .’ could very well be written to some extent of America today. Reading headlines such as “Redistribution Victory: Private Pay Plummets, Govt Handouts Soar”, “ObamaCare Lawsuit Reveals National Grab to Regulate Individual Decisions”, and “Nonpartisan Proof: Cap-and-Trade Is an Economy-Killer”, brings home the point addressed in Paper 20 that ideology over experience always leads to failure. I believe that many nations have their eyes fixed on us, some praying for our strength, and others for our demise.

    Which leads me to the most important statement that I have read so far in the Federalist Papers; with added words “Experience is the oracle, the divine revelation of truth; and where its responses are unequivocal, absolute, they ought to be conclusive, decisive and regarded with reverence, sacred.

    As Mr. Duncan points out, “Subtle thinking and cleverness have their place but must be disciplined by a willingness to learn lessons from human experience. One of the greatest strengths of the U.S. Constitution is its dual application of (1) the principles of self-government learned in the colonial experience and (2) the lessons of history derived from careful study and reflection.”

    Of this great strength in our Constitution, can we make the argument that our Congress is not paying much heed to the second application, and that many of America’s citizens themselves have forgotten the valuable lessons of history? I am always taken aback when I mention a relatively known country such as Wales, and the large number of people who do not even know that Wales is a country, much less where it is located.

    So how can one study the history of a country, if they do not even know that that country exists? One of my favorite videos on AFV is when the father of a little 2 year old girl asks her to point to various states and cities on the map, and when she is correct in her answer, she does the “Smarty Pants Dance” (It still makes me giggle) Anyway, maybe we should take this lesson and apply it to students of all ages, reinforcing the idea that knowledge of history makes one very wise.

  12. Kay says:

    The premises and arguments of The Federalist Papers are seeping into my being. Two weeks ago I wrote a two page letter to my congressman (remember the NY 23rd district race) with concerns, and ended it with: “Our founders were wiser than the whole Congress put together today, having foresight because they had hindsight on what works and does not work for a nation to prosper. They did not live in the moment because they desired that the Constitution be a lasting document, not like the legislation Congress is passing that will destroy us as a people.” Because of the essayists and commentators on this project, my thinking is being refined and focused on the whys behind our wonderful Constitution. May we all have opportunities to pass onto others what we are learning.

  13. The Ransom of Reason

    Reason be and reason we
    Away our distant shores
    Wander not and wanton trot
    Afraid of written mores

    Did we not through seasons see
    The meaning, yet for many
    We forgot the how,
    We riddled out the penny

    “I know this and I know that
    Believe me for I’ve the vision
    Follow me and listen now
    For I rewrite the mission

    We is the forgotten us
    It matter not for you
    I seek your best and vest my truths
    It is I who reap the view.”

    Freedom this and Freedom that
    Ring in empty vestibules
    History renders ghosts forgotten
    Lost the written tools

    “I seize the rapture
    Seek doleful and the bane
    Meeker making spirit spree
    I linger not in vain

    Feed the weakness, starve the heart
    Watch the soul regress
    Rhyme and reason take their toll
    Happy opportune the guess.”

    By Janine Turner
    May 25, 2010

  14. Laurie says:

    The God that the founders turned to in 1776, is the same One today. Without Him, we will not succeed in our desire to re-found our nation on the principals of the Declaration of Independence and the Constitution. Make no mistake. Without Him, we will be overwhelmed by the agenda from others. Our founders didn’t just have incredible knowledge of history, they believed in God, and His special purpose for America. That was their strength. We must have the same strength today. Those who believe in America, must believe in the God of our Founders, Who gave the incredible power and foresight and knowledge to help them to create our exceptional-ism, never before in the history of the world, a country of freedom and liberty and justice for all. Truly, a miracle.

  15. Maggie says:

    Janine……that’s absolutely beautiful!

  16. Roger Jett says:

    Laurie, I agree. Even the “Deist” of our day can see that we live in “a time that try men’s souls”, but it will require that “we the people” once again awaken to the faith of our fathers. A faith that not only acknowledged Him the “Creator” as He was ….., but that He is and that He will always be the “Sustainer” and “Giver” of all good things. You said in your post that “they believed in God, and His special purpose for America.” There are those who dispute that and have long been laboring in the margins of our society to knit a fabricated false rewrite of history. Unfortunately, they are no longer operating in the margins. They are positioned in high places and with each day they seek to entrench. As you say, “Without Him, we will be overcome by the agenda of others”. We can reason and trust that He that is the “First Cause” is more than able and can effect the restoration and sustainment of all that we desire, “a country free and liberty and justice for all”.

Guest Blogger: Horace Cooper, Director of the Institute for Liberty’s Center for Law and Regulation

Wednesday, May 26th, 2010

The Federalist #21: In Defense of Politics

Hamilton opens Federalist #21 with a continuation of a theme:  it will be easier to understand the need to adopt the new Constitution if the defects of the old Articles of Confederation are better understood.  He embarks on an effort to outline what he calls the “enumeration of the most important of those defects which have hitherto disappointed our hopes from the system established among ourselves.”

He starts with the fact that under the Articles of Confederation, the federal government had no power to enforce its rulings.  He sees this as an almost fatal flaw.  He complains that the “most palpable defect of the subsisting Confederation, is the total want of a SANCTION to its laws. The United States, as now composed, have no powers to exact obedience, or punish disobedience to their resolutions, either by pecuniary mulcts, by a suspension or divestiture of privileges, or by any other constitutional mode.” In addition to the hardships  that beset any government incapable of enforcing its on rules and laws, Hamilton explains that such a posture is certainly unique among nations.  He argues that there are no nations — kingdoms or any other kinds of governments which operate without the fundamental ability to carry out its interests.

A second flaw in the present system is that in almost all respects the states are left to fend for themselves.  In one crucial way, Hamilton points out this isn’t even in the interest of states.  What happens in the event there is a local insurrection?  There is no ability for the governor of one state to enlist the citizens of another state to step in and offer assistance.  Thus, there is the potential that states would have to devote significant resources solely for domestic armies that would lay in wait for an uprising meanwhile draining the treasury.  Collectively one might imagine this duplicative waste across the several states equaling more than the amount that a federal government would use to handle the same concerns.  Additionally, the mere fact that the federal government could respond to an internal insurrection could be sufficient to prevent one from forming altogether.  Hamilton further points out that the Constitution’s guarantee that all its citizens would have a “republican” form of government means that in the event the leaders of a state attempt to declare a dictatorship or otherwise suspend democratic control the Federal government could intervene to return liberty back to the hands of the people.

Hamilton turns next to the taxation system set up under the Articles of Confederation.  The “quotas” system that he derides essentially assessed the states themselves instead of having direct taxing authority.  Hamilton explains that a system based on state assessments would fundamentally fail to meet the needs of the American government.  It would be insufficient and in his view significantly inequitable in that it simply presumed that all states were equal in most respects financially.  Hamilton explains that “there is no common standard or barometer by which the degrees of it can be ascertained. Neither the value of lands, nor the numbers of the people, which have been successively proposed as the rule of State contributions, has any pretension to being a just representative.” Furthermore he explains, “there can be no common measure of national wealth, and, of course, no general or stationary rule by which the ability of a state to pay taxes can be determined. The attempt, therefore, to regulate the contributions of the members of a confederacy by any such rule, cannot fail to be productive of glaring inequality and extreme oppression.” While making his argument for a federal consumption tax, Hamilton demonstrates a degree of clarity about the consequences of tax rates being too high that many modern leaders would do well to recall.  If you tax too high, you get less.   Hamilton explains, “It is a signal advantage of taxes on articles of consumption, that they contain in their own nature a security against excess. They prescribe their own limit; which cannot be exceeded without defeating the end proposed, that is, an extension of the revenue. When applied to this object, the saying is as just as it is witty, that, “in political arithmetic, two and two do not always make four.” If duties are too high, they lessen the consumption; the collection is eluded; and the product to the treasury is not so great as when they are confined within proper and moderate bounds.

With the three defects that Hamilton identifies by implication the answers provided in the U.S. Constitution are clearer and more readily understood.  The Federal government in the Constitution has the power to enforce its rules, defend each of the states individually and collectively and finally assess taxes directly rather than through the states.  Prior to this change the Federal government was indebted, powerless and in many ways so weak, it threatened the liberty of all Americans because it was unable to defend them against most threats.

Horace Cooper is the Director of the Institute for Liberty’s Center for Law and Regulation

12 Responses to “May 26, 2010Federalist No. 21Other Defects of the Present Confederation, For the Independent Journal (Hamilton) – Guest Blogger: Horace Cooper, Director of the Institute for Liberty’s Center for Law and Regulation

  1. Ron Meier says:

    Cathy has called us to encourage children to participate in this project and contest. I’ve forwarded the link to a principal of a Christian school, but it then occurred to me that schools will be closed for the next several months. So, I sent a link to the woman at my church who runs the Children’s ministry; Sunday schools and Vacation Bible Schools will continue to operate all summer, so they are a good source to get children involved with Constituting America. If we all contact our church children’s ministers, we might get more kids involved.

  2. Maggie says:

    That’s a fantastic idea Ron. I’ll be sending a link to my church’s youth leaders.

  3. Charles Babb says:

    Good move Ron; It is frustrating, to me, to see how easy it is to acquire this information, and to realise that many of our leaders don’t seem to possess it. We have a mid-term election this year and I decided to send the following email to a candidate for Congress from my District.

    “I would sure feel more comfortable casting my vote for you, if I saw that you were participating in this program.

    http://www.constitutingamerica.org/

    It appears that too many of our leaders have not made a commitment to understanding our Constitution and why it developed as it did.

    Knowing that those who seek leadership roles are truly committed to preserving that which has made US the greatest Nation in existence, is important to all voters.

    You cannot preserve it, if you don’t understand and live it.

    Seeing your name in our daily blogs would mean to me that you truly do understand and that you are truly committed to preserving our way of life.”

  4. Susan Craig says:

    With the first flaw identified in #21 has merit I don’t think the power of enforcing unfunded mandates was something the founders envisioned. Unfunded mandates in many ways contribute in major ways to not only State budget woes but to the health care costs problem.
    With the second expounded, we see an abrogation of that in the current illegal alien situation. The invasion of our country by people who start off their residency demonstrating a disrespect for our laws is compounded by the movement for boycotts between neighboring states.
    Problem 3 is a well duh! I find the counter-intuitive fact that the more you tax the less you get one of the things that I can not understand how the people in politics do not see it.

  5. Chuck Plano, Tx says:

    Susan people in politics do see it and they ignore it. It is all about the next election cycle and what will get them reelected. When politics became a very profitable profession with life time benifits and very little service is when “We” the people started loosing control of our government and as the number of citizens grew that do not have an investment (income tax) in our government they demand more and more and politicins are all the more ready to give it to them to insure their election to office.

  6. Susan Craig says:

    I suppose I sort of knew that. But being the pie-eyed optimist I hoped that it was not across the board.

  7. Roger Jett says:

    With much insight and skill, Horace Cooper has expounded upon the increased focus that Hamilton has placed toward the “defects” and shortcomings of that form of government prescribed under the old Articles of Confederation. In my post, I ask to be allowed to take a bit of a light-hearted yet I hope pertinent look at that process that we as a nation went through as we debated, charted and then negoitiated our course by which we arrived at a newly designed and better government.

    I begin by confession to the fact (as my family will verify), that I have this tendancy to reduce and relate many things (for which I devote much time), to either an episode of the old Andy Griffith Show, or to a scene from the movie “O Brother Where Art Thou”. Well today’s epiphany was inspired by the afore mentioned movie and it helped me grasp a better understanding of how things were for our young country during that time that we were linked together under the “Articles of Confederation”. If you are familiar with this movie, let me direct you to a scene that appeared early on. The main characters, Everett, Pete and Delmar while in prison have formed a “confederacy” with the common goal of achieving freedom. While they are able to escape the chain gang, they are still hindered by the fact that they are in shackles and chains that link them together. As they make their awkward and laborious run for freedom, they must work as a unit because they are literally bound to each other. Necessarily, a joint and coordinated effort must be made in order to put distance between them and the pursuers hounding them. Disaster strikes as they attempt to hop a freight train and it is quickly revealed that there are serious “defects” in their newly formed confederacy. The outside viewer quickly realizes even if Everett, Pete and Delbert fail to fully do so, that this small confederacy, as it is currently formed, is in great danger of not surviving. As they made their run to hop the train, Everrett manages to make it inside the freight car, but fails to remember that his success as an individual is linked to the rest of the confederacy. Delmar only makes it halfway in and Pete after running too great of a distance, falls down and of course Delmar and then Everrett are pulled from the train. After this debacle they individually arrive at the conclusion that a convention is needed in order to review and reconsider the the current form of government for this “outfit” and debate what changes are needed.

    The individual wills are causing division and friction within the group. Also, it has become clear that there has been a failure to determine and define definite lines of authority by which effective leadership can be achieved and maintained. Pete is especially unhappy with Everett’s presumption of a leadership position. Everett makes the case that he, because of his superior intellect should lead. SORRY! I’ve apparently exceeded an allotted amount of space. Hope to finish in another pos

  8. Roger Jett says:

    This is a continuation of my earlier post at 4:20pm. Everett makes the case that he, because of his superior intellect should lead. However, the viewer has already witnessed Everett’s failure to help Delmar and Pete succeed in getting into the freight car ….. a failure that caused the whole confederation to fall off the train in defeat. Self proclamations and self appointments do not make leaders “bona fide”. Later scenes give us further reason to question the ability of Everett to act in the best interest of the others. Everett is determined at all cost to hold his position as “pater-familias”, but finds himself in grave danger of losing his headship over his seven young daughters. If a man fails his wife and daughters, can he then be trusted to be the “bona fide” leader of our little confederacy? Oh constant sorrows!
    Pete displays that he is independent minded and strongly stands up to argue and vie for the leadership role. He has common sense, is committed to duty and loyal (especially to kinfolk). Pete will not be railroaded (though he might fall down while catching a train), but does he have vision and the overall capacity to lead?
    Delmar is the valley of humility in between the two mountains of self-interest. Instead of siding with one faction over another he simply takes the diplomatic position of ” I’m with you fellars”. We chuckle, but that individual quality was greatly needed during the time of transition from the old way to the new. Delmar best represents the many who are first and formost self-governed by the “golden rule” and they serve to be cohesive for the group at large. They hold us together during times of heated debate so that the debate can be completed and hopefully the best interest served. Thankfully, our Founders were successful in their great endeaver to bring about a strong constitutional republic. A government that has enabled us to protect our persons, our property and our freedoms. Thankfully, long after they lost their chains and shackles, Everett, Pete and Delmar also went on to form a more perfect union ….the “Soggy Bottom Boys”.

  9. Carolyn Attaway says:

    Thank you Mr. Cooper for your insightful analysis of Paper 21.

    The 3 flaws that Hamilton describes are indeed matters of grave importance for the reasons he mentions, as well as National Security beyond invasion by a foreign power.

    In the second flaw Hamilton points out that States are left to defend themselves, and the trouble the States incur may be too large for them to handle alone.

    Today, many States have to fend for themselves because the Federal Government won’t help them whether by choice or oversight, many speculate on the reasons, but the fact remains that many States are without federal assistance. Border States have to deal with illegal immigration relying on their own resources to guard against illegal entry and activity. Gulf States have to direct their own cleanup efforts from the BP oil spill because of the absence of Federal help; and then on the other hand the Federal Government criticizes them for taking action.

    I believe we as a country are at the point where Hamilton states “The natural cure for an ill-administration, in a popular or representative constitution, is a change of men.”

    The third flaw is very present in our Congress today. Hamilton states “If duties are too high, they lessen the consumption; the collection is eluded; and the product to the treasury is not so great as when they are confined within proper and moderate bounds.” My daughter and I were discussing our economy today, and how that states compared to each other.

    On average, the northern states are heavy laden with unions and high taxes, whereas the western states are quickly becoming bankrupt because of their liberal policies. Yesterday the headlines disclosed the following: Paychecks from private business shrank to their smallest share of personal income in U.S. history during the first quarter of this year, a USA TODAY analysis of government data finds. At the same time, government-provided benefits — from Social Security, unemployment insurance, food stamps and other programs — rose to a record high during the first three months of 2010.

    According to news reports, most states in the Sunbelt have the lowest taxes and largest amount of private businesses. Even though all states are struggling to balance their budgets, and are having to make major cuts in state programs, the Sunbelt states are generally faring better than their sister states. This example tends to support Hamilton’s third flaw and should give high tax states and the Federal Government pause.

  10. Susan Craig says:

    2nd attempt. Chuck, I sort of knew that but being a wild-eyed optimist did not wish to believe it was deliberate.

  11. Yesterday, May 25, 2010, marked the 223 anniversary of the convening of the Constitutional Convention in Philadelphia. The National Constitution Center is sponsoring an innovative Twitter program which Constituting America is promoting: http://www.twitter.com/secretdelegate .

    The premise is that a rogue delegate is secretly “tweeting” from the Constitutional Convention and giving us “the inside scoop.” It is fun! If you are on Twtter, check it out! If you aren’t on Twitter, consider signing up! It is vital that we utilize “new media,” to spread the word about the Constitution and the founding principles of our country.

    Thank you to all of you who participate in this blog, follow Constituting America on Facebook (www.facebook.com/constitutingamerica), and Twitter (www.twitter.com/constituteUS) , and forward emails out to your friends! A big thank you, also, to Horace Cooper for sharing your insights on Federalist 21 with us!

    In Federalist 21, Publius begins an itemization of the weaknesses of the Articles of Confederation in order to build a case for the proposed Constitution. The Articles of Confederation were clearly not taking the country in the direction the founding fathers hoped it would go. Imagine what shape the country must have been in, in 1787, for our founders to have undertaken the monumental task of travelling to Philadelphia, and spending over three months in the oppressive summer heat crafting the Constitution.

    From Hamilton’s writings, it seems the national government did not have enough funds to operate, the states were not being adequately protected from domestic uprisings such as Shays Rebellion in Massachusetts, and the founders foresaw long term problems in the unequal way taxes were being collected from the states through quotas.

    How are these Federalist Papers relevant today? The United States of 2010 is again in a period of challenging times. A shaky economy, threats from our borders, and protesters from groups such as SEIU that are increasingly bold and unruly. Most recently to the point that Nina Easton, a member of the media who would normally support the rights of protesters, has openly condemned a group of over 500 who showed up next door to her home, on the lawn of her neighbor, Greg Baer.

    All the while, the national government seems to be ever growing and reaching, employing the “Star Trek” principle: Boldly Going Where No United States Government Has Gone Before – running our auto companies, our health care system, and even trying to dictate what types of food we eat!

    For those who are unhappy with the course of our country, there is solace in Alexander Hamilton’s words:

    Where the whole power of the government is in the hands of the people, there is the less pretense for the use of violent remedies in partial or occasional distempers of the State. The natural cure for an ill-administration, in a popular or representative constitution, is a change of men.

    Thanks to our Constitution, and our republican form of government, there is a structure in place to change the course of the country, and get back onto the path envisioned by our founders, the path of individual liberty, limited government, and free enterprise.

    Tough times in 1787 sparked an amazing document that has guided our country for over 200 years, now the oldest federal constitution in existence.

    What positive outcome will the tough times of 2010 produce? I am praying it will be a rekindled passion for the United States Constitution, and the founding principles of our country – the principles that have allowed us to be, in Janine Turner’s words, “America the beautiful, America the hope.”

    Good night and God Bless!

    Cathy Gillespie

  12. Debbie Bridges says:

    I was really surprised when I read the argument for the Consumption Tax. We have this same idea being raised and fought for today with the Fair Tax. The IRS has become way to powerful and invasive and the tax system in our country is broken just as it was back when we were under the Articles of Confederacy. I have been learning so much from these posts and will continue to read and eventually catch up with everyone.

Guest Blogger: Dr. Will Morrisey, William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College

Thursday, May 27th, 2010

The Federalist #22: In Defense of Politics

Publius here concludes his critique of the old constitution, the Articles of Confederation, a critique he began with Federalist #15.  To understand this critique, we need to step back and consider the problem the Founders intended to solve: Can modern states practice politics?  This seems an odd question.  There seems to be no shortage of politics in the modern world.  And why should politics—messy, compromising, frustrating, roiling politics—be something anyone would want to encourage, anyway?

Undeniably, politics has aroused the interest of the greatest minds: Plato titles his most famous dialogue Politeia, which means “regime”; Aristotle devotes an entire book to politics.  In that book, Aristotle points to the family as the embryo of politics; in the household we can see the DNA of political life.  Aristotle identifies three kinds of rule within every family: the rule of master over slave, whereby the ruler commands the ruled for the benefit of the ruler; the rule of parent over child, whereby the ruler commands the ruled for the benefit of the ruled; and the reciprocal rule of husband and wife, in its proper form a consensual rule animated by discussion and compromise—“ruling and being ruled,” as Aristotle puts it.  An overbearing spouse acts like a master or parent toward one who does not by nature deserve to be treated like a slave or a child.  Genuinely political rule consists of this consensual rule, rule along the marital rather than the masterly or parental model.  In human societies only tyrants attempt masterly rule, only kings attempt to rule as if they were fathers of their countrymen.

The small, ancient polis and the larger feudal communities lent themselves readily to political rule.  In a polis, where everyone knows everyone else, unquestioned rule of one over many seldom lasts.  Under feudalism, the presence of numerous titled aristocrats, each with his own independent source of revenue and of military recruits, will not submit to tyranny forever, as King John of England should have learned at Runnymede, but didn’t.

By contrast, the political engine of the modern world, the state, threatens to put an end to political rule, to make all rulers rule in masterly/tyrannical or parental/ authoritarian modes.  Large and centralized, the state can mortally compromise all independent bases of authority in its domain, repressing any need to discuss or compromise.  At the same time, the very power the modern state marshals requires all neighboring societies to institute states of their own, upon pain of conquest.

The Founders thus attempted something that seemed impossible: To constitute a modern state that is sufficiently powerful to defend itself against other states but nonetheless political, not masterly or tyrannical.  They solved the problem in principle by adopting and refining the idea of federalism.  A single, centralized state stunts political life, but if that state can be made to consist of a set of smaller communities, each with governing to do—townships, counties, and smaller states, all with their own responsibilities, and their own elected representatives—then politics can continue to flourish in the modern world.

Why should we want it to?  Because, as Aristotle argues, human beings differ from all the other animals in their capacity to speak and reason: If I say `Jump’ and allow you to say no more than, `How high?’ you may be speaking but you are not reasoning.  Your character as a human being suffers.  In political life, you can talk back. To be sure, at some point, you will run up against the `being ruled’ side of the Aristotelian equation.  But so will everyone else.

The Articles constitution tried to protect political life by keeping most of the American states small enough to feature political life but strong enough to be sovereign—even as, in federation, they multiplied their strength to fend off enemy states.  As Publius has argued in this series, however, the Articles constitution contradicted itself.  The general or federal government could only raise revenues and soldiers with the consent of the member states.  But there can be no “sovereignty over sovereigns.”  Disunion threatened.  Foreigners sneered and circled for the kill.

Publius lists seven additional defects of the Articles, all of them flowing from this overarching defect.  As seen in #21, the first three of these defects are the lack of sanctions for violations of federal law; the lack of any guarantee of mutual aid in case of usurpation within any one state; and the lack of any common standard for determining the revenues each state owes to the general government that protects them.

Publius now turns to the remaining defects, both material and moral.  Materially, the structure of government under the Articles constitution impedes national commerce by allowing member states to enact protective tariffs against one another.  Morally, this inclines each state to treat others as “foreigners and aliens”—the way Europeans do. Materially, the federal government also wields inadequate military strength, as states remote from the battlefields have little incentive to contribute men or material; morally, this leads to “inequality and injustice among the members.”

Speaking of inequality and injustice, equal representation of each state in the unicameral Articles Congress “contradicts that fundamental maxim of republican government, which requires that the sense of the majority should prevail.”  Why will—why should—New York and Virginia long tolerate a government that allows tiny Delaware or Rhode Island to hamstring it?  Especially if the legislatures of the small states were to fall under the influence of foreign powers, and not republican ones.

To these economic, military, and political defects of the existing government, Publius adds another problem with the legal system.  Not only does it have no power to enforce Congressional laws, it lacks a federal judiciary to oversee “a uniform rule of civil justice.”  Without a federal judiciary, encroachment of federal authority by the states can find no defenders beyond the military; force, not law, will rule.

The Articles government has only one ruling institution, the Congress.  The absence of other independent but complementary branches of government might have undermined genuinely political life in the United States, except that the framers of the Articles made the Congress more or less impotent vis-à-vis the member states.  But this caused another problem.  Unqualifiedly sovereign member states will incline to violate the fundamental law of contract, of government by consent: That no party to any contract may excuse himself from the terms of the contract without the consent of the other parties.

Therefore, the new constitution will require ratification not by the governments of the states but by the people of each state, and moreover by the people of states now to be united by the only true rulers of a republican regime.  This new governing contract, “flow[ing] from that pure, original source of all legitimate authority,” will supply the national means needed to secure the national ends listed in the Preamble.  Therefore, also, the new and more powerful wielder of those means, the federal government, can no longer rest in the hands of one ruling institution, but in the tripartite structure of legislative, executive, and judicial branches.  This newly-devised institutional structure for American self-government can preserve politics, reciprocal ruling-and-being-ruled, at the highest level of American government without necessarily exposing Americans to conquest by imperial monarchies.

Will Morrisey is William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College.

14 Responses to “May 27, 2010Federalist No. 22 – The Same Subject Continued: Other Defects of the Present Confederation, From the New York Packet (Hamilton) – Guest Blogger: Dr. Will Morrisey, William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College

  1. Shannon Castleman says:

    There are some people who condemn people like Hamilton for being the “first types of big government politicians, because of the desire for a National Bank, and stronger central government.

    In my opinion, these groups of Federalist essays proves those naysayers wrong.

    The “Federalists” didn’t want BIGGER goverment, they wanted a WORKABLE governmet. We need to put ourselves in Hamilton’s shoes, where we see a government not even strong enough to raise revenues, or strong enough t raise a military. Of course we needed a “bigger” government a that time, or we woul have gone the way of Europe.

    Hamilton would in no way support “bigger” government if he awakened in 2010 America.

  2. Susan Craig says:

    Genuinely political rule consists of this consensual rule, rule along the marital rather than the masterly or parental model.  While Publius makes a great argument against the Articles of Confederation, I seriously doubt that he wanted the political pendulum to have swung so far that the power to exercise it in a paternalistic manner [such as today]. Professor Morrissey is profound when he points out that A single, centralized state stunts political life, but if that state can be made to consist of a set of smaller communities, each with governing to do—townships, counties, and smaller states, all with their own responsibilities, and their own elected representatives—then politics can continue to flourish in the modern world.
    American states small enough to feature political life but strong enough to be sovereign—even as, in federation, they multiplied their strength to fend off enemy states.

  3. Charles Babb says:

    Hamilton seems to be saying that, if the proposed new constitution is not adopted and if the existing foundation of government (Articles of Confederation) can survive the aggression of greedy, self serving men, it will evolve, bit-by-bit, into a structure of government not desirous by anyone.

    Is this not exactly what has happened to our Constitution? Have not (career) politician’s ignored the obvious wishes of the electorate, hiding behind (and serving instead) the power of political parties. No longer do they just overstep Constitutional authority, they thumb their noses at us and stomp all over it.

    If this were not so, why would an elected official have to hide what goes on in her office from view of the “public” she (or he) swore an oath to serve.

    Few of them today, would acknowledge that “The fabric of American empire ought to rest on the solid basis of THE CONSENT OF THE PEOPLE. The streams of national power ought to flow immediately from that pure, original fountain of all legitimate authority.”

  4. Sorry guys, I thought I posted this last night.. I’ll check in later on Federalist Paper No. 22 :)

    Well, small business profits are on the decline and government provided benefits are on the rise. Carolyn, I read your blog and I also heard about these frightening statistics today. Socialism is rearing its ugly head. Next will be the general demise of spirit and motivation in our country. This exact scenario was predicted by Samuel Adams in his warning over two hundred years ago, “The pooling of property and redistributing of wealth are both despotic and unconstitutional.”

    As duly noted in last night’s reading of Federalist No. 20. We must learn from the experience of history. It makes no sense, and has been proven by history, that if a country becomes a nanny state and feeds the people’s every whim, punishes the hard working enterprising people, snuffs the spirit of business by taking over their free enterprise then the country and her citizens become mired down with a lack of motivation.

    If motivation is at a minimum, productivity ceases to prevail and if productivity ceases to prevail then there is no money for the nanny. If the nanny does not provide then the people rebel. When the people rebel then there is a need for a strong force to control. Enter Tyranny. Good-bye Democracy. Good-bye Republic.

    Carpe Diem. We must seize the day and reverse course while we can. This begins with knowledge and fortification. Wisdom whispers in the words of Publius.
    The answers are in the United States Constitution.
    Spread the word.

    God Bless,

    Janine Turner
    P.S. I thank you Horace Cooper for joining us today and for your brilliant insights

  5. Susan Craig says:

    Power corrupts, the founders tried to hedge the access to power so that absolute power could not be concentrated to corrupt absolutely.

  6. marjay says:

    The problem with the National Bank is that when it was created in 1913, it was privatized. Jefferson warned again that. The Federal Reserve Bank is not an entity of the federal government at all. It is a privately owned and operated business. This fact is not commonly known. The bankers who own it have benefit of the interest derived therefrom, coming from loans to the federal government, using money the bank has CREATED. That interest money belongs in the nations coffers, not in the hands of the bankers. Article 1, Section 8, gives CONGRESS the power to coin money and determine its value, not private BANKERS, which is how Lincoln financed the Civil War, after private bankers refused to loan him money. Giving congress that power was a marvelous arrangement, subject to voter approval every two years at election time. That power was delivered up to what I would call “tyrants” when my grandparents were children. The Federal Reserve has never been audited. No doubt such an audit, which should be mandatory, would reveal an amazing history.

  7. Roger Jett says:

    Charles Babb, While I can readily agree with much of what you said in your post earlier today, I have to ask you to rethink on a couple of things. First of all, I wished you had worded a little differently your phrases, ” The fabric of the American empire ought to rest on the solid basis of THE CONSENT OF THE PEOPLE. The streams of national power ought to to flow immediately from that pure, original fountain of all legitimate authority”. Some might think that I’m arguing semantics , but I don’t think that the two words, “American” and
    “empire” should ever fall side by side when the subject is regarding our government. Empires have a single sovereign ruler and they are usually referred to as an “emperor”. I believe what you are saying …. the point that you are emphasizing is that ” the people” are the legitimate authority upon which our elected government officials gain their powers. As Dr. Morrisey points out as he quotes Hamilton, that it is fundamental to a republican form of government which “requires that the sense of the majority should prevail.” However, I’d like to emphasize that under our Constitution there are protections of unalienable rights for the individual as well as rights to the minorities, that government must respect. What may become deemed as the “CONSENT OF THE PEOPLE”, is not necessarily a determinant of what is fair and in the interest of justice. Under that concept, a majority of my neighbors might up and decide to take some of my property for public benefit without making effort to give me just compensation. Fortunately the Constitution even protects us from ourselves in that sense. The stream you speak of is in reality not that pure.

  8. Charles Babb says:

    @Roger Jett; I certainly can’t argue that point; that was just a copy and paste of Mr. Hamilton’s words. That’s why I included the quotation marks.

  9. Carolyn Attaway says:

    I find it amazing that with all the writing of how America should form a Federal Government to ensure commerce and national security, the founders wanted to keep the integrity of the free market system sound and thriving. If we travel back to Jamestown, many historians debate that with the Virginia Company being a publically traded company, English America was a corporation before it was a country. Our roots are founded in the entrepreneurial spirit of risk, hard work, and reward.

    To borrow the words from the novel “Love and Hate in Jamestown” by David A. Price: In their war for independence and their struggle to create a constitution, the Founders themselves had shown the same pragmatic qualities of mind that rendered Smith a hero. The actions of Smith, like the actions of the Founders, also point to a shared outlook on life; one in which a person does not look inward and wait for life to reveal its answers, for life itself is the one carrying out the interrogation. More than most people, Smith and the Founders attempted to answer the questions that life was constantly asking them-or, rather, the single question it asked them, and asks us, over and over. Life presented them with a series of astonishing possibilities and all-engulfing obstacles, all the while whispering to them:
    What are you going to do?
    What are you going to do?
    What are you going to do?

    Have we come to that place in history again?

    One has to wonder when our country is being invaded by illegal immigrants of many nationalities by crossing the southern border, and you hear news like this:

    “US National Guard troops being sent to the Mexican border will be used to stem the flow of guns and drugs across the frontier and not to enforce US immigration laws, the State Department said Wednesday. The clarification came after the Mexican government urged Washington not to use the additional troops to go after illegal immigrants. President Barack Obama on Tuesday authorized the deployment of up to 1,200 additional troops to border areas but State Department spokesman Philip Crowley told reporters, “It’s not about immigration.” Link: http://www.breitbart.com

  10. Jimmy Green says:

    Hamilton’s desire to have a Federal Government regulate commerce between the states seems reasonable at first, forgetting momentarily of the disaster this has lead to today. It would I think allow developing a more standard set of trade rules and I suppose it would give foreign nations more confidence in one regulated system instead of dealing with thirteen colonies, or would it. I would almost suggest that left alone the states would develop a set of mutually advantageous trade rules to simply improve trade. Although still for foreign nations it is easier to negotiate one treaty not thirteen.

    I think more insightful of weakness in a confederacy is as Hamilton states “want of a judiciary power”. A federal court system with a Supreme Court that unifies and enforces the states with a uniform set of laws is paramount. Again momentarily forgetting the disaster those unelected oracles in robes unleashed on the states via the commerce act among others. It seems obvious any united anything requires a federal court system, or does it.

    On the issue of “equal suffrage among the states” it seems correct that in the Union through representation by numbers it would be better balanced. The state with a larger population would have more house members then a state of lesser population. However Hamilton’s belief that giving the minority the ability to stop or hinder the majority is wrong is not always practiced. In the legislature the filibuster by a single congressman is used to delay or obstruct a vote on some proposal or bill.

    Interestingly in the U.N. the Security Council is comprised of 5 countries but India with the second largest population after China is not one of them. I’m not sure how the U.N. would be classified. It’s a bizarre organization of the worst kind more akin to a dysfunctional feudal system then anything else.

    Many of Hamilton’s beliefs were correct in theory. With hindsight we can trace many of the losses of state sovereignty back directly to these arguments that Hamilton would have not imagined. However the expansion of the Federal Government is, I believe, a simple result of the complacency of the states and people resulting in a power vacuum the Feds were more then happy to fill.

  11. Roger Jett says:

    Charles Babb, Please accept my apology for the earlier post. As Andy Griffith once said, “the rest of the family is eating chicken for supper, but I’m having crow.” Also, just in case you are wondering, my foot size is a twelve and yes it was a tight fit even in my big mouth.

  12. Kay says:

    Thank you Dr. Morrissey for walking us through Federalist No. 22! Publius certainly covers a lot of ground in this Federalist Paper! If only our current elected officials would take the time to methodically explain major proposed legislation in this manner. Our “sound bite” culture and collective short attention span does not lend itself to deeply and thoroughly understanding the many issues facing us.

    The weaknesses of the Articles of Confederation were many: lack of federal regulation of commerce, including foreign commerce and interstate commerce; the weakness of the state quota system for raising armies; problems of equal suffrage among the states; the weaknesses of the 2/3 majority requirement for important resolutions ; lack of “one Supreme Tribunal,” and overall so many problems with the Articles of Confederation that they were not deemed fixable by amendment. Publius goes on to point out the weakness of a Congress with only one legislative body, and the final and most important flaw: The people never ratified the Articles of Confederation. It is with this final point that my favorite quote from Federalist 22 appears:

    “The fabric of American empire ought to rest on the solid basis of THE CONSENT OF THE PEOPLE. The streams of national power ought to flow immediately from that pure, original fountain of all legitimate authority.”

    One of the things I have enjoyed most about reading The Federalist are the quotes like the one above, that leap off the page, and speak to us so clearly, 223 years later. They encapsulate principles that our country has drifted from, and remind us of the intent of the founders. When these principles are followed, our country flourishes. When we drift from them, we stagnate.

    If only our founding fathers could come back today, and write a series of Federalist Papers where they analyze our current governmental structure in the same manner they analyze the Articles of Confederation, and methodically itemize all the places our country has deviated from their original founding principles. I have a feeling they would have a hard time confining their essays to 85!

    Good night and God Bless!

    Cathy Gillespie

  13. Why write many paragraphs when a few lines will do, three lines to be exact, from Alexander Hamilton’s Federalist No. 22?

    1. Though the genius of the people of this country..

    2. Its opposition contradicts that fundamental maxim of Republican government, which requires that the sense of the majority shall prevail.

    3. The fabric of American empire out to rest on the solid basis of THE CONSENT OF THE PEOPLE.

    Are these words being honored in our American government today?

    God Bless,

    Janine Turner
    May 27, 2010
    I thank our guest scholar, Dr. Will Morrisey, for joining us today!

  14. Jesse Stewart says:

    Shannon – thanks for your insight re: “big government Hamilton”; it helps to put it in perspective!

    What a wonderful group of commenters, what a wonderful exercise! I’m telling everyone I know about Constituting America.

 

Guest Bloggers: Troy Kickler, Ph.D., Director of the North Carolina History Project and Daren Bakst, J.D., L.L.M., Director of Legal and Regulatory Studies at the John Locke Foundation

Friday, May 28th, 2010

Federalist #23

When Alexander Hamilton attended the 1787 Constitutional Convention in Philadelphia, he was thirty-six years old.  Despite his young age he was a leading statesman, who was knowledgeable not only regarding current events at home and abroad but also the classics and the historical lessons that they contain. The future, first U.S. Secretary of the Treasury, Hamilton incorporated his political observations and knowledge into The Federalist.

Hamilton penned more than half of The Federalist essays.  In them, he pointed out the defects of the Articles of Confederation and argued that the Constitution and the powers that it enumerated to the national government were necessary for the Union’s survival.  To remain under the Articles, Hamilton contended, meant certain death for the Union, for the states would continually act in their self-interest and ignore the Union’s interest.  Laying the foundation for his reasoning in subsequent commentaries (24-29), the New York lawyer put forth this particular argument in Federalist 23: “The Necessity of a Government as Energetic as the One Proposed to the Preservation of the Union.”

When debating Anti-Federalists–those who questioned or opposed the Constitution’s ratification–Hamilton and other Federalists used the word “energetic” to describe a government that had power to fulfill its given responsibilities such as providing for a national defense.  An “energetic” government was not one that encroached on individual rights.  It meant simply giving life to a dormant national government and allowing it to exercise and fulfill its responsibilities.

In Federalist 23, Hamilton asks what are the proper duties of a national government.  He contends they are providing for the common defense, preserving public peace, regulating interstate commerce and foreign trade, and conducting foreign affairs.  For the remainder of the essay, Hamilton emphasizes why it is essential for the national government to provide for the common defense and what means are necessary for it to ensure the Union’s longevity.

To charge someone with a responsibility yet not empower them to perform their duty is imprudent.  That is what Hamilton believed.  In Federalist 23, he writes that if the national government is given the task of providing for the common defense then it should have the necessary authority to do so.  Even the framers of the Articles, Hamilton points out, understood this necessity: they allowed Congress to ask the states for unlimited requests for men and money to wage war; however, they erroneously trusted states to provide adequate goods and munitions and men for the national government to use at its discretion.  States many times ignored requests.

The assumptions of the framers of the Articles, Hamilton declares, were “ill-founded and illusory,” and he claims that states worked strictly for their self-interests. To make the Union last, a change in governmental structure, Hamilton contends, was imperative: power and the means necessary must be given to the national government to provide for a common defense.  To meet this particular end, Hamilton argues that the federal government should, in effect, bypass the states and “extend the laws of the federal government to the individual citizens of America.”

In regards to national defense, Hamilton believes it is “unwise and dangerous” to not give the national government power to provide for a common defense: the powers “ought to exist without limitation, because it is impossible to foresee or define the extent and variety of national exigencies, or the correspondent extent and variety of the means which may be necessary to satisfy them.” He reminds his political opponents that to withhold such means and power from the national government is counterproductive and welcomes national instability.  (Hamilton was aware of the lingering Anti-Federal skepticism and considered many of their objections to be merely nitpicking).

The change in government was needed to preserve national interests, and the proposed federal government was worthy of the people’s trust.  Hamilton and other Federalists believed, write constitutional scholars Colleen A. Sheehan and Gary L. McDowell, that “interest, reputation, and duty would bind the representatives to the Constitution and public opinion.”  That belief is expressed and implied in Federalist 23.

Although Anti-Federalists and Federalists waged a genuine and intense intellectual battle, both were concerned with protecting American liberties.  In many ways, they were champions of freedom and had much in common.  Both considered constitutions essential to the existence of a free society, and both believed that restraints should be placed on government.  Both would be horrified how far many modern-day lawmakers and constitutional theorists have strayed from original intent.

–Troy Kickler, Ph.D., is Director of the North Carolina History Project and Daren Bakst, J.D., L.L.M., is Director of Legal and Regulatory Studies at the John Locke Foundation.

 

Guest Blogger: Allison R. Hayward, Vice President for Policy at the Center for Competitive Politics

Monday, May 31st, 2010

Federalist 24

Allison R. Hayward

Federalist 24 continues Hamilton’s argument in favor of strong national government for national security purposes.  Here, he addresses the explicit complaint that the Constitution would permit standing armies in peacetime.

Critics of the Constitution feared that standing armies would become either a tool for those in power to seize power in perpetuity, or a means to usurp elected government with a military one.  Colonists in America were not far removed from the days of Oliver Cromwell, who after prevailing in the English Civil War became Lord Protector of England, Ireland, Scotland and Wales.  Quite possibly the families of many of the colonists reading the Federalist Papers migrated to the New World to escape Cromwell’s Britain (or the Restoration aftermath, plague, fire, and general 17th century misery).  Certainly many were familiar with the fall of the Roman Republic at the hands of the Roman General, Julius Caesar.   In any case, popular opinion would have feared standing armies as a destabilizing force and a threat to democracy.  This is thus a powerful argument that the Federalists need to answer.

Hamilton responds to these critics in several ways.  First he implies that these critics misinterpret the constitutional separation of powers.  He reminds them that the Constitution places the responsibility for raising an army with Congress, not the President.  Moreover, any appropriation may be for no longer than two years.  Under this division of authority, the election branch – Congress – which is most responsive to the public, must consent to military mobilization.  Unlike the Roman and English examples, sole military authority is denied the American Executive.  Moreover, the existing regime under the Articles of Confederation contains no standing army limit.  This fact allows Hamilton to imply that the anti-Federalist criticisms are disingenuous.

Moreover, notes Hamilton, the world poses security dangers to America apart from “formal” war.  The nation is bordered by territories of Britain, Spain and France, and much of the frontier is inhabited by native Americans.  Any of these could threaten Americans (and America) if the nation relaxed its guard.  Frontier garrisons in particular require support even during “peace.”  Finally, for American to meet its potential as a commercial power, it needs to build a navy, which requires outlays for dockyards –even in peacetime.  Hamilton argues that the Constitution properly leaves these decisions to Congress, the people’s elected representatives.

Today, the Pentagon’s proposed budget for the coming fiscal year is $708 billion, including a $56 billion “black budget” for classified programs.  About 1.5 million individuals are in the active service, about 560,000  in the Army alone.  Notwithstanding concerns voiced through time about the size, expense, and “military industrial complex” the United States has, since World War II, maintained a large professional armed force.  Moreover, it has done so under the supervision of the Executive – not, as Hamilton contended, under Congress.

Further, military spending is seen by many Congressmen as an important part of their representative role – not simply to keep the country safe, but to keep constituent military contractors profitable.  One wonders what Hamilton might have made of the current political “war” over the military’s budget, in which the Defense Secretary has demanded the end to certain programs.  Yet Congress insists on keeping them.

Allison R. Hayward is the Vice President for Policy at the Center for Competitive Politics.

7 Responses to “May 31, 2010Federalist No. 24 – The Powers Necessary to the Common Defense Further Considered, For the Independent Journal (Hamilton) – Guest Blogger: Allison R. Hayward, Vice President for Policy at the Center for Competitive Politics.”

  1. gianna cerullo says:

    Great Job Janine! I am impressed with your determination tho I am not at all surprised!

    I share your views : )

    Juliette is gorgeous !

  2. Susan Craig says:

    I have long felt that America has had a schizophrenic relationship with its military. Stemming from two factors: desire to be a most Christian nation living in peace, and a recognition of human nature. On one hand experience and faith (the insult of the British quartering of troops, desire to live in peace and threaten no man, and a belief that a military in the hands of a tyrant would threaten our liberty) inclined us to wish to do away with standing armies. On the other hand the recognition that the proven, visible ability to fend off invaders and threats allows for security and freedom (freedom requires vigilance). Out of these factors come our constant debate on things military. The Articles of Confederation left it in the hands of the States. In effect in today’s world it would be as if there were no regular army, navy or air force just the various guard units in each state. The opposing view was a standing force sole under Federal jurisdiction a permanent military such as was in existence at the time, uneducated and owing allegiance to the leader a separate ‘career’ path or class. What has developed is an amalgam of these two views a small voluntary standing military which depends in time of strife on a ready militia (national guard). The oath our military takes its oath from top to bottom “protect, preserve and defend the Constitution”. It, also, chooses from educated or those who wish to be educated not from those lacking knowledge or understanding. All of those in the military are instructed as to what is or is not a lawful order and are encouraged to resist any unlawful instruction. Yet to this day we still have the debate how much is sufficient and necessary. We continue to think that a “Peace Dividend” is to be had by the reduction and/or elimination of a standing military.

  3. Fred Mars says:

    I am a Philadelphia-born Constitutional Libertarian, which is to say that I am not talking about a political party, I am referring specific ideology and not a party platform.

    Above all, I feel that the Constitution as it was written, including the Bill of Rights, which is part of the Constitution, And the articled of Confederation from which this nation was born, are the only things that stand between freedom and tyranny. That being said, it is also as relevant today as it was in 18th Century America, that we still require the vigilance of citizens to protect the liberties granted to the people at this nation’s founding.

    Sometimes it seems that we are being attacked from many sides, and I do not doubt that it is accurate. We have always been loved and hated by other nations, but mostly we are resented for the very freedoms we enjoy.

    All Americans must stand together as one voice in demanding that our Congress repeal the damage caused by the 16th and 17th Amendments, charge Congress with it’s obligations to coin (and print) currency and set the value thereof (and use gold/silver to give it real value) and end the extortion of the Federal Reserve System and it’s collection agency the Internal Revenue Service.

    Return the selection of Senators to the State legislatures, who we have elected to represent us in our sovereign States, and remove the two party system from its monopoly on the electoral process.

    Instead of election day, each State may have an election week, and hand-written ballots used instead of electronic machines and mail-in ballots. Because of the importance of votes, it must be done in such a way as to insure the integrity of the system for all citizens.

    We must save our nation by restoring Constitutional integrity to the federal government, and control of the armed forces returned to Congress. The President only assumes status of Commander in Chief when a war is declared by Congress, and then power is voided after the war is over or two years unless Congress acts too extend the war and hence Presidential powers beyond two years. But not in perpetuity.

  4. It is interesting that in the early days of the republic, people feared a standing army. The Pennsylvania and North Carolina Constitutions went so far as to say, “As standing armies in time of peace are dangerous to liberty, THEY OUGHT NOT to be kept up.” This was a legitimate fear, based on history, as Allison Hayward points out in her essay today. (Thank you, Allison, by the way, for your second Guest Blogger essay!! We appreciate your insights!!)

    Our founders addressed this possible threat to the peoples’ liberty by placing the power of Commander in Chief with the executive branch (Article II, Section II of the Constitution), but the power to raise armies with the legislative branch (Article I, Section VIII of the Constitution). And they even included a clause which forbade the appropriation of money for the support of an army for any longer period than two years, as a precaution to keeping troops without necessity.

    Today, on Memorial Day 2010, most Americans look at our military not with the suspicious eye of our forefathers, but with heartfelt pride and gratitude. Two days ago Rasmussen announced a poll showing that 74% of Americans have a favorable view of the U.S. Military. Only 12% had an unfavorable opinion and 13% weren’t sure.

    I believe part of this strong support for our troops is due to the founding fathers’ wise use of checks and balances in structuring their control. The abuses that the anti-federalists feared have not come to pass.

    An equally important factor responsible for American support of our troops is the quality of the men and women who, since the elimination of the draft, have chosen to serve. These are brave, selfless men and women – fathers and mothers – who leave their families for years at a time to go to foreign lands and defend freedom. These members of the armed services make sacrifices in their personal life, their financial life, their physical and mental health, and sometimes make the ultimate sacrifice, all to defend our liberty. I am honored and blessed to count many active duty members of the military as friends, and I cannot think of any people with higher character, sense of patriotism and duty to country than these service members.

    God bless those who have sacrificed their lives in defense of our freedom, may God be with their families, and may God be with and bless our active duty military and veterans. Our country owes you all a huge debt of gratitude. Thank you, from the bottom of our hearts.

    Cathy Gillespie

  5. Susan Craig says:

    @Fred, welcome. I consider myself a fiscal and social conservative with libertarian leanings. As I continue to read the Federalist debate and early American History while watching the shenanigans of today, I must say I could inveigh against all factionalism along with the most vehement of our Founding Fathers. I see it in the stasis in Washington and it is part and parcel of the intellectually incurious who have voted the line since Methuselah was in diapers.

  6. Gary Tillery says:

    As a veteran, I stand with other Veterans who have served this nation with dignity, courage, and honor. In our time, which young people today see as antiquated, we saw the Constitution as a document representing the very heart of America. Even though we were divided by different beliefs in life the Constitution was the very umbrella that kept us united as one people. Different states (republics) but one nation. It was to be honored,cherished, and respected. Due to that belief, when we as veterans went to battle to serve our nation we did so with committment, dedication, pride. Unfortuinatley, people today do not talk this way anymore for they have so taken the Constitution and freedom for granted that they, as we speak, are in danger of losing their freedom.
    The Constitution is like the Ten Commandments – When we look at them both is reveals to us the goals we strive to reach. Yet, at the same time it shows us our weaknesses and vulnerablities. When we vote, we should look and ask each candidate their interpretations of the Constitution and how their campaign is based on the Constitution. Yes, They need to prove themselves from here on out. We can no longer take their word for anything. I would be interested in how many of our politicians today truly can tell you about the FEDERAL PAPERS and the CONSTITUTION. Because by the actions of our some current government officials they do not mind violating it.
    It is our obligation, as young and old Americans, to protect the Constutution and remove any politician that violates it. That is why we all, old and young, need to know the Constitution and keep it in the forefront of our minds when it comes to politics. For those of us who served, risked, and watched friends die, it is heart wrenching to see the real threat of Socialism creeping in the back door knowing that all the sacrifice could be for nothing if our children/grandchildren live under any other form of government than a Constitutional Democracy. For God and Country. God give the youth of today the courage to stand for Democracy.

  7. Maggie says:

    @ Gary….I agree with everything you said, with the exception of our children living under a Democracy. We are NOT a democracy…we are a Republic. This is one of the big problems we have today. People don’t even realize what form of government we are supposed to have. How, then, can they protect and keep it?

Guest Blogger: Joerg Knipprath, Professor of Law at Southwestern Law School

Monday, May 31st, 2010

Alexander Hamilton began his Revolutionary War service as a member of a New York militia unit. He then joined the Continental Army as an artillery officer and became General Washington’s adjutant in 1777. After resigning that post, he persuaded Washington to give him a position as a field commander at the decisive Battle of Yorktown in 1781. From his experience as line officer and staff member, Hamilton was well aware of the capabilities of a trained army and those of the militia. More, in 1783, the Confederation Congress had appointed Hamilton to head a committee to investigate the creation of a standing army.

That background stands out in Federalist No. 25. Supporting Congress’s power to create a standing army, Hamilton rejects the argument that, if there is to be such an institution, it should be under the control of the states. Hamilton also rejects a more moderate position supported by Brutus and other Antifederalists that the national government be permitted to raise and keep troops for frontier duty and to counter threatened attacks, but not to keep armies generally during peacetime. He uses a rather trite “where-do-we-draw-the-line” argument to defend drawing no line at all. Brutus has a ready response: Just specify the purposes for which peacetime troops may be raised and kept, and require a two-thirds vote for Congress to act.

But, rejoins Hamilton, “how easy would it be to fabricate pretences [sic] of approaching danger?” A peacetime army might be kept up, through collaboration between Congress and the President, on the flimsiest of excuses and for however long they judge the danger to exist for their own political ends.” Hence, there should be no restriction on Congress’s power to raise and keep a peacetime army. Because a limited power might be abused, there must be an unlimited power? It is this logical leap that the Antifederalists reject.

Hamilton raises an important broader point here, namely, the use of contrived crises not only to justify military action, but any government action. As Publius notes in several other essays, government thrives on crisis, while individual liberty shrivels. Power flows from the individual to government, from local governments to the central government, and from the legislative and judicial branches to the executive. Such crises fuel an explosion of political energy that produce dangerously excessive unity over individuality, and conformity over liberty, at least temporarily. Government officials gain from such crises, be they real or contrived. “Never let a good crisis go to waste,” is a brilliantly apt aphorism of this phenomenon. Wars and natural disasters are real crises, but one frequently hears crisis terminology used to describe more run-of-the-mill political issues, from “wars” on poverty and drugs to health care and obesity “crises,” to justify government intrusion into individual autonomy. Not long ago, there was even a “hidden” child care crisis, with government efforts made all the more critical because the crisis was so insidious no one recognized it.

Hamilton also anticipates the assertion that the militia suffices for the national defense, an argument he roundly rejects. This was a particularly sensitive ideological issue for Americans of the time. The myth of the citizen-soldier was a powerful republican tale. The ideal soldier was Cincinnatus, the Roman consul-turned-farmer who was subsequently called to be dictator and general during a war, which offices he resigned upon successful completion of the military campaign. He then returned to his farm. Making this republican myth concrete for Americans was that they had their own Cincinnatus in the person of George Washington. Revolutionary War officers formed the Society of the Cincinnati to promote this republican ideal.

The militia embodies the ethos of the citizen-soldier. Hamilton pays due homage, but recognizes the inferiority of the militia to a regular army in sustained military operations. “The American militia, in the course of the late war, have, by their valour on numerous occasions, erected eternal monuments to their fame; but the bravest of them feel and know, that the liberty of their country could not have been established by their efforts alone, however great and valuable they were.” As he noted in Federalist 24, even in peacetime the militia would be unsuited to perform regular soldiering duties such as guarding the frontier. “The militia, in times of profound peace, would not long, if at all, submit to be dragged from their occupations and families, to perform that most disagreeable duty.” Worse, he declares, is the economic inefficiency of compelling the militia to such service, produced by a loss of labor and industrious pursuits and by the expense to the society of frequent rotation of the militia. Since militia service was universal for adult males of a wide age range, such burdens would be even more objectionable than if they fell on a body of citizen volunteers, such as today’s National Guard.

Our current military system depends on a combination of a professional standing army in active service and volunteers in the National Guard and in various reserve units. The system has advantages in training and professionalism, which become more important as the technology in fighting becomes ever more complex. The war-fighting skills of the massed citizen soldiers of the ancient Athenian hoplite formation or of the Roman legion were relatively simple to master. Today’s warfare is infinitely more complex, and continuous campaigns are measured in years, not weeks. Relying on citizen-soldiers, even volunteers in the National Guard, for long commitments produces hardships and economic dislocation, as news reports often point out. This is well worth remembering when politicians blithely call for a state’s national guard to be deployed to guard the frontier against trespassing aliens, or when cuts in the defense budget are proposed while the scope of military commitments abroad continues at a high level.

An expert on constitutional law, Prof. 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.  Prof. Knipprath has also spoken on business law and contemporary constitutional issues before professional and community forums.  His website is http://www.tokenconservative.com.

15 Responses to “June 1, 2010Federalist No. 25 – The Same Subject Continued: The Powers Necessary to the Common Defense Further Considered, From the New York Packet (Hamilton) – Guest Blogger: Joerg Knipprath, Professor of Law at Southwestern Law School

  1. Susan Craig says:

    On an average there is at least one sentence per paper that brings me up short. This papers contribution is: “If the representatives of the people betray their constituents, there is then no resource left but in the exertion of that original right of self-defense which is paramount to all positive forms of government, and which against the usurpations of the national rulers, may be exerted with infinitely better prospect of success than against those of the rulers of an individual state.”

  2. Ron Meier says:

    Some interesting stats to consider. About 60 years ago, before the Korean War, our population was about 150 million; today it’s about 310 million. Before the Korean War, we had a standing peacetime Army and Marines of about 15 Divisions; today, our standing Army and Marines, in time of war, is about 13 Divisions. Before the Korean War, we were not at war; today, we’ve been at war for 9 years and yet have not increased the size of our active Divisions. We’ve actually decreased them, in spite of a 100% increase in population. I don’t know what an appropriate size is of a standing military in time of peace, but it seems to me that, during a time of war, there should be some kind of increase. I don’t think our current military size is a threat to our population, given the 100% increase in popluation and the decline in the standing military, but I do think that it is inadequate to perform our multiple missions without having our professional volunteers burn out with family stress that comes from the multiple deployments that are today’s reality.

  3. W. B. Neate says:

    First let me add my thanks to Janine and Cathy for this wonderful forum.

    I would agree with Ron Meier that in the manner our military has been used our smaller force has caused undue hardship on those who serve and their families as well. I would suggest, however, that with our superior military technological capabilities, we have badly mismanaged the use of our forces.

    The scope and techniques of our armed forces activities are dictated by our political leaders. Of the 535 members of the 111th Congress only 121 are veterans. This is less than 25% and this percentage declines with each new congress. The major concerns seem to be political correctness and collateral damage. I don’t think political correctness was even a “buzz phrase” during WWII and had we been overly concerned about collateral damage we would have never dropped the atomic bomb which ended that great war. I am not a war monger but do believe that whatever might we have we should be willing to use if we are to engage in warfare and I am much less concerned about collateral damage in foreign lands than I am about the lives of our young men and women who serve so selflessly. War is hell and “playing nice” is not only too costly but encourages our adversaries.

    Having stated this position I would like to suggest that there exists at least three good reasons for required national service; 1) fresh troops to take some of the burden from our career military personnel, 2) a larger pool of those who have truly served our country from whom we might choose future leaders and 3) a larger number of future Americans with greater sense of national pride that can only be gained via service to country or close relationships with those who serve. As a Viet Nam era veteran I can assure you that I see this deep sense of patriotism diminishing as time goes by.

    Please note that in the preceding paragraph I used the phrase “required national service” as opposed to suggesting a re-institution of the draft. I think all young people should serve but also think they should have the choice of opting out of military service if they choose. We have plenty of other areas where service could be applied.

  4. Susan Craig says:

    @W.B., I agree about the ‘required national service’. If it can be kept out of the political paws, I think things like Vista and Peace Corps should be offered as viable options for national service.

  5. Jimmy Green says:

    It’s natural to accept a professional standing army as better equipped and trained than a militia and the control resting in the Federal Governments hands instead of the states is obvious to me. Hamilton’s experience in the military makes this quite clear. I believe he short changes himself somewhat by not heeding more seriously the concerns about the inherent dangers of our liberties that could result from a standing army. I have not yet read the anti federalist papers but the point mentioned by the Anti federalists according to Prof. Knipprath “that the national government be permitted to raise and keep troops for frontier duty and to counter threatened attacks, but not to keep armies generally during peacetime”. Seems to be a practical approach. This would be somewhat like a trip wire giving us warning of an approaching storm without incurring the high cost and inherent dangers of a continual standing army.

    Under the scenario of the Anti Federalists I wonder if our military would have been used in past conflicts such a Somalia or Bosnia or any U.N. police actions which I doubt the founding fathers would have agreed with. Also something that bothers me were incidents such as the Pennsylvania mutiny in 1783 by a small part of the Continental Army over pay. If I remember this was one of the reasons the Federal Government relocated away from Philadelphia and eventually established the federal district of Washington D.C. Is there any chance of this reoccurring if our economy takes a serious nosedive beyond anything we have experienced so far?

    George Washington in his farewell address stated “Overgrown military establishments are, under any form of government, inauspicious to liberty, and are to be regarded as particularly hostile to republican liberty.”

    Another General who became president, Dwight D. Eisenhower warned in his farewell speech of 1961 “In the councils of government, we must guard against the acquisition of unwarranted influence, whether sought or unsought, by the military-industrial complex. The potential for the disastrous rise of misplaced power exists and will persist.”

    I grew up as a kid on a Marine Corps base “Camp Lejeune” so I know the professionalism and power of our armed forces. In reading history it seems some of our most prominent members of America and other countries understood the value of a standing army but also gave us stern advice on the inherent dangers. Let’s hope we understand both clearly and use the military in the interest of our country only.

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

    Sometimes it is beyond reach to put ourselves in someone else’s shoes and feel, to the most heightened sense, what it would be like to say good-by to our loved ones for perhaps the last time. Do we take the time to feel empathy for the soldier who has to walk away from his family – mother, father, wife, husband, daughter, son – to be potentially killed out in the field – to die away from family – in perhaps some distant land, in enemy territory, on foreign soil? How frightening this would be.

    It is difficult in our daily lives that are hectic with work, pressures, commitments and family responsibilities to really pause to think about the sacrifice our men and women in uniform have made and are making to protect us. Our men and women in uniform were and are the brave, the special, the few and the truly great patriots. Without these soldiers, we, America and Americans, would not be here – plain and simple. The air we breathe, the land we walk, the sky we sketch, the country we call home, is because of the sacrifices of our men and women in uniform.

    No matter which war they called their own, they all fought the enemy, whether near or far, whether boots were on the ground, in the air or on the sea, whether the enemy was present or premeditating. As Alexander Hamilton expressed in Federalist Paper No. 24, “ cases are likely to occur under our governments, as well as under those of other nations, which sometimes render a military force in the time of peace, essential to the security of the society.” Thus, an actual battle or a state of ready alert has served the same purpose – the enemy was to know and knew that he would not prevail against men and women who had the Divine right of liberty in their soul, passion in their hearts and the supreme strength of military readiness.

    Memorial Day is the day to set aside time and sit down with our children and teach them about our wars and war heroes. It is a time to teach them about the Revolutionary War and the reasons why we fought it. They should know about the soldiers who walked barefoot in the snow, leaving the stain of their blood on the ice and about those soldiers who died miserable deaths as POWs in the stifling bowels of the British ships at sea. They should know about heroes such as Paul Revere, Israel Putnam and Nathan Hale who said, “I only regret that I have but one life to lose for my country.”

    We should take a moment during our Memorial Day season, and everyday, to pray for our men and women in uniform. We should teach our children about those who served in the War of 1812 when the British returned, how they burned down the White House and how President James Madison’s wife, Dolly Madison, ran to save the portrait of President George Washington.

    They should know about the Civil War, why we fought it and how thousands of our soldiers died from a new type of bullet that shattered their bones. They should know about the horrors of slavery, how it had permeated the world throughout history and yet how, according to William J. Bennett, “the westerners led the world to end the practice.” They should know about how Americans fought Americans claiming hundreds of thousands of soldier’s lives.

    They should know about World War I and how the soldiers lined up in rows, one after the other, to be shot or stabbed by swords. They should know about World War II and the almost inconceivable bravery of the soldiers who ran onto the beach to endure the battle of Normandy, which claimed thousands of American lives. They should understand what history has to teach us about the mistakes in politics that bred the tyrants who led millions to slaughter. As Publius teaches us, we should not rule with reason but upon the strong foundation of the lessons of history.

    They should know about the Korean War, the Vietnam War and the Communist Regimes that ripped the souls from its people. They should know that our soldiers did not fight or die in vain in Korea or Vietnam because even though the enemy was physically in their field, the enemy’s propaganda permeated and thus threatened our field.

    They should know about the soldiers who stood on alert during the Cold War and their willingness to die. (My father is a West Point Military graduate and served in the Air Force. He was one of the first to fly twice the speed of sound, Mach II, in the 1960’s. He flew the B-58 Hustler and was ready to die on his mission to Russia when his country called him to do so.) The cold war was won by the ready willingness of our brave soldiers in uniform and a country who was militarily prepared.

    A prepared state is a winning state. Alexander Hamilton wrote in Federalist Paper No. 24, “Can any man think it would be wise, to leave such posts in a situation to be at any instant seized by one or the other of two neighboring and formidable powers? To act this part, would be to desert all the usual maxims of prudence and policy.”

    Today, we fight in Iraq and Afghanistan. We fight the insurgencies at our borders most especially in Arizona, Texas and California and we fight an elusive enemy that is creeping into our fields. They are creeping both from abroad with violence and from within with the slow usurpation of our founding principles. Alexander Hamilton warns in Federalist Paper No. 25, “For it is a truth which the experience of all ages has attested, that the people are commonly most in danger, when the means of injuring the rights are in the possession of those of whom they entertained the least suspicion.”

    A strong and honest government based on the Constitution and ruled by the people through the Constitutional Republic will prevail but only if we, as citizens, know about it and only if our children are raised on the fruits of this knowledge. As Alexander Hamilton states in Federalist Paper No. 25, “It also teaches us, in its application to the United States, how little rights of a feeble government are likely to be respected, even by its own constituents.”

    Wars are fought physically and wars are fought mentally. As civil servants we must be alert to the enemy that is amongst us. Alexander Hamilton states in Federalist Paper No. 25, “…every breach of the fundamental laws, though dedicated by necessity, impairs that sacred reverence, which ought to be maintained in the breast of rulers towards the constitution of a country…”

    On this Memorial Day season, we begin our mission with an education of the thesis and basis of our country – what we fight for – the United States Constitution and the wisdom, freedoms, righteousness and structure that it upholds.

    May God bless all of our service men and women past, present and future, who have fought valiantly for these principles.

    God Bless,

    Janine Turner
    June 1, 2010

  7. W.B. Neate – I thank you for your kind words! And I thank all of you great patriots for joining us and for being a part of our blog. I am learning so much from your perspectives!
    God Bless.. Janine

  8. Susan Craig says:

    To Professor Joerg Knipprath: Thank you I look forward to each of you posting with anticipation.

  9. Great comments again, and, as Janine writes, especially fitting on Memorial Day. Susan, that quote is from Fed. 28, I believe, but it is a very important principle that many of the founders had actually lived. It also fits well with the historical purpose behind the Second Amendment, which protects people’s right to own weapons. Although that right extends to personal self-defense, those who adopted it were keenly aware of the right of self-defense against a tyranny by the people organizing themselves into a militia. Kind of a “nuclear option,” if all other means have failed. But that’s a whole other topic.

  10. Greg Zorbach says:

    Upon reading #24 this caught my eye: “…a conduct of this kind has too much the appearance of an intention to mislead the people by alarming their passions, rather than to convince them by arguments addressed to their understandings.” I found myself thinking not of today’s army or navy, but rather the current administration’s response to the immigration, financial and health care ‘crises’. Then today, right on cue, Professor Knipprath’s comments on #25: “Hamilton raises an important broader point here, namely, the use of contrived crises not only to justify military action, but any government action.”
    One of the basic differences between the two political parties, or if that is too confining for your tastes, for those on the left vs. those who are ‘conservative, is that the statists (as Mark Levin accurately calls them) believe that government is the answer to all problems. But the basic inconvenient truth countering that is that our country was founded on the premise of individual liberties and limited government. These days even the most sincere calls for civility and ‘bipartisanship’ can’t bridge that divide.
    That statist mentality is what leads the left to call for all solutions to be ‘comprehensive.’ How else could the government solve a problem if its not a total-control solution.
    I have detected a similar strain in some of these blogs. Don’t get me wrong, this forum and all of its participants are demonstrating exactly the kind of involvement required in these times. However, we cannot realistically expect a complete and immediate return to the kind of government we are reading about in these timeless papers.
    History teaches us a lot. And, it has much to teach us about the time that this great country has been in existence (i.e. since these papers were written). For instance, all of these concerns about standing armies have been proven to be groundless. As one of the Pope Pius’s put it (paraphrasing here) there has been no greater institution for good in the world than the United States Army. General Colin Powell put it this way: “In all the wars America has fought in this century, we have sought no more land in conquest than enough to bury our dead.”
    Re. Jimmy Green: George Washington also said this: “To be prepared for war is one of the most effectual means of preserving peace.”
    More applicable quotes:
    “Let us speak courteously, deal fairly, and keep ourselves armed and ready.” –Theodore Roosevelt
    “Whatever enables us to go to war, secures our peace.” –Thomas Jefferson
    “The urge to save humanity is always a false front for the urge to rule it.” — H.L. Mencken

  11. Juliette’s newest video about our contest: http://www.youtube.com/watch?v=pNnhC3F5nJE

    We are almost one month away from our We The People 9.17 Contest entry deadline of July 4. We need everyone’s help in recruiting kids to enter! We have been told email is the most effective means of recruiting entries and spreading the word, so please feel free to cut and paste this blog and circulate it to your email list.

    Constituting America is seeking high school students to submit entertaining short films, public service announcements, cool songs, and of course, essays by July 4th for our We The People 9.17 Contest!! We have a good number of essays, but not as many short films, public service announcements and songs as we were hoping for, so if you know any high school students who have a talent for making movies, or composing and singing songs, please direct them to: http://www.constitutingamerica.org/downloads.php for more information, rules and to sign up online! Prizes for high schoolers include $2,000, a trip to Philadelphia on September 17 (Constitution Day), and Governor Huckabee has invited the contest winners on his show! The National Constitution Center has offered to show the winning short film in their theatre, and highlight our contest winners in their Constitution Day events.

    Constituting America is seeking Middle School Students to enter cool SONGS and well written essays!! We have a good number of essays, but not as many songs as we were hoping for! Please spread the word to any Middle School kids you know, especially those who like to compose and sing, and direct them to: http://www.constitutingamerica.org/downloads.php for more details, and to sign up online!! Prizes for Middle School kids include gift cards, publicity on the Constituting America website, and other cool surprises!

    And, calling all Elementary Schools kids who like to write poems or draw! We need poems, and art for a holiday greeting card! Again, please see: http://www.constitutingamerica.org/downloads.php for rules and details, and to sign up for the contest online!! Prizes for Elementary School kids include gift cards, publicity on the Constituting America website, and other cool surprises.

    If school is still in session in your area, please contact social studies teachers, art departments, music departments, and theatre/film departments! This is a great project to fill those last days of school when teachers have possibly run out of curriculum or want to give students a chance to earn some extra credit! Church youth groups are another possiblity. And if anyone has ideas or ways to get the word out to the military about this contest, we would love your help in doing so!

    As for Federalist No. 25 – first of all, thank you Professor Knipprath! I echo Susan in saying I always look forward to your posts. And what a beautiful essay Janine wrote on Federalist 24 & 25. I am not sure I have ever read a better tribute to the troops for Memorial Day. Like Greg, Professor Knipprath’s line: “Hamilton raises an important broader point here, namely, the use of contrived crises not only to justify military action, but any government action,” especially resonated with me. It seems that more and more frequently, “crisis,” is used to justify the government creeping into areas of our lives, and the marketplace, where our founding fathers never intended it to go.

    In Federalist 24, Hamilton used a phrase I love – he describes the American people as “so jealous of their liberties.” If we can once again become a people educated about and “jealous of our liberties,” we can begin to roll back some of the government encroachment the founding fathers tried to guard against. We must stay alert and awake!

    A hard task at 2:26 a.m. as I write this post!

    Good night and God Bless,

    Cathy Gillespie

  12. Susan Craig says:

    Oops caught me out; reading ahead the quote is as you say, Professor.

  13. ryan says:

    Professor Knipprath is my absolute favorite guest blogger. Today’s is particularly excellent!!

  14. Susan Craig says:

    I’m with you, Ryan. I especially like that he revisits his blogs and adds clarification and answers questions.

  15. Neb Witt says:

    Sorry for the delay in posting, I wanted to read the essay first. I must say these are really remarkable. They have debates a lot like my grandparents said used to happen when they were kids.

Guest Bloggers: Daren Bakst, J.D., LL.M., Director of Legal and Regulatory Studies at the John Locke Foundation and Troy Kickler, Ph.D., Director of the North Carolina History Project

Wednesday, June 2nd, 2010

At the start of Federalist No. 26, Alexander Hamilton addresses the challenging balancing act required between legislative power and liberty.  Using this as a jumping off point, he makes the case that the legislature must have the power to provide for the national defense.

While he acknowledges the balancing of interests, he argues that the scales tip toward having strong legislative power when it comes to national defense.  Restraining legislative authority in the area of national defense “is one of those refinements which owe their origin to a zeal for liberty more ardent than enlightened.”

He explains that it would “endanger the public safety” if there were “impolitic restrictions on the legislative authority.”  He goes on to suggest that anarchy would result and the American people would not support such an anarchy.

Hamilton then turns his attention to the question of standing armies during peacetime.  Pointing to England, he explains how it had lived under the rule of monarchs who had almost unlimited power.  After the Revolution of 1688, the monarch’s power to raise armies was drastically reduced.

The only manner in which an army could exist in peacetime was with the consent of the Parliament.  As Hamilton argues, even in England where the desire for liberty during this time was great, the only restraint believed necessary was to prohibit the executive from having sole power to raise armies.

The British revolutionaries who fought for liberty knew that there was a need for troops in peacetime.  There always needed to be troops ready to meet any contingency that faced the nation.  By placing power with the legislature, this was the proper balance between liberty and public safety.

According to Anti-Federalists, in particular Brutus in his “Tenth Letter,” those opposed to standing armies in peacetime were concerned with executives gaining excessive power.  To support this argument, they used Rome and Britain as examples.

In Rome, writes Brutus, Julius Caesar changed “it [Rome] from a free republic…into that of the most absolute despotism.”  In Britain, the armies had been used by Oliver Cromwell to take away the people’s liberty.

Hamilton though counters these concerns by stressing the role of the legislature.  One key protection was the appropriations process.  The legislature must, every two years, vote on whether to allow a military force.  Their constituents could hold them accountable at the ballot box if their actions were inconsistent with their will.

Further, according to Hamilton, state legislatures would protect their citizens.  Hamilton saw a strong federalist system where states fought against the encroachments by the federal government.  States would not simply voice their concerns, but they would be the vehicles by which the citizens would be protected.

Since Hamilton’s time, a key component to the power of state legislatures has been lost. Until 1913, state legislatures had the power to elect Senators.  They were not elected like they are now by a direct vote of the people.  This was a major check that states possessed in preventing excessive national power.

However, under the current system, state governments are mere shadows of what Hamilton envisioned.  This does undercut his argument.  The federal government has become a behemoth with state governments beholden to it due to an over-reliance on federal funds.

Fortunately, the military has never posed a significant threat to domestic tranquility.  This can be attributed to numerous factors, including the legislative check on executive power that Hamilton articulates in Federalist No. 26.  Given our country’s past and current foreign threats, he appears to have been correct in espousing the need for a standing army in peacetime.

– Daren Bakst, J.D., LL.M., is Director of Legal and Regulatory Studies at the John Locke Foundation and Troy Kickler, Ph.D., is Director of the North Carolina History Project.

11 Responses to “June 2, 2010Federalist No. 26 – The Idea of Restraining the Legislative Authority in Regard to the Common Defense Considered, For the Independent Journal (Hamilton) – Guest Bloggers: Daren Bakst, J.D., LL.M., Director of Legal and Regulatory Studies at the John Locke Foundation and Troy Kickler, Ph.D., Director of the North Carolina History Project”

  1. Jace Broadman says:

    So much of what’s in our Constitution is a result of the experiences that our founders had had before — things that worked and things that didn’t. This practical approach to setting up rules makes a big difference. Something as straightforward as the legislature’s role in defense was improved by the trial and error of the founders. I guess this makes me wonder why so many rules and proposed laws today seem to defy this tradition. Cap and Tax and the health care takeover come to mind. Have these worked anywhere before? Why must we be the experimenters?

  2. Susan Craig says:

    I’ve always felt that reform and power are pendulums which never stops at the bottom of the swing in perfect balance. The first, as an example, unions vs. owners, in the late 19th century owners were developing fiefdoms within their spheres so to empower the labor force unions were developed. In government it is liberty vs. order. What is counter intuitive is that reasonable boundaries are necessary to fulfill the promise of the Declaration of Independence for Life, Liberty and the Pursuit of Happiness. Rules like Fences make good neighbors.

  3. Jimmy Green says:

    As with our constitution the legislature does indeed have the power to provide for the national defense in Section 1 article 8 of the constitution. I’m not certain how the Federal Government got around the issue of “no appropriation of money to that use shall be for a longer term than two years.”
    The concern is in today’s world the executive branch is more inclined to initiate war regardless of the congress. I think WWII was the last time the legislature actually declared war as constitutionally required. Today the military is essentially at the Presidents disposal to be sent wherever, whenever. Does this imply the executive branch not the legislative is actually in charge of providing for the common defense? It seems a power vacuum has played out between the two branches and the Congress has surrendered its authorizations for war. This should be troubling to everyone. Besides this issue I do agree that in theory the legislative branch should have what ever power is needed to provide for the common defense. Although I’m not certain how to determine what size of a standing army we truly need.

    As Professor Kickler and Bakst pointed out “The federal government has become a behemoth with state governments beholden to it due to an over-reliance on federal funds”.
    This can be seen quite acutely in what former President Eisenhower termed the military industrial complex.
    Today’s attempts to kill most any major weapons system take a Herculean effort. Not because every weapons system is needed or wanted but simply because the cancellation of said system will involve the loss of thousand of jobs across many states. The congressman of those states will fight tooth and nail to maintain those jobs. And the defense contractors are clever enough to spread the development across as many states as necessary to ensure its survival. Sadly even weapon systems the pentagon does not want are built because the congressman is unwilling to allow the jobs to be lost. This is a detriment to the military and taxpayers.

    The mention of Rome via the Anti Federalist papers is amusing in that it’s hard to see that occurring to our republic currently. However as with Rome the executive power increased until Caesar took control as virtual dictator effectively ending any remnants of a republic. Today as I mentioned a power vacuum has been occurring in which the executive branch is wielding more power simply by taking it from the legislative branch.. This jeopardizes the check and balances needed to maintain a healthy republic especially in times of war. Although I don’t think were close to crossing a Rubicon in America I definitely have my concerns about the average citizens role as seemingly something less then “We the people” .

  4. Jimmy Green says:

    Sorry meant to say Article 1 section 8

  5. Dale Morfey says:

    Congress essentially delegated to the President, via the War Powers Act, the ability to respond to an act of war quickly (which the President already had under the Constitution) and to become involved in military actions that constitute acts of war.

    Congress has tried to delegate away one of their most important functions and We The People have allowed them to do so – to our shame.

    Remember the old saying “An ounce of prevention, is worth a pound of cure.”…? There being a time for everything… now is the time for the pound.

  6. James Roman says:

    James Madison Federalist papers
    Military: country capable of supporting without breaking the bank.
    Population 300 million

    Army 1/100 population= 3 million
    organized Militia 25 * Army= 75 million

    Militia@Large rest of population capable of bearing arms

  7. Barb Zakszewski says:

    Basically, every “war” since the Korean “War”, that the United States has fought in, has been Unconstitutional, in a strict sense. The President can go before Congress as FDR did in WWII, and ask for a declaration of War. But not even the Gulf wars and the current conflicts in the middle East are constitutionally declared wars, because the President has not done his Constitutional duty properly and Congress certainly has not either. No doubt, Congress has abdicated its role, in favor of politics and winning elections. Several of the wars including Korea and Vietnam have been police actions that the spineless United Nations have gotten us involved in. I would love to have seen GW Bush go before Congress after 9/11 and request a declaration of war, but against whom? The Taliban, Al-queda. Terrorists are much more elusive and undefined than a Nazi Germany or an imperalist Japan. So instead, we fought against and continue to fight these elusive terrorists, without an actual declaration of war. I don’t know what the answer is here, the United States must defend itself, but to grant SOO much power to one individual certainly cannot be what the Founders intended. We must go back to the Constitution and to the arguments made in the Federalist and see what those intentions were and try to find the answers that are already there.

  8. Thanks to everyone who joined our discussion today, and to our Guest Constitutional Scholar Bloggers, Daren Bakst and Troy Kickler!

    I asked you all last night to help us recruit kids to enter the We The People 9.17 Contest, Entries due July 4! Thank you!! We have had several new online signups today at https://constitutingamerica.org/contestsignup.php Please keep spreading the word!!

    Here is one additional request – as you recruit young people to the contest, please ask their parents, and the older kids, to join us on this blog! We learn so much from each other. The more people we have participating, the more we learn!!

    Tonight, the first paragraph of Federalist #26 grabbed my attention. I even printed it off and carried it down the hall to show my husband who was trying to watch TV in peace! But as he read the sentences below, he agreed – these words ARE relevant today:

    IT WAS a thing hardly to be expected that in a popular revolution the minds of men should stop at that happy mean which marks the salutary boundary between POWER and PRIVILEGE, and combines the energy of government with the security of private rights. A failure in this delicate and important point is the great source of the inconveniences we experience, and if we are not cautious to avoid a repetition of the error, in our future attempts to rectify and ameliorate our system, we may travel from one chimerical project to another; we may try change after change; but we shall never be likely to make any material change for the better.

    I admit I had to look up a few words. I had a vague understanding of their meanings, but reading the definitions added to the richness of Hamilton’s message.

    ameliorate – to make or become better, more bearable, or more satisfactory; improve; meliorate.

    chimerical – 1 : existing only as the product of unchecked imagination : fantastically visionary or improbable
    2 : given to fantastic schemes

    Even though Publius uses this first paragraph to make his case for the legislature to have the power to provide for national defense, these words reverberate with meaning, as I think of the numerous ways the balance between “legislative power and liberty” (thank you Mr. Bakst & Kickler for that phrase) has been disrupted.

    Our founders created a system of checks and balances, and nothing less than our freedom is dependent upon its equilibrium. Whether we tip too far towards anarchy, as Hamilton feared if the legislature wasn’t granted the power to provide for the national defense, or too far towards government control in our lives, the result is a deviation from the system of government our founding fathers so carefully designed. When “We the people” allow the government to get out of balance, we allow our liberty to fade, creating those “inconveniences,” Hamilton references, and we fail to make “any material change for the better.”

    Good night and God Bless!

    Cathy Gillespie

  9. “…the state legislatures, who will always be not only vigilant, but suspicious and jealous guardians of the rights of the citizens, against encroachments from the federal government, will constantly have their attention awake to the conduct of the national rulers, and will be ready enough, if anything improper appears, to sound the alarm to the people, and not only to be the VOICE, but if necessary, the ARM of their discontent.”

    When I read these words of Alexander Hamilton, I think to myself, “ WHAT HAPPENED?” This is one of the absolute best paragraphs in the Federalist Papers! When one wants to know what’s the big deal about the Federalist Papers, when someone wants to know why the United States Constitution important, when someone says, “We haven’t strayed that much from the Constitution,” I would direct them to this paragraph in Federalist Paper No. 26.

    These are the words that define the vision of our founding fathers, and the structure of the United States Constitution, in regard to restraining the federal government.

    “the state legislatures, who will always be not only vigilant, but suspicious and jealous guardians of the rights of the citizens”

    “against encroachments from the federal government, will constantly have their attention awake to the conduct of the national rulers”

    “and will be ready enough, if anything improper appears, to sound the alarm to the people, and not only to be the VOICE, but if necessary, the ARM of their discontent.”

    What are our state legislatures doing? They are not representing us in the U.S. Congress anymore and the federal government has tied their hands.
    The tenth amendment needs to be revisited and rekindled.

    Have we proceeded too far to save America? Will we ever get back to the true intention of our Constitutional government? Will American’s ever cut the umbilical cord?
    Are we to watch our flag burning in the street as citizens insist that the government owes them benefits? Will the age of entitlement ever be replaced by the original age of entrepreneurial vigor? Are we to sink on the same ship as Greece? Our GNP is projected to meet Greece’s GNP by 2020.

    How will America survive?

    If American’s do not know what they have they will not know when it is slowly being taken away from them.

    As Alexander Hamilton states,“Schemes to subvert the liberties of a great community, require time to mature them to execution.”

    The time has come and the alarm must sound before it is too late. What are our state legislatures doing? They are not representing us in the U.S. Congress anymore and the federal government has tied their hands.

    The tenth amendment needs to be revisited and rekindled.

    We must act now before America’s great liberties are swallowed into the great abyss of socialism and democracy fails – but this will happen only if we let it. We must be the VOICE and the ARM of discontent. The best way to do this is by education. We must educate our friends, our family, our neighbors, our CHILDREN about the United States Constitution, the Federalist Papers and our country’s founding principles.
    We must be vigilant!

    It begins with YOU. Spread the word about our website and “90 in 90,” and our contest for kids!

    God bless you!!
    God bless America.

    Janine Turner
    June 2, 2010

  10. “…the state legislatures, who will always be not only vigilant, but suspicious and jealous guardians of the rights of the citizens, against encroachments from the federal government, will constantly have their attention awake to the conduct of the national rulers, and will be ready enough, if anything improper appears, to sound the alarm to the people, and not only to be the VOICE, but if necessary, the ARM of their discontent.”

    When I read these words of Alexander Hamilton, I think to myself, “ WHAT HAPPENED?” This is one of the absolute best paragraphs in the Federalist Papers! When one wants to know what’s the big deal about the Federalist Papers, when someone wants to know why the United States Constitution important, when someone says, “We haven’t strayed that much from the Constitution,” I would direct them to this paragraph in Federalist Paper No. 26.

    These are the words that define the vision of our founding fathers, and the structure of the United States Constitution, in regard to restraining the federal government.

    “the state legislatures, who will always be not only vigilant, but suspicious and jealous guardians of the rights of the citizens”

    “against encroachments from the federal government, will constantly have their attention awake to the conduct of the national rulers”

    “and will be ready enough, if anything improper appears, to sound the alarm to the people, and not only to be the VOICE, but if necessary, the ARM of their discontent.”

    Have we proceeded too far to save America? Will we ever get back to the true intention of our Constitutional government? Will American’s ever cut the umbilical cord?
    Are we to watch our flag burning in the street as citizens insist that the government owes them benefits? Will the age of entitlement ever be replaced by the original age of entrepreneurial vigor? Are we to sink on the same ship as Greece? Our GNP is projected to meet Greece’s GNP by 2020.

    How will America survive?

    If American’s do not know what they have they will not know when it is slowly being taken away from them.

    As Alexander Hamilton states,“Schemes to subvert the liberties of a great community, require time to mature them to execution.”

    The time has come and the alarm must sound before it is too late. What are our state legislatures doing? They are not representing us in the U.S. Congress anymore and the federal government has tied their hands.

    The tenth amendment needs to be revisited and rekindled.

    We must act now before America’s great liberties are swallowed into the great abyss of socialism and democracy fails – but this will happen only if we let it. We must be the VOICE and the ARM of discontent. The best way to do this is by education. We must educate our friends, our family, our neighbors, our CHILDREN about the United States Constitution, the Federalist Papers and our country’s founding principles.
    We must be vigilant!

    It begins with YOU. Spread the word about our website and “90 in 90,” and our contest for kids!

    God bless you!!
    God bless America.

    Janine Turner
    June 2, 2010

  11. Neil Simpson says:

    It helps me a great deal when I see the explanation. It seems unusual that there was such a controversy over the control of the military. But that does seem to show that our founders had a lot of foresight in that they anticipated problems and then resolved them. I guess what I don’t understand is how we’ve gotten so far away from that ability. Are modern Americans less bright or is the divine no longer influencing our nation’s path?

Guest Blogger: Julia Shaw, research associate and program manager at the Heritage Foundation’s B. Kenneth Simon Center for American Studies

Thursday, June 3rd, 2010

We are all familiar with the recent skepticism about government’s performance. Ever since Rick Santelli’s rant on the floor of the Chicago Board of Trade, Americans across the country have gathered in tea parties to discuss and protest the plethora of bad policies pouring forth from Washington. Frustration with government, though, is not limited to tea party participants. The recent oil spill in the Gulf Coast has renewed discussions on the left and the right about what the federal government can and should do in such emergencies.

How should we understand the recent frustration with government and skepticism about its role? Writing as Publius in Federalist27, Alexander Hamilton explains the cause of such dissatisfaction and the suggests a remedy to restore the people’s confidence in and affection for government.

In Federalist27, Publius addresses the charge that the new government “cannot operate without the aid of a military force to execute its laws,” ultimately because “people will be disinclined to the exercise of federal authority in any matter of an internal nature.” Publius counters the presumption that people will be disfavor this new government, arguing that  “I believe it may be laid down as a general rule that their confidence in and obedience to a government will commonly be proportioned to the goodness or badness of its administration.”

Publius rejects the notion that people arbitrarily despise their government. Instead, he argues that there is a relationship between effective administration of government and public affection for government. People have confidence in and affection for a well-administered government. Conversely, people distrust and become frustrated with a poorly administered government.

This is not an unfamiliar argument. President Obama acknowledged that Americans were desperate for a well-administered government. But when Obama proclaimed in his inaugural address, “the question we ask today is not whether our government is too big or too small, but whether it works,” he suggested that effective government is unrelated to the size and scope of government. Good administration is necessary for good government. But this does not mean that good administration is unrelated to the size of government.

But Federalist27 anticipates Obama’s argument.  Good administration is inseparable from limited government. Publius explains, in Federalist27 and throughout the entire Federalist, that the constitutional design of the government lends itself to gaining the affection of the people. In Federalist27, Publius highlights the expanded choice in election, the selection of the senate, and the reduction of factions as examples of the changes that will engender good will toward the new government. The rest of the Federalist discusses in greater detail the powers and limits on the new government. And, it is this limited government of enumerated powers that “the citizens are accustomed to meet with it in the common occurrences of their political life, [and] the more it is familiarized to their sight and to their feelings, the further it enters into those springs of the human heart, the greater will be the probability that it will conciliate the respect and attachment of the community.”

Considering that people have affection for good administration, and that good administration is inseparable from a limited government, it follows that people’s current dissatisfaction with government is ultimately rooted in the government’s abandonment of constitutional limitations. Every day, entitlement programs grow, government spending increases, and Washington bureaucrats issue new regulations to control our lives. It may be a difficult task to return to limited constitutional government, but, as Publius reminds us in Federalist27, the affection of the people and the long-term health of the country depend upon the such a return.

Julia Shaw is a research associate and program manager at the Heritage Foundation’s B. Kenneth Simon Center for American Studies.

16 Responses to “June 3, 2010Federalist No. 27 – The Same Subject Continued: The Idea of Restraining the Legislative Authority in Regard to the Common Defense Considered, from the New York Packet (Hamilton) – Guest Blogger: Julia Shaw, research associate and program manager at the Heritage Foundation’s B. Kenneth Simon Center for American Studies”

  1. Susan Craig says:

    Oops! “the more the operations of the national authority are intermingled in the ordinary exercise of government, the more the citizens are accustomed to meet with it in the common occurrences of their political life, the more it is familiarized to their sight and to their feelings, the further it enters into those objects which touch the most sensible chords and put in motion the most active springs of the human heart, the greater will be the probability that it will conciliate the respect and attachment of the community. Man is very much a creature of habit.” I fear that in arguing for the increased power of the central government also put his finger on the problem we face today. Via gradualism and how can you argue against the good of these mandates the creatures of habit have grown used to the meddling of the nanny state.

  2. Ron Meier says:

    In the town hall of Siena, Italy, is a very large classic fresco painting of the Effects of Good Government and the Effects of Bad Government, painted in the 14th Century. Now, I wish I had spent more time looking at it than I did. You can google that to find various descriptions. As I understand, Siena, at that time, was a republic. We might all benefit by spending some time examining the painting and its various meanings to better understand where we are today and what we have to do to get back to where we started. It would be good to have a reproduction of that painting in the Congressional Rotunda.

  3. Maggie says:

    This leapt off the page at me….”A government continually at a distance and out of sight can hardly be expected to interest the sensations of the people.” I do not think of this as “distance” in a literal sense, but rather “distance” in their understanding of the every day man. Our politicians have made careers out of being set apart rather than being one of us and governing as one of us.

  4. Jimmy Green says:

    Military force is not needed but honestly lets agree that many taxes and fees that are charged to us often unfairly would never be paid if their was no implicit threat of fines, incarceration ,loss of property, violence of some type by the federal or local government if you do not obey them. Sadly this coercion is being forced on us to accept unjust or unconstitutional laws.
    The administrative efficiencies of the government good or bad would have little bearing on us in a constitutionally run government. The issue as mentioned is the relative size and intrusive nature of it into our personal lives.
    No doubt the Federal Government was corrupt a hundred or more years ago but that corruption did not affect us much. The constitution was still in effect and the wall preventing the Federal Government from meddling in our private life was limited

    Most every serious problem in America today can easily be traced back to unconstitutional decisions the Federal Government made and the judicial system approved. Is there any limit to the government’s intrusion into our private life?
    Are we becoming wards of the government?. Each one of us should be furious about this. Unless you wish for a cradle to grave welfare state or maybe entered the country illegally then the Federal Government is the nightmare on Elm Street. Or from another great show “We are the Federal Government….Resistance is futile…..You will be assimilated
    You life as it has been is over. From this time forward you will service us” or something cool but scary like that.

    I believe our guest blogger Julia Shaw hits the nail on the head when she states “it follows that people’s current dissatisfaction with government is ultimately rooted in the government’s abandonment of constitutional limitations”. I believe this is primarily what we all tend to think and the comments I have read from you all tend to support that idea.

    Maggie says: “Our politicians have made careers out of being set apart rather than being one of us and governing as one of us.”
    Absolutely true, the only question of importance now is what are we willing to do to change this. What efforts or discomforts are we willing to accept for a restoration of the government and the constitution of the people.

  5. Susan Craig says:

    Jimmy, let me pose the question to you this way. Consider you and your neighbors homes to be a microcosm picture of two countries. Let us say that is common knowledge that both of you have on your properties something of great value. You are not armed, while your neighbor is known to have at least one gun. I consider this the individual equivalent of a national standing army. Which house is more vulnerable to thieves?

  6. Jimmy Green says:

    Okay Susan I give. Please explain your point and the relevence to essay 27.
    Thanks
    Jimmy

  7. “Man is a creature of habit. A thing that rarely strikes his senses, will have but a transient influence upon his mind.” Alexander Hamilton, Federalist Paper No. 27.

    Bingo. Once again, from the minds of Publius rings relevancy today. The United States Constitution is a thing that rarely strikes the senses because it is so infrequently discussed or taught. Consequently, it has but a transient influence upon American’s minds and passions. The mainstream American culture is basically void of any mention or remembrance of the United States Constitution. Hence, our calling, as concerned American’s who value our Constitutional Republic, is to rally our Republic and curb the tide of irreverence that is engulfing the United States Constitution.

    We must make it prevalent and relevant to the senses of our citizens. Knowledge is power. Culture is contagious. The United States Constitution is critical. Actually, it is in critical condition and its survival is the antigen to the disease of socialism. It embodies the vaccine that needs to be boosted in American society.

    Man is a creature of habit and without the awareness of the basic structure, the true intent and the proper application of the principles of our United States Constitution then our Republic will be but a fleeting memory.

    It is projected that by 2020 our economy will match the failing economy of Greece and democracy as we know it, America as we know it, will meet its demise. The spending must cease and the only way to accomplish this is to reinvigorate the can do spirit that built America. As John F Kennedy said, “My fellow Americans, ask not what your country can do for you; ask what you can do for your country.”

    We must counter the culture. One way to do this is to have parties in your home to study the Constitution and encourage people to join our “90 in 90” or refer people to the essays that are in our “90 in 90” archives. Cathy and I want to build a library that will provide a richness of resources to be utilized at any time.

    Another way to counter the culture is with our children, the youth of our country. The culture is sending them the wrong message and the awareness of the Constitution is either vague, repugnant or nil. I thank you for getting your child, or a child you know, to join our contest. Taking the time out of “summer time slumber” or “summer time frenzy” is the first step to requisite better habits.

    Our sense of pride in our country needs to be rekindled, and the paramount awareness of our rights and our basic foundation needs to be reaffirmed, by infusing the culture the American grassroots way. If not by the culture or mainstream media, then by the sheer will of dedicated Americans, like you.

    God Bless,

    Janine Turner

  8. Susan Craig says:

    Jimmy, and I quote ‘Military force is not needed’ even if it is not used it has a function.

  9. Susan Craig says:

    In America under ‘posse comitatus’ the standing military is not permitted to act internal to the boundaries of the union. The only ‘military’ body that may be called to internal action are the individual state guard units and that only at the behest of that states governor. Under the Constitution the military is purely an extention of foreign policy whether it is declared war or the ‘big’ stick that others know we have and are not afraid to use when provoked.

  10. Jimmy Green says:

    Susan, yes thats correct if I understand you correctly were talking about coercion. My statement of “Sadly this coercion is being forced on us to accept unjust or unconstitutional laws.”
    The government always gets what it wants by the implied threat of force, rarely the actual use of it. Hopefully I understood you correctly but maybe not.
    Jimmy

  11. Richard says:

    “I hope we have once again reminded people that man is not free unless government is limited. There’s a clear cause and effect here that is as neat and predictable as a law of physics: as government expands, liberty contracts.” — Ronald Reagan

  12. Susan Craig says:

    Okay your point was [if I understand you right] is that for government coercion to occur our government has found a way to do it without military involvement? Okay there we can agree. One of our founding fathers said [and I probably paraphrase] ‘Where government fears the people you have liberty, where the people fear the government you have tyranny!”

  13. Peter says:

    This observation “Publius rejects the notion that people arbitrarily despise their government. Instead, he argues that there is a relationship between effective administration of government and public affection for government. People have confidence in and affection for a well-administered government. Conversely, people distrust and become frustrated with a poorly administered government.” is the central point of Federalist 27, in my judgment, and of much of the debate in which we find ourselves today. Big government is hard to administer, is arbitrary and ineffective – which is part of the reason people feel the way they do about the IRS, the Post Office, the EPA and, at the local level, the DMV. This point is certainly worht thinking about in the contemporary context.

  14. Adam Estep says:

    Enslavement:

    Though it be by whip and chain or by excessive common laws and many taxes its name does not change!

  15. Jesse Stewart says:

    I know this posting is late, but I’ve been unable to participate for a few days. I too was struck with “I believe . . . general rule that their [the people] confidence in and obedience to a government will commonly be proportioned to the goodness or badness of its administration.”

    The “badness” of our government over a long period of time has lead to the mistrust now felt by the people. I hope and pray that we will be able to reverse this trend, or we will be lost!

  16. Greetings from NYC. I am here, with Cathy and Juliette, and we are Constituting America. Be sure to tune in tomorrow to Fox News midday as I am going to be a guest on Megyn Kelly’s show. I will, also, be on Glenn Beck’s Show, the Founding Father’s Friday, on Friday! Yea! Great exposure for Constituting America and our “90 in 90” and our We the People 9.17 Contest for kids. Deadline for our contest entries is July 4th – so please continue to spread the word!

    I am glad to have Marc S. Lampkin back with us today, thanks Mr. Lamkin for your wonderful insights and I was also really happy to see some of our regular bloggers back today, such as Maggie and Carolyn, as well as some new bloggers…welcome!

    I find that I agree with Carolyn Attaway’s blog entry today. My favorite quote from today’s reading was the following:

    “Where in the name of common-sense, are our fears to end if we may not trust our sons, our brothers, our neighbors, our fellow-citizens? What shadow of danger can there be from men who are daily mingling with the rest of their countrymen and who participate with them in the same feelings, sentiments, habits and interests?”

    As Carolyn said, our military fights for our love of country not for the love of a leader. Our military also fights for a love of his countrymen. We are brothers and sisters, neighbors and fellow citizens. Our unity through diversity is what makes us unique. Our Constitutional forefathers gave us a brilliant structure, and roadmap, to keep us that way, to keep us unencumbered by the weight of heavy-handed government. Our freedoms have given us our opportunities and identity and breathed life into our bond as a brethren working together. Our limited government has given us the ability to dream. Our sense of adventure has flourished and made America great because Americans have not been censored. Rooted in this spirit is a moral compass that has guided our way. If we loose this, we loose everything.

    Alexis de Tocqueville summed it up best:

    “I sought for the greatness and genius of America in her commodious harbors and her ample rivers, and it was not there; in her fertile fields and boundless prairies; and it was not there; in her rich mines and her vast commerce, and it was not there. Not until I visited the churches of America and heard her pulpits aflame with righteousness did I understand the secret of her genius and power. America is great because she is good, and if America ever ceases to be good, America will cease to be great.”

    God Bless,

    Janine Turner
    June 7, 2010

Sunday, June 6th, 2010

Thank you to Dr. Morrisey for your insight into Federalist No. 28, and for checking back in with us over the weekend!  You are a wonderful resource to our “90 in 90” Participants!

It is interesting to me that Hamilton seems to be calling for the federal government to use the military to enforce domestic law in some circumstances.  He mentions specifically “seditions and insurrections.”

However, the American people have a strong history of opposing military enforcement of domestic law, unless requested by the state.  Our forefathers rightly feared a standing army, due to abuses and usurpations of power the British Army had imposed on them.

After the Civil War, during Reconstruction, U.S. soliders were utilized to enforce law in the South. The issue came to a head during the election of 1876.  Democrats dropped their challenge of this very close election (Rutherford Hayes won by one electoral college vote, but Samuel Tilden won the popular vote), when a compromise was reached to pass the Posse Comitatus Act of 1878:

Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.

Federalist No. 28, and the subsequent Posse Comitatus Act are both very relevant today, because in 2006, President Bush could not send federal troops in to Louisiana to assist in the aftermath of Hurricane Katrina, until he was specifically requested to do so by Governor Blanco.  As a result, the federal government was not able to respond as quickly as many would have liked.

Later that year, an attempt was made in the 2006 Defense Authorization Act to revise the Posse Comitatus Act, to enable the President to respond more quickly in these types of emergencies.  While the measure passed in 2006, it was repealed in 2008.   As United States Citizens, it is “in our genes,” to be wary of standing armies, and certainly military enforcement of domestic law.

As I read Federalist 28, the below quote reminded me of why it is so important we all continue our effort to educate our youth and citizens about the U.S. Constitution and the and the foundation it sets forth regarding our freedoms and rights.

“The obstacles to usurpation and the facilities of resistance increase with the increased extent of the state, provided the citizens understand their rights and are disposed to defend them.”

Thank you to all of you who are joining us in our mission, speading the word and taking the time to blog with us!

Have a Blessed Sunday, and we look forward to blogging on Federalist 29 tomorrow!

Cathy Gillespie

 

Guest Blogger: Professor Will Morrisey, William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College

Friday, June 4th, 2010

The Federalist #28: Federalism and Rebellion

Publius has turned to the justification of “energy” or power in the federal government—in particular, the power of military self-defense.  In #27 he began consideration of perhaps the most sensitive topic in any federal system, namely, military defense against internal rebellions.  He argued that union finds its primary bulwark in peaceful habits of cooperation.  Frequent appeals to armed enforcement of the union will only weaken the union–either by fostering resentments piqued by fresh injuries or by transforming that union into a tyranny that rules by nothing more than force.  The careful limitation of federal powers—“the enumerated and legitimate objects of [the government’s] jurisdiction”—coupled with the structural device of divided and separated powers within the federal government itself, should work to strengthen the Union over time.

Nonetheless, times will come when only force can preserve the Union.  Publius addresses this likelihood in Federalist #28, making this paper one of his most candid and tough-minded performances.

Recall the fundamental law of contract enunciated in #22: no party to a contract may unilaterally and legally violate the contract.  This maxim of course provided the crux of the Founders’ argument in the Declaration of Independence; King and Parliament had violated the unalienable rights of the colonists by unilaterally altering the terms of their governing charters, leading ultimately to acts of war against the colonists by the King, funded by the Parliament.  The revolution occurred not because the colonists rebelled but because the British government had.

At least as often, some part of the people will rebel.  Indispensable to good government, rule by law will not always suffice.  Rebellion causes an immediate emergency but, more importantly, it “eventually endangers all government”; rebellion in one place can spread to others, plague-like.  Publius remarks that this will hold regardless of whether the country remains united, inasmuch as an America divided into one, a few, or many sovereignties will still suffer the occasional insurrection.

As a revolutionary warrior, Publius maintains the right to revolution against tyranny.  The “original right of self-defense,” part of our natural right to life, always remains “paramount” to “all positive forms”—i. e., all conventional, man-made forms—“of government.”  The human institution of government rightly serves God’s `institution’ of human nature, and when the human contradicts the divine, the divine rightly asserts priority.  This much we know from the Declaration of Independence: In some circumstances the rule of law rightly gives way to illegal but just force.

Publius then advances a much more surprising argument, one based on prudential reasoning not logical deduction from first principles.  Usurpation of citizens’ rights by “the national rulers” will find stiffer resistance than usurpation by the rulers of the member states.  The lesser governments within the states—townships, counties—have relatively weak governments and so would likely lose any contest of arms to a state-capital cabal, especially if the state government controlled the militia.  A usurpatory federal government, however, would face opposition by the states—by experienced public officials with every motive to remain alert to encroachments on their constitutional rights.  The federal government under the new Constitution will check usurpatory moves by the states; the states will retain the power to check federal usurpation.  “The people, by throwing themselves into either scale, will infallibly make it preponderate.”  By ratifying this Constitution the people will do just that, peacefully, but they could also do so in war, if they judge it necessary—as they had, in 1776.

Here the argument of Federalist #10 for the value of an extensive republic reappears.  There, extensiveness of territory diluted factions: groups of citizens acting some way “adverse to the rights of other citizens”—individuals—or to the “permanent and aggregate rights of the community”—the society as a whole.  Here we see the reverse situation; a group of citizens acting in defense of their rights, in accordance with the permanent and aggregate rights of the community, will find refuge in the size of America.  States distant from the usurpers who’ve seized the capital city would have time and space in which to organize themselves military and fight back.

This raises an obvious question: What if an unjust group or faction controlled distant states?  Could the federal government suppress the rebellion?  Publius cannot predict the outcome of such a struggle.  If asked, he could only say that under the weak government of the Articles, no such just suppression could occur at all.

Professor Will Morrisey is the William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College

13 Responses to “June 4th, 2010Federalist No. 28 – The Idea of Restraining the Legislative Authority in Regard to the Common Defense Considered, for the Independent Journal (Hamilton) – Guest Blogger: Professor Will Morrisey, William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College

  1. Susan Craig says:

    This paper seems by implication to say that the 2nd amendment was an understood given if not a directly stated right of the people. I wonder why in this contract in its unamended form only specified the obligations and duties of one side but only implied those of the other side?

  2. Will Morrisey says:

    Susan, if I understand your question correctly, I think that the Founders agreed that the right to self-defense was a natural right, thus `given’ by God. One of the early commentators on the U. S. Constitution, St. George Tucker, writes, “The right of self defence is the first law of nature: in most governments it has been the study of rulers to confine this right within the narrowest limits possible.” Under the Articles, this right simply could not be infringed by the national government. The Framers of the new Constitution were trying to strengthen that government, so they emphasized the need for a government capable of defending itself against rebellion. By 1789, when Congress debated the Second Amendment, the opposite worry prevailed. Worried about the prospect of a standing army, the Congress thought that militias regulated by the civil governments of each state would obviate the need for such a force. They hoped that militias would suffice to repel any invasion. We see this as late as 1829 in William Rawle’s book, “A View of the Constitution of the United States.” He argues, “Although in actual war, the services of regular troops are confessedly more valuable; yet, while peace prevails, and in the commencement of a war before a regular force can raised, the militia form the palladium of the country. They are ready to repel invasion, to suppress insurrection, and preserve the good order and peace of government.” A few years later, Joseph Story adds, to these points the need of the citizens to defend themselves against “domestic usurpations by rulers.” Notice that these commentators expect that any “regular” army would need to be “raised”; there would be no regular standing army.

    Or am I missing the point of your question?

  3. Billie says:

    This explains a lot. I sometimes have wondered about the rationale about the dispute over the standing military force. On the one hand, I believe in a strong national defense. But I’ve thought about the fact that the same force could ultimately be turned against the nation. I don’t really fear it per se, but it is sort of a quandary as to what to do about it. But Professor Morrisey explains it quite well.

  4. Jimmy Green says:

    Hamilton’s understanding of times when the national government will use force to quell insurrections or other internal calamities is understandable given the times he lived in. I think the last time federal force was used was the war between the states from 1861-1865. Not sure if that’s a civil war or the south loosing their own revolutionary war.
    The civil rights movements of the 1960’s used federal troops in Little Rock I think, but that was not out of sedition or succession concerns.

    Hamilton’s views on the necessity of force to preserve the union seems common sense. It’s the couple of centuries of hindsight we have that keeps getting in the way.
    His view of stopping an usurpation in a state as harder then a federal usurpation because of limited territory or geographical areas seems secondary to the usurpers partial or complete control of the militias and belief of the citizens in the usurpers. You know the old “divide and conquer” routine. An usurpation of power by the Federal government likewise seems to be more based on convincing the people that no real usurpation has taken place and then placating them with cheap beer and all the gladiatorial games in the form of ESPN you can watch. At least for the men. Otherwisw entitlements and free medical care for all.

    It think he believes that if the states invade our rights through an usurpation of power then the strength of the Federal Government will set things right and of course the States will set the Federal Government proper if their invading our rights. We decide which one is right or wrong. You have to love how this works in theory.
    The last paragraph mentions peoples apprehension of a strong standing federal army as suffering from a cureless disease. Nice to know political humor transcends the ages.

    You have to appreciate the fine line Hamilton is walking to find the correct balance between having the proper sized standing national army to safeguard the Union and the people of any rogue despotic state. Yet weak enough such that the states and people can throw off the tyranny of that army under a despotic federal government. In actuality we have had no real fear from our standing army and I think Hamilton was right, at least for now. However as people loose confidence in the government things may start to change.

  5. Susan Craig says:

    Partially professor, in most contracts, and I consider the Constitution a contract between government and the people, the rights, privileges and duties of both parties are spelled out up front in the body of the contract. In the Constitution what is expected and permitted on Governments part is very narrowly proscribed but it wasn’t until the first 10 amendments that the other side of this contract was address with any specificity.

  6. Howdy from Texas! I want to thank Mr. Will Morrisey for joining us today and for his wonderful interpretation of Federalist Paper No. 28. I underscored Alexander Hamilton’s quote, “If the representatives of the people betray their constituents, there is then no resource left but in the exertion of that original right of self-defense, which is paramount to all positive forms of government; and which, against the usurpation of the national rulers, may be exerted with an infinitely better prospect of success, than against those of the rulers of an individual state.”

    I find this to be relevant to today in the respect that so many representatives in our United States Congress are betraying their constituents and they are doing so with arrogance, and a condescension, that is disturbing. I refer once again to the often-repeated phrase of Publius, “the genius of the people.” Our current Congress is paying little heed to this phrase and their underestimation of the patriots of America, and that Americans rule through her elected officials, is an action that, I believe will hinder and surprise many currently elected officials in November.

    Publius is reaffirming the collective strength of the people and their right to take action. This is a comforting reinforcement for the passions of the many Americans who are now finding their voice and utilizing it. As predicted by Alexander Hamilton, the unity of the states, the brothers and sisters of America, as opposed to individual states, are reaping resounding results.

    “The usurpers, clothed with the forms of legal authority, can too often crush the opposition in embryo,” is another source of wisdom from Alexander Hamilton. Relevant to today too often lawyers seem to be “usurping” our democratic process and the United States Constitution. Teams of lawyers are constantly poised and ready to redefine the process of protest by squelching it before it has begun with intimidation and coercive measures. Double speak and mind games prevail.
    Americans are tiring of this game and the continual twisting of the true intentions of our Constitution and our rights.

    However, in order to be a true guardian of the gate, we must carry forth our journey to be a people who protest with a basis of formidable knowledge in our principles. Knowledge is power.

    Alexander Hamilton states in this paper, “The obstacles to usurpation, and the facilities of resistance, increase with the increased extent of the state: provided the citizens understand their rights and are disposed to defend them.”

    “Understand their rights and are disposed to defend them.” Hence, if Americans do not know their rights then they will not know when they are being taken away.
    The counter measures of our current culture are imperative. The Constitution needs to be the theme that is prevalent and prevails, as does the readiness and willingness of Americans to stand up, take a stance and go the extra mile. When we are too tired, or too busy, or too distracted by the mundane, this is when it is of the most importance to rally our wills and wits to carry on and carry forth the torch of our forefathers and foremothers who sacrificed so much and stopped at nothing to underscore and manifest what was right, what was worthy and what was the true intent of our God.

    God Bless you for your willingness and courage,

    Janine Turner
    June 4, 2010

  7. yguy says:

    “in most contracts, and I consider the Constitution a contract between government and the people, the rights, privileges and duties of both parties are spelled out up front in the body of the contract. In the Constitution what is expected and permitted on Governments part is very narrowly proscribed but it wasn’t until the first 10 amendments that the other side of this contract was address with any specificity.”

    I don’t think this is the right way to look at the BoR, the preamble to which describes it as a collection of “further declaratory and restrictive clauses”; and certainly any obligations conferred by those amendments fall entirely on government entities. The contractual obligations of the people WRT the government are fulfilled in their entirety when We the People provide the government with the wherewithal to carry out our orders.

  8. Will Morrisey says:

    Susan and yguy raise an interesting question regarding modern `social contract’ theory. Prior to any contract between the people and the government must be a contract among the people themselves. This idea may be seen in the Preamble: “We the People of the United States… do ordain and establish this Constitution….” A given population in effect contracts with itself–individuals and families contract with one another–to establish the several levels of legal institutions by which they govern themselves. In so doing, they empower and limit these various governments, in each case (to quote another document familiar to all of us here) “laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.” If we think of the question in this way, the amendments amount to refinements of–and later on, perhaps, near-contradictions of–the original contract. The difference in emphasis that Susan points to in the first ten amendments strikes me as part of an attrempt by the Jeffersonians (many of them former anti-federalists) to ensure that certain natural rights (freedom of religion and of speech, self-defense, etc.) were given the formal or “positive” status of civil rights.

  9. Susan Craig says:

    Thank you Professor Morrisey, you have given me food for thought.

  10. Greg Zorbach says:

    Many contributors to this blog have marveled at the wisdom of Publius and the Founding Fathers in crafting and implementing our Constitution with all of its carefully devised checks and balances and protections for our individual liberties. It has come up more than once (especially in Janine’s comments) about how amazing it is that so many of the arguments for limited government and those protections of our freedom make it seem as if Publius was looking well into the future to our troubled times.
    In these last few papers, Publius addressed the widespread fear of a standing army at the time of the formation of the Constitution. Hamilton argued that the states would be a effective counter to federal overreach in this and other areas of potential intrusion into our liberty. As Jimmy points out: “You have to love how this works in theory.” The argument has proved to be unnecessary on the issue of a standing army and sadly not true in most other areas of individual liberty. The states have failed miserably in that duty to counter the federal government’s relentless intrusions into individual freedom.
    As Cathy points out: “Our forefathers rightly feared a standing army, due to abuses and usurpations of power the British Army had imposed on them.” On the other hand, the standing army fears in America have been proven to be completely ungrounded.
    During each of my several visits to the Vietnam Memorial I became more and more convinced that the real long-term value of that ‘conflict’ was the validation of civilian control of the military and the irrationality of those ancient fears of a standing army (‘cureless disease’ indeed). In our country’s long history of military engagements I don’t believe that there has ever been a situation that came closer to justifying a military ‘coup’ or something similar. The disastrous meddling in military missions and even sorties by Johnson and McNamara was nothing short of treasonous by the metric of the number of lives needlessly lost, both among our personnel and the Vietnamese, not to mention the stain our country still carries of that defeat . The details are easy enough to verify. I don’t know for sure (I was just a junior Navy pilot) but I would bet the farm that among the more principled senior officers I got to know and admire in my subsequent career there were many who would lay awake at night agonizing over the tragic choices and the possibilities.
    It didn’t happen. Not even under those most trying of circumstances. There is nothing to fear from our standing army or armed services. Never has been.
    Several very good points have been made about historical uses of federal troops: Alabama and the Civil War. (I’m married to a southerner, so I know the ‘war of southern independence’ arguments.) However, the southern states did participate in the rebellion against England. And they did enter into a legal and binding contract of confederation and then did vote for ratification of the Constitution. I always felt that calling the Civil War the ‘war of southern independence’ was just a clever way of avoiding the real moral issue at stake.
    As for any theoretical rebellion, the problem arises of how do you define terms like tyranny and despotism? Maybe its like pornography: “I can’t define it, but I know it when I see it.” Many people seem to be seeing it these days.
    As to the states’ abdication of their role as protectors of its citizens from an overreaching federal government, we may be seeing a turnaround with this legal opposition to Obamacare. To date, more that 20 states’ Attorney Generals have joined in the lawsuit challenging its constitutionality. Several more states (whose constitutions require that such a challenge to federal law originate in the state legislature) have began the process to join in. Those numbers get pretty close to the 38 required to call for a constitutional convention.

  11. yguy says:

    ‘The difference in emphasis that Susan points to in the first ten amendments strikes me as part of an attrempt by the Jeffersonians (many of them former anti-federalists) to ensure that certain natural rights (freedom of religion and of speech, self-defense, etc.) were given the formal or “positive” status of civil rights.’

    I don’t think I could disagree more adamantly. WRT federal powers, 1A and 2A can reasonably be considered extensions of A1S9, which includes limitations on the federal legislative power under the necessary and proper clause. The preexisting rights are alluded to in those amendments to clarify the limits on government, not to place such rights on a par with “positive rights” like suffrage which require governmental validation.

    IOW, while the federal government is generally tasked with protecting the rights you mention, it is not under the color of 1A or 2A that this is accomplished, but by obedience to the Constitution in general in pursuance of the objectives stated in the Preamble.

  12. Susan Craig says:

    I have a tendency to wince when people talk of civil rights as opposed to ‘natural’ or God given rights. A Civil right is not immutable and can be changed at the pleasure of the governing power, whereas a ‘natural’ or God given right is and can not be rescinded or amended by a governing power.

  13. Roger Jett says:

    The following quotes come from a transcription of an old “Break Point” radio broadcast by Chuck Colson entitled “Rights Talk”:
    “Where once we had spoken of government aid programs, we began speaking of entitle-
    ment progams. Suddenly, it wasn’t just an act of compassion to help the poor, the sick, or the elderly. It was a right to which they were entitled. rights came to mean basisc needs, which in turn gave way to wishes” …”every right I claim imposes an obligation on someone else. If patients have a right to medical treatment, then doctors have an obligation to administer it. If criminals have a right to a lawyer, then the state has an obligation to supply one. If people have a right to financial security, then the government has an obligation to dole out welfare benefits. For each new right that is created, a whole network of laws and regulations is written to enforce the corresponding obligation” …”Notice the irony here. The old concept of rights was designed to limit state power- to define areas free from govern-
    ment interference. But the new concept of rights expands state power” …”A larger and larger portion of our lives is vulnerable to government control- exactly what the old kind of rights were designed to prevent”… ” What a sad irony: As Americans demand more and more rights, we enjoy fewer and fewer freedoms” … “The entitlement mentality is threatening the fundamental freedoms that were once the whole point of human rights”.
    We in America have become far too preoccupied with our “rights” and have lost sight of our responsibilities that preserve our “freedoms”

 

Guest Blogger: Marc S. Lampkin, partner at Quinn Gillespie and Associates LLC and graduate of Boston College Law School

Monday, June 7th, 2010

Federalist #29 written by Hamilton continues the focus on the subject of the militia and the standing army.  Hamilton is quite enthusiastic in embracing the needs for a common or national military force. He explains, “THE power of regulating the militia, and of commanding its services in times of insurrection and invasion are natural incidents to the duties of superintending the common defense, and of watching over the internal peace of the Confederacy.

In Hamilton’s view, the efficiencies of having one national force as opposed to 13 were significant enough even to overcome the fear that this national force might oppress the people.  Since domestic rebellions in a given state were of interest to the national government (as part of its responsibilities for national defense) as well as to the particular state where the rebellion occurred, it wouldn’t be necessary for a state to expend the resources necessary to handle such a capability and the national force would provide a sufficient capacity to handle such problems.

Arguably, Hamilton claims there could even be advantages that a national force might have over a state force in such a situation. He says, “uniformity in the organization and discipline of the militia would be attended with the most beneficial effects, whenever they were called into service for the public defense. It would enable them to discharge the duties of the camp and of the field with mutual intelligence and concert an advantage of peculiar moment in the operations of an army; and it would fit them much sooner to acquire the degree of proficiency in military functions which would be essential to their usefulness.

In Federalist #29, Hamilton wants to respond to those who say that the new Constitution would be far better if somehow the national defense power remained diffused between the several states.  Hamilton believes this would be in the long term destructive to the new American nation.  Moreover, remarkably he turns the argument on itself.  If a standing army is a threat to liberty he asks, why have thirteen standing threats?  Hamilton asserts, “If a well-regulated militia be the most natural defense of a free country, it ought certainly to be under the regulation and at the disposal of that body which is constituted the guardian of the national security. If standing armies are dangerous to liberty, an efficacious power over the militia, in the body to whose care the protection of the State is committed, ought, as far as possible, to take away the inducement and the pretext to such unfriendly institutions.

A second point that Hamilton makes is that sometimes the type of federal or national response needed may not include the need for lethal force.  Because the federal government might have various alternatives to pick from it may not see the need to respond first with a purely military show of force.  A federal government may have a variety of administrative forms that it can use to respond to a given situation, varieties that a state government might not have or if it does to have it across multiple states would be unnecessarily duplicative and therefore inefficient.

Next Hamilton directly addresses Posse Comitatus – also sometimes referred to as sheriff’s posse – originally part of the English common law it involves the authority of a law enforcement officer to obtain assistance from non law enforcement personnel to assist him in keeping the peace or to pursue and arrest a felon.  Hamilton insists that critics can’t have it both ways.  They cannot say that the federal Constitution should be opposed because it does not explicitly provide for this authority or be opposed because its power to engage in posse comitatus is unlimited.  Hamilton argues, It would be as absurd to doubt, that a right to pass all laws NECESSARY AND PROPER to execute its declared powers, would include that of requiring the assistance of the citizens to the officers who may be intrusted with the execution of those laws, as it would be to believe, that a right to enact laws necessary and proper for the imposition and collection of taxes would involve that of varying the rules of descent and of the alienation of landed property, or of abolishing the trial by jury in cases relating to it.”

Then Hamilton turns to the question of the threats associated with the national militia.  Repeating arguments he has made earlier, Hamilton expands upon the concept that not only would 13 armies be unnecessarily duplicative, but it also would be financially and personally burdensome on the people as the force necessary by the aggregation of the states armies across the several states would be greater than the total force used by the national level and even this wouldn’t succeed because the burden would ultimately be rejected by the people. Hamilton explains, “It would form an annual deduction from the productive labor of the country, to an amount which, calculating upon the present numbers of the people, would not fall far short of the whole expense of the civil establishments of all the States. To attempt a thing which would abridge the mass of labor and industry to so considerable an extent, would be unwise: and the experiment, if made, could not succeed, because it would not long be endured.

Finally, Hamilton asks whether the critics who worry about the national militia are being serious.  After all the national army is not made up of people from a foreign land, he says.  “What shadow of danger can there be from men who are daily mingling with the rest of their countrymen and who participate with them in the same feelings, sentiments, habits and interests?”

In addition, how could the federal government agree to unfairly subdue a state when not only the state is represented in the federal government, but all of the other states through their representatives would need to consent to such an action. “Where in the name of common-sense, are our fears to end if we may not trust our sons, our brothers, our neighbors, our fellow-citizens?

In Hamilton’s considered view opposing the new constitution over the issue of a militia at the federal level is a red herring.  The benefits of having national concentrated authority far outweigh any perceived gains of dispersing this authority over multiple states.

Marc S. Lampkin, partner at Quinn Gillespie and Associates LLC is a graduate of Boston College Law School

 

Guest Blogger: Attorney Janice R. Brenman

Tuesday, June 8th, 2010

Alexander Hamilton is widely known as the first Secretary of the Treasury, and one of the strongest advocates of our Constitution.  Born illegitimately in the Caribbean to a Scottish merchant father and a mother of French Huguenot descent, he was already managing the affairs of an accounting office by age 15.  After penning an essay in French detailing the devastation from a local hurricane, Hamilton was offered educational opportunities in the new, promising American colonies.  He volunteered with a local militia, and became an aide to General Washington during the Revolutionary War.  Afterward, Hamilton began an expansive career as a lawyer and political activist.  One of his most enduring achievements was authoring many of The Federalist Papers (originally known as, The Federalist), a series of manifestos advocating the ratification of the United States Constitution.

To maintain anonymity, Hamilton, along with co-authors James Madison and John Jay, used the pseudonym “Publius” (after famed Roman Empire consul) to publish articles in three prominent New York newspapers, and later in bound volumes.  These articles reflect Hamilton’s enthusiasm for the new American country and his sharp mental abilities.  His death, via a duel with political rival Aaron Burr, was the final touch on a life filled with vigorous advocacy in the public policy arena with a special focus on promoting a strong national government for the United States.

Federalist Paper #30, “Concerning the General Power of Taxation.” is perhaps Hamilton at his finest.  Hamilton begins by explaining that the National Treasury exists to subsidize a wide range of legitimate pursuits of the federal government.  The Articles of Confederation gave Congress responsibility for managing needs of the confederacy, yet did not provide the means to do so.

Herein lies the function of taxation – a system by which all citizens have a stake in balancing benefits and costs afforded by a federal government positioned to furnish a functioning army, paying government employees, repaying current and future national debts, and other appropriate expenses.  He posited that a government cannot function absent some taxes, and its power to collect taxes among the populace is necessary.  Without taxes, the people would be plundered as a substitute for legitimate taxation, or, the government would eventually perish.

Hamilton delves into what many of his contemporaries saw as a substantive controversy:  internal and external taxation by the new federal government.  Hamilton explains the difference between an external tax and an internal tax, and then describes how the federal government should be responsible for both.  An external tax is a custom duty levied against any item coming into a colony to raise revenue – for example, a piece of machinery made in England. The duty is paid by the shipper and passed on to the consumer, in the form of a higher price for that machinery.  An internal tax is unrelated to imports or exports.  The Stamp Tax in England set an example – an excise tax imposed on stamped paper for legal documents (including licenses and permits), bills of lading, pamphlets and newspapers.  Therefore, the price of a newspaper included the cost of the stamp placed on the paper as the tax.

Critics of the new Constitution charged that internal taxation should be used exclusively by the State governments and external taxation reserved for the federal government.  Hamilton noted this ideal to be “romantic poetry” and that external taxes alone, on items such as commercial imports, cannot provide enough revenue for a government as extensive as the one proposed, especially in times of war.  Disallowing the federal government from internal taxation violates the maxim of good sense and sound policy he argues.  Essentially, critics claim internal taxation should be the sole authority of local government, and trade revenues should go to the federal government. This policy, however, not only subordinates the federal government, but also forces it to rely on states for security and prosperity of the nation as a whole.  Eventually, the Union would weaken and create conflict between the federal and state government, and perhaps even between the states themselves.

This conflict becomes even more evident during wartime.  The United States was in its infancy, thus capital reserves minimal.  The federal government could not depend on State requisitions alone – a loan would be needed for even the wealthiest of nations since no government would extend credit to the United States absent a reliable method of debt repayment.  Dependence on the states, which might not prove reliable, would force the federal government to seek loans in the private markets essentially subsidizing loan sharks that would charge the new government high interest rates.  For any other national emergency, some might fear funds allocated via taxation would be diverted, even if the national government has the unrestrained power of taxation.

However, two considerations will quiet these fears: (1) during a crisis the full resources of the community will be used for the benefit of the Union; and, (2) deficiencies can be supplied by loans.  Thus, Hamilton argues for a federal internal tax as well as an external federal tax.

Special thanks should be given to a myriad of sources (including Mary E. Webster) with regard to translating the complex lexicon of Chancery Standard used in the Papers into modern English.

Ms. Janice R. Brenman is a former prosecutor now in private practice in Los Angeles. She has commented in major legal publications on the subject of legal reform and celebrity influence on the legal system. She has also appeared in medical malpractice, products liability and complex civil litigation, and is well versed in all forms of discovery.  From 1999 to 2000 Ms. Brenman was a City Prosecutor and Community Preservationist. She clerked for the Honorable Rupert J. Groh, Jr., of the United States District Court for the Central District of California. Ms. Brenman also worked researching, writing and editing under a Nobel Prize winning laureate.

22 Responses to “June 8, 2010Federalist No. 30Concerning the General Power of Taxation, From the New York PacketGuest Blogger: Attorney Janice R. Brenman

  1. Dave says:

    “Revenue . . . must be had at all events.”—Hamilton No.12

    “Money is, with propriety, considered as the vital principle of the body politic; as that which sustains its life and motion, and enables it to perform its most essential functions. A complete power, therefore, to procure a regular and adequate supply of it, as far as the resources of the community will permit, may be regarded as an indispensable ingredient in every constitution.”—Hamilton No. 30

    Okay, okay, I get it—the general government needs a dependable and sufficient supply of money. The questions remain: For what purpose and from whom? And most importantly, how is the federal government going to be restrained from taking too much from the citizens?

    According to Hamilton, the proper check on government taxing is the limit of the “resources of the community.” That’s great if you get to spend other people’s money by becoming the first Treasury Secretary under the new Constitution. It’s not so great in the early years of the 21st century given that, in the last 80 years or so, the federal government has increased its share of the GDP by about 25 times.

    I wish I could go back in time and knock some sense into the good Colonel. With the benefit of hindsight and that oracle of wisdom, experience, we all know that the federal government has an insatiable appetite for citizens’ hard-earned dollars—it never has stopped, and it never will stop, at simply taking money for only those necessary, enumerated objects. One need only review a random sampling of the earmarks (bribes) in any recent legislative monstrosity to discover the government will redistribute our money for just about any project here at home or even abroad.

    What’s happening to various countries in the EU should be a cautionary tale for Americans. The problem countries got in their current situation by the same big-government formula our current administration seems to be adopting: Tax and spend, tax and spend, borrow and spend, borrow and spend . . . . The end is not good—worthless dollars in Americans’ pockets and shared misery for all but the various elite groups. And every aspect of the everyday life of Americans (and now with ObamaCare, the manner and time of our deaths also) will be under government control.

    LIMITED GOVERNMENT IS THE ANSWER. “PUBLIC WELFARE,” “SOCIAL JUSTICE,” “ECONOMIC JUSTICE” ARE THE DISTRACTIONS.

    George Will has a good piece on the Limitless Welfare State:

    http://www.jewishworldreview.com/cols/will060310.php3

  2. Susan Craig says:

    Granted that taxes are a necessary evil where it went off the rails is that we allowed the situation where people were able to vote themselves other peoples money.

  3. So much to wrap the brain around!! Again, as I read each paper the clarity of how far this country has moved from the outlining principles over the years is amazing…and I thought most of our politicians were contitutional lawyers/professors! The intended use of taxation has been mutated, leaders manipulate the English language to justify their encroachment into the private sector and individuals.

    BUT…I read ahead Federalist 31 this morning and without spilling the beans, there is a fabulous point made. One that we’ve all heard before and one that is in full action mode across the country!!

  4. Kurt says:

    Dave,

    I think your argument just underscores how we as citizens need to stay involved and monitor our government. When they get out of hand, kick them out of office. I think many of the founding fathers views where predicated on the idea that the citizenry would cherish their freedoms/rights and would jealously protect them. My reading of their writings show quite a distrust of government. We were expected to constantly question and limit what it does, we are the ones to decide the limit of the resources of the community not government. Do you allow the employee to decide his own pay or do you set it?

    I imagine they would be shocked, dumbfounded and maybe even disgusted at the state of the citizenry’s protection of its rights today – just give us some government cheese and we’ll go back to sleep.

  5. W. B. Neate says:

    Ms. Brenman in the first sentence of paragraph #4, “Herein lies the function of taxation – a system by which all citizens have a stake in balancing benefits and costs afforded by a federal government …..,” highlights what has been lost in our system of taxation. No longer do “all citizens have a stake.” Not only do nearly 1/2 of our citizens pay no federal income tax, but a large and growing portion of this group are recipients of government/taxpayer subsidies. Most sadly these subsidies, along with much of our government spending, come from borrowed funds. I am fearful that this may become a voting block too large to overcome.

    Our system of taxation has morphed from a means of “balancing benefits and costs of government” to a means of social/economic engineering. In large measure the left uses the system to pander to the masses and the right uses it to curry favor with big business. Regrettably I can’t remember who said it but early in the last century it was said that Democracy will fail when the elected realize they can bribe the electorate with their own money. Well, I think they long ago figured it out.

    Survival of life in America as we have known it requires our returning to our founding roots of truly limited government and a method of taxation less susceptible to misuse. Surely the time has come for a Flat or Fair tax. If only we could elect statesmen, rather than politicians, to step up to the plate, make the tough, unpopular decisions and lead with boldness.

  6. Ron Meier says:

    “How can it undertake or execute any liberal or enlarged plans of public good?” This is the essence of the problem today – a definitional problem. The left argues that the “public good” is far more expansive than the right believes it to be. Until we come to grips with and fully understand just how wide and deep the “public good” should be allowed to be, we will not get off the track we’ve been on since FDR’s time. We are arguing this today, but we have not yet reached the crisis stage. History demonstrates that problems are not really addressed until the crisis bubble is pricked by some outside third party (e.g., China refusing to buy more of our bonds). Our legislators are like real estate bankers who will continue to loan money as long as it’s available long after their rational brain tells them that the ending will be ugly. We now know the ending will be ugly, but it’s business as usual in Washington, DC.

  7. Michael says:

    There is wide space to debate what is important to national security. To the extreme, we’ve seen national interest used to justify globalism, i.e., all nations must be intricately woven economically to prevent wars, save the environment, distribute resources most efficiently, etc. The debate has gradually pushed us to where we now finance the defense of other nations, fund wars to defend/install democratic societies, bailout state governments and private enterprises, and so on. There is now a huge federal bureaucracy engaged in nothing more than enforcing and collecting the federal income tax. As many early Americans feared, the power of taxation has helped to create the monster that now paradoxically dictates how we live and pursue happiness (and if we should live) under the guise of protecting us. The monster is now attacking wealth-makers and producers and will see its money supply drastically diminished as a result. This seems to be purposeful and intended to destroy our great nation.

  8. Carolyn Attaway says:

    The words Hamilton wrote to promote the need for a general power of taxation were meant to reassure the citizens of his time of a responsible government. However, when read today, during a time of high national debt and undisciplined spending, these words tend to leave a sour taste in my mouth.

    Two statements in particular sent an aversion through me as we tackle present day events, and rereading Hamilton’s words, I wonder if the Founders even envisioned such abuse to our tax system.

    Hamilton writes “Thus far the ends of public happiness will be promoted by supplying the wants of government, and all beyond this is unworthy of our care or anxiety. How is it possible that a government half supplied and always necessitous, can fulfill the purposes of its institution, can provide for the security, advance the prosperity, or support the reputation of the commonwealth? How can it ever possess either energy or stability, dignity or credit, confidence at home or respectability abroad? How can its administration be any thing else than a succession of expedients temporizing, impotent, disgraceful? How will it be able to avoid a frequent sacrifice of its engagements to immediate necessity? How can it undertake or execute any liberal or enlarged plans of public good?”

    This first statement tends to have been twisted over time to such a degree that today a large number of citizens feel that it is the government’s job to ensure their needs are met and their pursuits are guaranteed. Many people today do not even make the connection between their taxes and what the government can spend. I believe it was a mistake to begin the practice of taking owed taxes out of paychecks. Americans should all have to pay their taxes at the end of the year by writing a check to the government. I think that would be a major wake up call.

    The second statement is “The power of creating new funds upon new objects of taxation, by its own authority, would enable the national government to borrow as far as its necessities might require.”

    Again, I find this logic to have grown out of hand and explode our national debt to a point where recent polls show the same number of citizens that worry about our national debt equals that of those who worry about our national security. Whereas Hamilton was concerned about our national security, and the need to have funds to supply a defense against invasion; today Congress has taxed companies and citizens to such a high degree that is has become a national security problem.

    @ W.B. Neate – It was alarming to read the statistics earlier this year that the number of those receiving government entitlements was larger than those paying taxes. And to top it off, over the past 1 ½ years the number in government jobs grew at a larger pace than private sector jobs.

    There is a great article in the National Review today by Senator DeMint entitled “Constitution of No”. It is a great read! I highly recommend it.

  9. Mary says:

    I understand what Hamilton is saying, and totally agree that the federal government has need of the right for taxation in order to fund the defense and other things that are for “the benefit of the Union.” However, it is everything in that latter category that muddies the waters. “For the benefit of the Union” is totally subjective and takes us into the chaos that we are experiencing now. According to one side, the benefit of the Union is served if the government levies taxes and then spends tax money to feed and house people with low-paying jobs. The other side argues that the good of the Union is served by using that tax money to give credits to companies who can then create jobs for those same people. The elephant in the room is that neither option is the job of the government and has nothing to do with the benefit of the Union as a whole. It only directly benefits certain members of the Union with the hope that it will somehow benefit all. In other words, the tax money is neither needed nor used correctly.

    I had to laugh at Hamilton’s rhetorical question: “But who would lend to a government that prefaced its overtures for borrowing, by an act which demonstrated that no reliance could be placed on the steadiness of its measures for paying?” Can we say, “CHINA!!?” We have demonstrated all of the above and still the money comes flowing in as we spend, spend, spend.

    Finally, Hamilton states: “But two considerations will serve to quiet all apprehension on this head; one is that we are sure the resources of the community in their full extent, will be brought into activity for the benefit of the Union (addressed above); the other is, that whatever deficiencies there may be, can without difficulty be supplied by loans.” The ease of borrowing ALWAYS gets individuals, corporations and countries in trouble. If borrowing is difficult, spending is kept down. To me, Hamilton’s argument lacks the establishment of any kind of boundaries on either taxation or procurement of loans. If there is no boundary on the latter, then there can be no boundary on the former.

    It is rather ironic that this man, so supportive of a strong federal government that could borrow money whenever deemed necessary, had to resign from his position as Secretary of the Treasury because of financial problems of his own. According to World Book, it is because of his views that totally clashed with those of Jefferson and Madison, that the definition of two separate political parties formed and Hamilton led the Federalist Party that favored big government. He was the original liberal progressive!!

  10. Barb Zakszewski says:

    It is very obvious from this next section of the Federalist, dealing with taxation, how much Hamilton supported a very strong Federal government and how much he distrusts the States. He seems to dismiss the arguments from the “anti-federalists” that the Federal government, with almost unrestrained powers of taxation, could become abusive of its citizens…Fast forward 230 years, huh? Still, I do believe he had the best interests of the country at heart, and could not possibly foresee what would happen today…with the confiscatory nature of taxes both at the Federal, state and local levels. I’m not sure if he just did not want to believe that something like that could happen, of if he was just too naive in this particular matter. There was a post from earlier today where the person asked, how is the Federal government going to be restrained from taking too much from its citizens…I did not see an answer in the Federalist up to this point, and I believe we have already crossed that point, witness the TEA parties of today.

  11. […] of Chancery Standard used in the Papers into modern English.  Click here to access the post Constituting America Bookmark […]

  12. Ray Decker says:

    Until we repeal the 16th and 17th amendments and the Federal Reserve Act (which isn’t Federal and has no reserves) and abolish the Internal Revenue Service we will never get control back from the Federal leviathon. The income tax is what gives the Federal Government its massive power.

  13. It would seem to me personally that the majority of the ordinary citizen is not at all worse off in comparison with the genuine American federal government though the fed government can get to execute by some other laws. The governing administration can potentially manage their debt by publishing moolah and their debt deal techniques are helped by simply the number one military on the planet.

  14. Susan Craig says:

    @Kimi, yes the ordinary citizen will be harmed by the indiscriminate publishing of moolah! This is what the Weimar Republic did to try and manage Germany’s debt from World War I. Part of what brought the National Socialists to power was that ordinary citizens needed a wheelbarrow of ‘published moolah’ to purchase a loaf of bread and milk.

  15. Maggie says:

    Kimi….when money is just indiscriminently published it makes the value of said money (and that already in existence) worthless. Monetary value needs to be based on something tangible…ie…gold. If the government floods the market with “new” currency, the money you already have becomes devalued.

  16. Darren Le Montree says:

    Nice piece. As expressed in the comments above, it seems well accepted that the federal government needs taxes in order to function. The rub lies in the questions of how much and from whom. The extreme liberals want to drove out innovation and turn the taxation system into a social engineering mechanism (basically the fine job done by Europe). Whereas, the conservatives would prefer to have all social programs disbanded, liquidate social security, eliminate medicare and all welfare and just let the poor people either grind away in angst or die. Neither way works which is why we have the modified system that we do—which swings from left and right of center like a pendulum with each election cycle. That being said, the current system is unsustainable fiscally because of internal and external forces—the aging of our population and the “flattening of the world” which means we are no longer a hegemic force able to continually grow our way out of the problem and the promises made decades ago are no longer feasible. In essence, the realities of the current state of affairs mean that we cannot have a “fair” taxation system under either model. When 1% of the people control 90% of the wealth, having the rich only pay what they would define as their “fair share” (flat tax) is folly. While expecting our slower growing economy to afford continually increasing debt or tax burdens to fund the ballooning social program obligations is equally impractical. With the system going broke as it is things can only get worse from the perspective of both the left and the right and will continue to get worse until there is some genuine problem solving versus the spin game that has overwhelmed politics in the modern era.

  17. Doris Jean says:

    Taxing should be extremely limited and should never exceed ten percent. People should get together locally and pay for local parks, schools, police, etc. The politicians pay themselves too much money and their salaries are too high.

  18. Debbie Bridges says:

    @Darren “When 1% of the people control 90% of the wealth, having the rich only pay what they would define as their “fair share” (flat tax) is folly.
    Federalist Paper 20 addresses this issue through what can only be called a Fair Tax in today’s language. “…by authorizing the national government to raise its own revenues in its own way. Imposts, excises, and in general, all duties upon articles of consumption may be compared to a fluid, which will in time find its level with the means of paying them. The amount to be contributed by each citizen will in a degree be at his own option, and can be regulated by an attention to his frugal: and private oppression may always be avoided by a judicious selection of objects proper for such impositions”.
    As to your other assertion; “Whereas, the conservatives would prefer to have all social programs disbanded, liquidate social security, eliminate medicare and all welfare and just let the poor people either grind away in angst or die. ”
    I know of no conservatives who want the poor to “grind away in angst or die”. What I am my fellow conservatives would like is for the poor (and I was formally of their ranks, although I am hardly rich now) to as said by Benjamin Franklin, learn to fish as opposed to being given the fish time and time again. That is the biggest issue we have is that our government has made our citizens dependent on the government through entitlements. If someone is in need of assistance it should come from family, friends, church, and their local community. Government should be the absolute last resort used and only in times of true emergency.

  19. Darren writes: “Whereas, the conservatives would prefer to have all social programs disbanded, liquidate social security, eliminate medicare and all welfare and just let the poor people either grind away in angst or die.”

    This is simply patent nonsense, and it’s a Progressive calumny without foundation. A conservative desire not to create or facilitate a welfare state cannot be seen to imply that conservatives, or Libertarians, want people to die in the streets from starvation and disease.

    What Conservatives and Libertarians alike value is self-reliance and methods of public support of those truly in need that does not debilitate them and keep them in economic slavery, which is what the welfare state does.

    Moreover, I have no objection to requiring people to save for their retirement, but the giant Ponzi scheme of Social Security today, where the current working generation is burdened with supporting all the retirees still living is simple insanity. Conservatives want Social Security REFORM, and my vision of it is to put one’s contribution into a PRIVATE savings account that the federal government has NO ACCESS to, rather than giving it to the government to skim and waste.

    As for “1% controlling 90%” this is also nonsense. It’s what I call the Socialist Zero Sum Fallacy. This fallacy is based on the logical and rational error that Socialists make in assuming that in order for one person to acquire wealth, another person, or persons, must be oppressed and must give up wealth. It’s based on a deliberate misunderstanding of economics holding that there is a fixed supply of “wealth” and pouring it from one bucket into another advantages one person while depriving others.

    But it’s a lie, and a deliberate one at that. It’s all part of the propaganda of Progressivism.

    Any competent economist can tell you that the wealthiest people in the U.S. don’t keep their money under their mattresses, it’s constantly circulating and creating even more wealth for everyone, and for the nation. Wealth generates more wealth in nearly unlimited supply.

    It must also be noted that the wealthiest 1/10 of 1 percent of taxpayers pay more than 40 percent of the government’s income tax revenues, so to say they don’t pay enough is preposterous.

  20. Susan Craig says:

    I’m with Seth on this. If it was an across the board 10% not only would everybody (to quote our President) “have skin in the game” but also the so-called “evil rich” would still be paying a lions share of the revenue to the government. Just for arguments purpose say I earn $100 dollars a week and Darren earns $100,000 a week. I pay $10 and Darren pays $10,000 so the take is $10,010 government we each have a 10% stake in the game but Darren has provided over 99% of the revenue.
    As to the Social Services currently provided by big nanny Fed, one of the biggest complaints is that it is a one-size fits all program. I believe that it is more properly handled at the State and preferably the local level where people are more inclined and conversant to local immediate conditions.

  21. I believe I recall a guest on Beck who was explaining the Laffer Curve, sorry I can’t recall his name, saying that a flat tax of about 14 percent on every transaction would replace all other necessary government revenues. Not positive about this however. Perhaps there’s an economic expert out there who can comment.

    And you are absolutely correct that all social services should be dealt with at the state level, and that there is absolutely no need for the federal government to be involved except in the rare case where a particular state cannot meet it’s social services needs.

    But to have every bit of tax revenue sent to Washington, have 20 percent or more skimmed off the top to do nothing more than pay for federal bureaucrats who turn around and send it BACK to the very states they took it from in the first place is pure economic idiocy.

    It sometimes seems as if no one recognizes the fact that the vast majority of our tax money sent to Washington is not sent there to fund the legitimate functions of the federal government, it’s sent there to fund the political redistribution of that very same wealth back to the states, who have become dependent upon that federal largess to pay for all the unfunded mandates that the federal government imposes upon them using the carrot-and-stick method.

    If the states would simply say “no thanks” to the federal handouts, as Colorado Springs did recently, not only would the federal government lose legitimacy for it’s bureaucratic burdens, but the states would be freed from federal intervention. Much of the interference we suffer under from the Feds is caused by our own state legislatures knuckling under to conditional grants from the Feds. The biggest carrot they have is the federal highway system, which they use to coerce states into, for example, setting DUI standards and mandating seat belts.

    It’s all about politics, of course, because even state politicians have to bring home the federal pork, or so they believe, to get elected. They think (and probably correctly) that if they don’t do what the feds want and take the federal grants (extracted from us in the first place), state voters will be mad because some other state got a grant and they didn’t.

    Which makes it our fault for not ourselves demanding austerity and flight from the federal teat by our state legislatures. Weaning ourselves away from federal largess is the beginning of restoring our liberty from oppressive federal taxation.

  22. Susan Craig says:

    Seth, right again.

Guest Blogger: Horace Cooper, Director of the Center for Law and Regulation at the Institute for Liberty

Federalist #31 continues on the topic of the taxing power of the new central government.  Contrasting his significant math and science knowledge with his considered skepticism about humankind generally, Hamilton suggests basic maxims ought to apply as a principle for government’s effective operation.  Just as the maxims in geometry, that “the whole is greater than its part; things equal to the same are equal to one another; two straight lines cannot enclose a space; and all right angles are equal to each other, Hamilton asserts that in ethics and politics, that there cannot be an effect without a cause; that the means ought to be proportioned to the end; that every power ought to be commensurate with its object; that there ought to be no limitation of a power destined to effect a purpose which is itself incapable of limitation.  In other words instead of putting the focus on the means of a particular government activity, greater attention should be paid to whether the purpose is a legitimate one or not.

Rather than merely scrutinizing the technique by which the central government carries out it task say, bailing out automobile manufacturers, Hamilton suggests greater consideration be given to whether it is a legitimate function of the federal government to concern itself with the success or failure of car manufacturers.  A government ought to contain in itself every power requisite to the full accomplishment of the objects committed to its care, and to the complete execution of the trusts for which it is responsible, free from every other control but a regard to the public good and to the sense of the people.

Unless one is particularly scrupulous as to what responsibilities are assigned to the federal government, Hamilton’s view of seemingly unlimited powers of the federal government particularly in the area of taxing authority comes across as audacious and perhaps even dangerous.  However, it is clear upon review that the real danger lies in not carefully assigning duties and responsibilities of the central government.

One key charge of the new government was and remains today, national defense.  In the context of taxation, Hamilton asks how national security can really be put in the hands of the central government if it does not have the ability to call upon the resources, as it needs to carry out its duties.  This is no spurious charge.  One serious problem with the Articles of Confederation is that ostensibly the National Congress had responsibility for national defense, in practice it could not pay for or mandate the carrying out of many of its foreign policy priorities.  Over time this reality could prove quite provocative to the enemies of the new country in America.

Hamilton sees that taxing authority is critical to carrying out national security responsibilities.  As revenue is the essential engine by which the means of answering the national exigencies must be procured, the power of procuring that article in its full extent must necessarily be comprehended in that of providing for those exigencies.

In the military context, this argument is perhaps most powerful.  Nevertheless, even outside of that arena one can contemplate areas of responsibility (such as the administration of justice) in which it is necessary to focus on the importance of the objective and therefore loosening the limits on methods.  If the area of responsibility is appropriate, Hamilton argued that the central government needed the taxing authority to carry out the responsibility.

Critics charged that a general taxing authority for the federal government would make it difficult for states to raise the resources they need for their responsibilities, as the taxes of the federal government would tend to crowd out the resources needed by the states.  It is true that excessive taxation would have that effect, but not necessarily taxation generally.  Hamilton recognizes that there will be legitimate responsibilities that government should carryout.  If those are excessively funded or there are duties undertaken greater than the legitimate responsibilities that government should have, the flaw is not with taxing authority but instead with the government’s makeup or its design.  I repeat here what I have observed in substance in another place, that all observations founded upon the danger of usurpation ought to be referred to the composition and structure of the government, not to the nature or extent of its powers.

Powers split among a bicameral legislature along with an executive and judicial branch each with unique and overlapping authorities providing a check and balance against each other resulting in a greater protection of liberty for all the citizens will do more than a limit on the type of taxation policy.

Hamilton closes essay #31 with an observation that reveals a great amount of prescience for such a young man.  He says that the same risks that could lead to a national government over-reaching in its power and authority over the people existed just as well with the state government.  While at the time it was nearly universally assumed that state governments — being close to the people — would never overstep their bounds, it appears today that composition and structure matter just as much as the state level as it does at the local level.  Modern state governments have taken on most if not more of the duties of the central government’s welfare state with far fewer organizational or structural restrictions on doing so than exist at the federal level.  Taking the opposite view of Hamilton, many states have balanced budget requirements but no formal limits on the types of duties that it may assume.  Often as a result the residents in these “ambitious” states are extremely overtaxed.  States like Texas and to a lesser degree Florida have far more limits on the accepted tasks of the state government and their residents are taxed less.  Nevertheless, regardless of one’s concerns about the lack of formal limits on taxation in the constitution, Hamilton concludes it is by far the safest course to lay them altogether aside, and to confine our attention wholly to the nature and extent of the powers as they are delineated in the Constitution. Every thing beyond this must be left to the prudence and firmness of the people; who, as they will hold the scales in their own hands, it is to be hoped, will always take care to preserve the constitutional equilibrium between the general and the State governments.

Horace Cooper is the Director of the Center for Law and Regulation at the Institute for Liberty

Wednesday, June 9th, 2010

Guest Blogger: Joerg Knipprath, Professor of Law at Southwestern Law School

In various essays, the reader has met Alexander Hamilton, polemicist; in Federalist No. 32, Alexander Hamilton, constitutional lawyer, takes a turn. The topic is whether the power to tax granted to the national government under Article I, Section 8, clause 1, of the Constitution deprives states of the power to tax. In a logical and (mostly) clear progression of premises and conclusions rooted in classic exegesis of the Constitution, Hamilton lays out the argument that the state and national governments have concurrent powers to tax. The matter of “exclusive” and “concurrent” powers is an exploration of the mechanics of our federalism.

From the perspective of government, the power to tax is an essential aspect of sovereignty and self-determination. Our personal experience tells us that dependence on others for funds makes one less fully autonomous and in control of one’s life. Just as an invigoration of Congress’s power to tax was an essential part of the Philadelphia Convention’s mission, retaining the power to tax is essential to state sovereignty, and Hamilton seeks to assuage concerns on that point.

Powers granted to the national government are exclusive only if the Constitution says so (such as the power to make laws for the District of Columbia), if the power is expressly prohibited to the states in some manner (such as the states’ lack of power to tax imports and exports), or if a reservation of the same power to the states would be “absolutely and totally contradictory and repugnant” [italics in original] to the national government’s exercise of the power. All other powers are concurrent, and any conflict between the governments over whether one should tax an activity that the other is already taxing is merely a matter of pragmatic policy. Based on the language of the clause that grants the power to tax to the national government, and the clause in Article I, Section 10, that expressly prohibits the states from taxing imports and exports without Congress’s assent, Hamilton concludes that the power to tax is concurrent, not exclusive.

Today, interpreting powers as concurrent is preferred. That maximizes the residual sovereignty of the states. But, since it does nothing to reduce the powers of the national government, reading a power as concurrent merely multiplies the layers of (often duplicative) government regulations, as, for example, applicants for many types of permits know well.

Hamilton’s argument seems so clear, one wonders why he even made the effort. The answer lies in the sophisticated attacks from the Antifederalists that foretell of political conflict over the practical ability of both the national government and the states to seek tax revenues from the same sources, and over the broader issue of overlapping powers in this novel federal system.

The opponents, led by “Brutus,” see a deeper constitutional problem rooted in an inevitable grab for power by a national government that will seek ever-greater amounts of revenue, to the detriment of the states.“The power to tax is the power to destroy,” as Chief Justice Marshall would write later in McCulloch v. Maryland. Ultimately, the individuals or assets taxed will bear no further assessments. At that point, Brutus predicts, the national government will use the taxing power, the necessary and proper clause, and the supremacy clause to pass laws to gain pre-eminent access to available revenues and to preclude the states from gaining revenues needed to maintain their governments.

While one may question whether such a dire scenario will ever play itself out at a constitutional level through explicit federal legislation to prohibit state taxes (or whether such a law would even be constitutional), it is already happening indirectly. The national government’s hunger for tax revenues is becoming more voracious as ever more aspects of individual lifestyle choices are transferred to national bureaucracies. That leaves the states increasingly hard-pressed to find sources for taxes not yet tapped to the hilt by Congress, though it must be recognized that California politicians, at least, seem to be very creative in finding new turnips from which to squeeze figurative blood.

The national government has long exercised control over the states by distributing to them grants subject to conditions intended to induce state compliance with federal mandates. Those grants are funded through taxes that, if the national government did not levy them, would be available to the states, which could spend the revenues raised without needing to comply with federal mandates. This creeping control over state sovereignty through the taxing and spending powers is one aspect of the lawsuit by various state attorneys-general against the recently-adopted health care reform law.

Hamilton also contrasts the situation of an exclusive federal power where no state participation in the area is constitutionally permitted, with the case where, though the states have concurrent power constitutionally with the national government to legislate, there are “occasional interferences in the policy [italics in original] of any branch of administration [that] would not imply any direct contradiction…of constitutional authority.” A slightly modified version of the latter is the current interpretation of Congress’s expansive power to regulate interstate commerce. That power is concurrent, and the states are able, within broad limits, to regulate interstate commerce through, for example, inspection laws and truck weight regulations.

Congress also can pass laws under its constitutional powers that, under the supremacy clause, override (“preempt”) the states’ otherwise proper concurrent regulations. It was precisely this type of scenario that Brutus raised in his alarm about the effect of the Congress’s taxing power on the states’ power to raise revenue. Hamilton has not directly addressed that argument in Federalist No. 32. He attempts a response in the next essay.

An expert on constitutional law, Prof. 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.  Prof. Knipprath has also spoken on business law and contemporary constitutional issues before professional and community forums.  His website is http://www.tokenconservative.com.

Thursday, June 10th, 2010

Guest Blogger: Joerg Knipprath, Professor of Law at Southwestern Law School

After the appearance in the preceding essay of Alexander Hamilton, Esquire, Federalist 33 sees the return of Hamilton, the rhetorical swordsman, slashing at his opponents and parrying their contentions. The target of his invective is the assertion that, though the national government’s power to tax may not be exclusive and can be exercised by the states concurrently with Congress, the necessary and proper clause allows Congress to expand the reach of its substantive powers beyond what is enumerated. Further, the supremacy clause enables Congress to override otherwise valid state laws that are in conflict with such overreaching federal law. In short, Congress might pass laws prohibiting the states to tax in various ways, as a means to protect Congress’s sources of revenue.

The heat of Hamilton’s response is a measure of the significance, then and now, of the bigger question. This is no longer about the power to tax. Rather, this implicates the breadth of the federal government’s power to act and, therefore, the very nature of the federal system and the division of sovereignty created under the Constitution.

This is not the last time that Publius addresses these topics. Madison has his turn in Federalist No. 44. Nor is The Federalist the only forum. The scope of Congress’s discretion to carry into effect its enumerated powers comes up in extended debate as early as the incorporation by the Confederation Congress of Robert Morris’s Bank of North America in 1781. It occurs again with great vigor in the debates in Congress and the Cabinet in 1791 over the chartering of the Bank of the United States. It occurs once more, in the Supreme Court in 1819, in McCulloch v. Maryland. It continues to this day. Not for nothing has this clause been termed the “elastic clause.”

In these debates the course of argument is always the same. As Hamilton points out, the necessary and proper clause merely restates a power that Congress already has by implication. Even if that clause were omitted, Congress could, by the very existence of a grant of substantive power, adopt any law needed to carry out the object of that enumerated power: “What is a power, but the ability or power of doing a thing? What is the ability to do a thing, but the power of employing the means [italics in original] necessary to its execution?…What are the proper means of executing such a power, but necessary and proper laws?” Congress may have only enumerated powers to which it must point whenever it acts. But within those enumerated powers, Congress has plenary authority, including choosing the proper means.

Once a power to adopt any means necessary and proper to an objective is conceded, it becomes necessary to limit the power. Otherwise, an unlimited power to adopt the means needed to achieve delegated and limited ends effectively creates unlimited power to legislate. These “means” can always be connected to some enumerated constitutional objective through linked justifications that, as Jefferson sneered, resemble the rhyme “This Is the House That Jack Built.”

Hamilton avers that only laws that are proper means to the constitutional objective are permitted. What is “proper” must be judged by the nature of the power to which it is directed. Thus, the federal government could not control intestacy laws because those would not be proper to the “national” nature of any federal power under the Constitution. Yet the Supreme Court recently upheld, under that same clause, a federal law that provides for the civil commitment of certain persons deemed dangerous even after they have completed their criminal sentences. While the criminal law under which these people were sentenced had a (bare) connection to the federal commerce power, it is very difficult to understand how the civil commitment law has anything but a very attenuated connection to a federal power. The connection (as Congress makes clear) is to “public safety,” which is not a delegated federal power, but, rather, a state power.

Moreover, the recent health care law imposes an “individual mandate” to purchase health insurance because that is necessary and proper to regulate the interstate health insurance market. The necessary and proper clause has long stretched, one might say, the meaning of the term “elastic.” Hamilton declares that the usual remedy for a violation must be the citizenry’s judgment. Unfortunately, when Congress expands its powers beyond previous bounds by pandering to some item on an interest group’s wish list, there is usually a collective yawn from the electorate. Will reaction to the foregoing examples be different?

Hamilton also analyzes the supremacy clause, which summarizes the fundamental principle that, within its assigned powers, Congress has plenary power that prevails over any conflicting state act. That supremacy principle extends to federal statutes and treaties, as well as to the Constitution itself. By approving the Constitution, the states accepted that its provisions superseded conflicting ones in their constitutions and laws.

Indeed, the supremacy clause principle and the specific listing of Congressional powers was the more benign proposal in Philadelphia. Madison, Hamilton, Washington, and other “large-state” nationalists supported the Virginia Plan that would have given Congress both a broader and more direct veto over state laws and the power to legislate “in all cases to which the Separate States are incompetent; or in which the harmony of the United States may be interrupted by the exercise of individual Legislation.” One shudders to imagine what policies such forthright grants would produce in contemporary Congresses when even the fig leaf of limited and delegated powers is removed. On the other hand, a skeptic might respond that, by constitutional subterfuge abetted by a mostly passive Supreme Court, Congress has already arrogated to itself virtually the same breadth of power.

Hamilton argues that only federal laws that themselves are constitutional can be the supreme law of the land. There is nothing to fear from that clause, as long as Congress does not exceed its powers under the other clauses. As discussed above, in that last point lies the rub.

An expert on constitutional law, Prof. 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.  Prof. Knipprath has also spoken on business law and contemporary constitutional issues before professional and community forums.  His website is http://www.tokenconservative.com.

Friday, June 11th, 2010

Guest Blogger: Brion McClanahan, Ph.D., author of The Politically Incorrect Guide to the Founding Fathers

By the time Alexander Hamilton wrote Federalist No. 34 on 4 January 1788, he had been publishing essays on the topic of taxation at a blistering pace.  He penned two the day before, and he authored seven essays, each around two thousand words, in the span of twelve days.  No. 34 directly addressed portions of essay No. 7 by the Antifederalist Brutus, presumably Robert Yates, which appeared the day before in the New York press.  Read in tandem, the two provide a window through which readers can clearly view the competing positions of the Antifederalists and Federalists.

Brutus charged that the unlimited taxing power for the general government under the Constitution would result in two scenarios: “Either the new constitution will become a mere nudum pactum [naked promise], and all the authority of the rulers under it be cried down, as has happened to the present confederation—or the authority of the individual states will be totally supplanted, and they will retain the mere form without any of the powers of government.”  He additionally argued that coequal taxing authority as designed in the constitution was impractical in a confederated republic.  In his estimation, taxes should be “divided” between the States and the general government “and so apportioned to each, as to answer their respective exigencies….”  Thus, Brutus advocated a true federal republic that maintained State sovereignty, and in particular the expressed and limited taxing power of the general government.  Simply stated, Brutus feared the destructive effects of a “national” government on State and local authority.

Hamilton retorted that history had proven this position incorrect.  The Romans had two equal and often hostile legislative bodies with the power to repeal and annul the acts of the other, “yet these two legislatures coexisted for ages, and the Roman republic attained to the utmost height of human greatness.”  But, Hamilton argued, the Constitution did not allow either the States or the general government to “annul the acts of the other,” and he also contended that the “wants of the States will naturally reduce themselves within A VERY NARROW COMPASS…”  Hamilton countered that if the Framers had adopted Brutus’ line of reasoning, then the States would also be limited in their respective areas of taxation, either exclusively or proportionally, and the end result would be State subordination to the general government, the very thing Brutus argued against.  Hamilton was admitting, however, through his statement that States would have “a very narrow compass,” that the Constitution created a “national” and not a “federal” republic.

States, Hamilton opined, would need little to support their domestic affairs while potential “contingencies” may require the vast and unlimited resources of the central authority.  Limit the taxing power of the general government, and you limit the ability of the common defense.  In his mind, history had proven that foreign and domestic dangers would arise and as such the “national” government should have the means to preserve the “tranquility” of the republic.  “To judge from the history of mankind,” Hamilton stated, “we shall be compelled to conclude that the fiery and destructive passions of war reign in the human breast with much more powerful sway than the mild and beneficent sentiment of peace; and to model our political systems upon speculations of lasting tranquility, is to calculate on the weaker springs of the human character.”

Brutus agreed with Hamilton’s assessment of human nature, but he also believed that the States had a primary role in resisting foreign or domestic disruption.  States ensured domestic peace by “administrating justice among its citizens,” and through “the management of other internal concerns.”  This was the basis of the “happiness of the people,” and if the States did not have the resources to maintain peace—if they could not raise enough revenue—then they would be easily “subdued by foreign invaders.”  Like Hamilton, Brutus believed history had proven his point, and if the States were robbed of adequate taxing power, then the “peace and good order of society,” what Brutus called the “province of state governments,” would suffer.  After all, Brutus argued that the object of government was to, “save men’s lives, not to destroy them,” and as such the “united states” should be an “example of a great people, who in their civil institutions hold chiefly in view, the attainment of virtue, and happiness among ourselves.”  Central authority and excessive taxation were not required to do so and could potentially result in internal discord.

Here are the two competing visions of the American order: Hamilton the nationalist; Brutus the champion of a federal republic.  While Brutus incorrectly thought that the States would disappear if the Constitution were ratified, they have certainly been reduced to little more than administrative provinces for the federal government, and he was correct that revenue would be a consistent problem for State and local governments.  Surely, State efforts to combat illegal immigration—“foreign invaders”—could be better augmented by revenues destined for federal coffers, and internal discord caused in part by excessive centralization and taxation has been a problem in American history.  For his part, Hamilton never envisioned this happening.  He firmly believed in 1788 that the States were an essential component of the new government, though not to the same extent as Brutus.  As he later said, “The states can never lose their powers till the whole people of America are robbed of their liberties.  These must go together; they must support each other, or meet one common fate.”

Brion McClanahan, Ph.D., is the author of The Politically Incorrect Guide to the Founding Fathers, and has written for townhall.com, humanevents.com, lewrockwell.com, and thetenthamendmentcenter.com.  He currently teaches history at Chattahoochee Valley Community College in Phenix City, Alabama.

Monday, June 14th, 2010

Guest Blogger: Joseph Postell, Assistant Director of the B. Kenneth Simon Center for American Studies at The Heritage Foundation

In the midst of discussing questions of tax power and policy, Federalist 35 ventures into a fascinating argument about the nature of representation in a democratic republic – a very relevant question today.

The argument about representation is a response to an Anti-Federalist claim that the House of Representatives will be too small to contain citizens from all classes and occupations, and that this will prevent “a due sympathy between the representative body and its constituents.”

When we first read this, we can’t help but identify with the Anti-Federalists.  In 21st Century America there could hardly be less sympathy between our representative body and its constituents!

But upon further investigation, Hamilton argues, we will see that the Anti-Federalists’ argument is “made up of nothing but fair sounding words.”  Most significantly, he rejects the call for “an actual representation of all classes of the people by persons of each class.”

There are two related problems with the Anti-Federalists’ argument, according to Hamilton.  The first is that it misunderstands the nature of representation.  The Anti-Federalists presumed that representation should produce a legislature that is a “mirror” of the public at large.  It should look like a microcosm of the people themselves if they could assemble directly for the purpose of making laws.  Representation, in this view, is merely a practical mechanism which should reflect direct democracy as much as possible.  It should not refine public opinion.

The second but related problem with the Anti-Federalists’ argument, Hamilton claims, is that representatives are not mere guardians of a particular interest.  They are supposed to pursue the common good of the whole society.  To argue that a legislative body should contain a composite of classes and occupations equal to the society at large is to imply that a cobbler’s interest can only be pursued by a cobbler, that an attorney’s interest can only be pursued by an attorney, and so on.

Such a claim is an affront to the Founders’ principle of equality, because it assumes that it is impossible for representatives to transcend the particular interests of society and pursue the good which is common to all.  It implies that our interests are so different that they cannot be reconciled, and that the only alternative we have is a constant struggle of class against class, economic interest against economic interest.

In essence, the basic question is this: are we merely the sum of a variety of interests, or is there something higher than our parts?  Should our legislature simply be composed of a variety of classes and occupations, each looking out for itself, or should representatives be chosen who can transcend these particular interests and combine them for the good of the whole?

Hamilton and the Founders were not so naïve as to think that various economic interests will always be harmonious.  But they argued that representation would subordinate the pursuit of these particular interests to the pursuit of the general good.  The way to do this is not to give every interest a seat at the table, but to keep representatives accountable to all of their constituents.

Hamilton argues, “Is it not natural that a man who is a candidate for the favor of his people and who is dependent on the suffrages of his fellow-citizens…should take care to inform himself of their dispositions and inclinations and should be willing to allow them the proper degree of influence upon his conduct?”  Electoral accountability is the way to ensure that representatives pursue the public good, because it forces representatives to be informed of all of the interests of their constituents.

“This dependence” on the votes of the people, Hamilton concludes “and the necessity of being bound himself and his posterity by the laws to which he gives his assent…are the only strong chords of sympathy between the representatives and the government.”

In today’s politics, it often seems like representatives more often seek to satisfy particular interest groups than pursue the common good of the whole.  Some have argued that the Founders wanted it to be this way.  But in Federalist 35 Hamilton reminds us that a representative republic allows us to be governed by those who place the public good over the clash of particular interests.

Most importantly, we can only pursue the common good by abandoning the idea of separating ourselves into classes.  Dividing ourselves into separate classes overlooks the natural human equality that is the basis of our rights, and it overlooks the common interests and affections that bind us together as Americans.

Joseph Postell is the Assistant Director of the B. Kenneth Simon Center for American Studies at The Heritage Foundation.  He recently received his Ph.D. from the University of Dallas.

 

Tuesday, June 15th, 2010

Guest Essayist: Attorney Janice R. Brenman

Federalist 36: A Final Word on Taxes

The Federalist Papers contains seven entries specifically addressing how our fledgling nation was to handle the delicate and potentially volatile issue of taxation.  Having touched upon Essay #30 dealing with taxation previously, let’s bookend the topic with a brief synopsis of #36  it is focusing specifically with the central government’s power of taxation: “The Same Subject Continued: Concerning the General Power of Taxation.”

The challenge of taxing a wide number of people fairly lies in the ability to ascertain who and how much to tax.  Hamilton stressed the need for a non-oppressive tax code; one which reflects the interests of diverse individuals, ranging from merchants to carpenters to blacksmiths to lawyers.  It was his hope that each individual would see the need to contribute a portion of their resources to insure continued economic growth, keeping safe a nation poised to give them the privilege of practicing trades as they saw fit and that they would be therefore more willing to comply with the taxing authority.

As Hamilton has observed, a government can be potentially be too efficient when it comes to preserving the power it has by attempting to take more power.  A heavy handed taxing authority would be an example of this. Therefore, it would be preferred to collect monies from a wide swath of workers, while simultaneously shielding the “least wealthy part of the community from oppression.”  As the nation was deemed to be a representative republic, congressional representatives selected locally should represent each district to the national government.  Ideally areas with more residents would contribute a bigger share of taxes than those which were more rural.

Hamilton vehemently opposed poll taxes whereby a “head tax” was equally levied on every adult in the community.  Though poll taxes can raise large sums of money, Hamilton criticized them as unfair burdens and would “lament to see them introduced into practice under the national government.”   Poll taxes survived in the Deep South many years until deemed unconstitutional by the Supreme Court when they were used to limit the franchise.

The taxation issue and related debates have been around for a while.  Disputes involving taxation upon the populace have existed between democratic governments as well as despotic ones.  It is Hamilton’s view that a central taxing authority was necessary for economic growth of the Nation as a whole and for the new government to be able to effectively carry out its duties.

For a country that has gone through so many economic cycles, through boom and bust, one can only wonder how Hamilton would have kept our budgets balanced today, since our government has taken on so many more responsibilities and duties than he ever would have imagined.  The size and scope of government today not only contributes to the present recession, it approaches a near crisis level of debt.   Maybe it seems simplistic, but limited government focusing on specific tasks specially authorized in the Constitution would put our nation in a much stronger financial position and ensure individual liberty for all American.

Ms. Janice R. Brenman is a former prosecutor now in private practice in Los Angeles. She has commented in major legal publications on the subject of legal reform and celebrity influence on the legal system. She has also appeared in medical malpractice, products liability and complex civil litigation, and is well versed in all forms of discovery.  From 1999 to 2000, Ms. Brenman was a City Prosecutor and Community Preservationist. She clerked for the Honorable Rupert J. Groh, Jr., of the United States District Court for the Central District of California. Ms. Brenman also worked researching, writing and editing under a Nobel Prize winning laureate.

Wednesday, June 16th, 2010

 

Guest Essayist: Joerg Knipprath, Professor of Law at Southwestern Law School

Federalist Nos. 37 and 38 depart from Publius’s usual fare of panoramic examination of the weaknesses of historic confederations or dissection of particular objections to the Constitution. Instead, Madison takes up the cause of the project as a whole and of those who remained in Philadelphia to see it through. The thematic thread running through Federalist 37 is “fallibility,” with repeated reminders of human limitations that call for humility and compromise.

His style varies, moving from the evocative tone of the raconteur to the righteous indignation of the remonstrator to the mild defensiveness of the weary apologist. His annoyance with the quantity and variety of criticisms is palpable. He impugns the motives of opponents whom he accuses of a “predetermination to condemn.” Unlike the uncritical enthusiasts who support the project and whose motives may be good or ill, these opponents have no good or even excusably misbegotten motives. To Madison, they act from personal gain or the unwavering arrogance of their  righteous certitude.

Madison fears that the project might, like Gulliver, become tied down by the carping of Lilliputian critics. He knows that delay works against success of any significant and controversial political innovation. He declares, therefore, that he will appeal not to minds already made up, but to the honestly persuadable reader. He pleads with readers to consider the difficulties inherent in an undertaking as momentous as the crafting of a constitution, difficulties that necessarily result in imperfect compromises that expose points for easy attack. It has been said, “A camel is a horse designed by committee.” The Constitution is a camel, a durable and adaptable animal to be sure, but not a sleek and pampered horse planned by “an ingenious theorist…in his closet, or in his imagination.”

Benjamin Franklin, in a speech near the close of the Philadelphia Convention, revealed his doubts about parts of the Constitution. Ever the committed skeptic, he then declared his support “because I expect no better, and because I am not sure, that it is not the best.” Franklin expressed hope “that every member of the Convention who may still have objections to it, would with me, on this occasion doubt a little of his own infallibility” and sign the Constitution. As Madison writes in the next essay, no government is perfect, so that form which is least imperfect is best.

Madison describes the difficulties faced by the Convention in balancing energy in government, stability of laws, and republican liberty, that is, those fundamental characteristics of good government that can be at odds with each. All constitutions share minimum common ground in that they reflect by whom and how governing authority will be exercised. He lays out the delicate balance the Convention had to strike in ordering that authority:

The genius of republican liberty, seems to demand on one side, not only that all power should be derived from the people; but, that those intrusted with it should be kept in dependence on the people, by a short duration of their appointments; and that, even during this short period, the trust should be placed not in a few, but in a number of hands. Stability, on the contrary, requires, that the hands, in which power is lodged, should continue for a length of time the same. A frequent change of men will result from a frequent return of electors; and a frequent change of measures, from a frequent change of men: whilst energy in government requires not only a certain duration of power, but the execution of it by a single hand.

Republicanism. Liberty. Stability. Energy. Ideas that animated the Framers, as reflected in numerous essays by Publius, those were also the objects of the Convention’s plan. That plan had to be practical, driven by experience, not by unbending fidelity to some abstract theory. The vastness of the project and the limitations of human ability complicated the task. It was not merely determining the republican operation of government through elections and representation. It was also the daunting work of designing a new federal structure by balancing the state and national political domains, and of properly calibrating the separation and interaction of the three branches of the national government, all while damping the jealousies among states and regions.

This endeavor is made difficult by the “indistinctness of the object [the absence of fixed rules of nature to show how these institutions should be designed to accomplish the objects of the plan]; imperfection of the organ of perception [the fallibility of the human mind that prevents us from recognizing the perfect path], inadequateness of the vehicle of ideas [the limitations of language in the expression of ideas].” Madison regrets that “no language is so copious as to supply words and phrases for every complex idea, or so correct as not to include many, equivocally denoting different ideas.” Interpretation of written text must start with the words. But every writing suffers from the inherent vagueness and imprecision of language. For contracts, laws, and constitutions, which affect groups of persons, the reader’s mere subjective impression will not do, and recourse must be had to various extraneous sources of meaning. Those imperfections may mar the Constitution; but they will also mar any alternative.

Madison is moved to wonder “that so many difficulties should have been surmounted….It is impossible for any man of candour to reflect on this circumstance, without partaking of the astonishment. It is impossible, for the man of pious reflection, not to perceive in it the finger of that Almighty Hand, which has been so frequently and signally extended to our relief in the critical stages of the revolution.” Due recognition of the fallibility of all involved requires of them humility about their own wisdom and at least a spirit of sensible compromise (though not, by that, a lack of firm principles). Those are the marks of statesmen in contrast to mere politicians, and Madison calls on both sides to be statesmen.

Good advice through the ages.

An expert on constitutional law, Prof. 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.  Prof. Knipprath has also spoken on business law and contemporary constitutional issues before professional and community forums.  His website is http://www.tokenconservative.com.

Thursday, June 17th, 2010

 

Guest Essayist: Joerg Knipprath, Professor of Law at Southwestern Law School

While Federalist 37 defends the Philadelphia Convention and the Constitution by recalling the difficulties involved in completing such a complex and novel undertaking, Federalist 38 is a full-throated attack on the Antifederalists. To counter the accusations—at least formally defensible—that the Convention was a revolutionary body that threatened liberty, Madison first reminds his readers that the Convention differed from historical procedures for constitutional innovation. Traditionally, such change was put in the hands of (or seized by) a single law-giver. The danger to liberty posed by such a charismatic leader was avoided by the use of a multitudinous assembly. On the other hand, such an assembly has all the characteristics of faction that he described in the previous essay as making the Convention’s work so difficult.

After this rather mild prologue, Madison sets to work. He likens the United States to an imperiled patient and the Convention to a panel of physicians. The latter agree that the situation is critical, but not so desperate that it cannot, “with proper and timely relief…be made to issue in an improvement of his constitution.” [Here the reader pauses briefly to acknowledge the clever pun.] Then a prescription for relief is made, only to trigger an invasion of nay-sayers who, though they admit the danger, alarm the patient against the cure and prohibit its use. This reminds one of risk-averse bureaucracies that prohibit or stall the use of new drugs for grave conditions because the potential side-effects are not entirely ascertained.

Worse, the objectors cannot agree exactly why the cure is bad. Nor can they agree on an alternative. Madison obviously relishes the opportunity to list various objections, all arranged for maximum ridicule. Though he avoids names, Madison’s examples likely would have brought to readers’ minds various specific opponents, particularly in the New York and Virginia ratifying conventions. Mocking the opponents’ portrayed disunity in order to blunt the dangerous calls for a new convention that were resonating with the public, Madison uses the variety of the objections to declare that the Constitution would likely be immortal if it were put in effect “not until a BETTER, but until ANOTHER should be agreed upon by this new assembly of lawgivers. [Emphasis in original.]”

His role as a champion of the Constitution prevents him from giving rhetorical quarter to his opponents, but they were not the intemperate and intellectually vapid lot Madison portrays through his caricatured compilation. Opposing specifics of the Convention’s product hardly makes one deserving of ridicule. Madison should know. Of 71 proposals he made or strongly and openly supported at the Convention, he lost 40 votes. His desired constitution would have looked remarkably different and more nationalized than what emerged.

Both sides were composed of patriots who ardently desired the success of the republican experiment and the United States. Both sides also had partisans who pursued the more parochial interests of their respective states, as well as their own personal objectives. Usually these conflicting interests operated in the same individuals to varying degrees. The strategic disadvantage the opponents suffered was that they were not a tight-knit cadre, as the writers of The Federalist were. And, of course, they lost. The victor writes the history. But many of them were leading intellectuals, lawyers, politicians, and other educated members of the country’s elite. As Publius infrequently identifies the writers to which he is responding in a particular paper, I should like to take a few lines to mention some of the opposition leaders.

The many effective and famous Antifederalists included Patrick Henry and George Mason of Virginia, Samuel Chase and Luther Martin of Maryland, and Samuel Adams and Elbridge Gerry of Massachusetts. Some opposed the whole project; Henry declared he did not attend the Convention because he “smelt a rat.” Others just wanted a bill of rights. George Mason was one of the most important contributors at the Convention, but, along with Gerry, declined to sign when the Convention refused consideration of a bill of rights. Still others eventually supported the Constitution with varying degrees of enthusiasm.

Many Antifederalists used pseudonyms, in the custom of the day. There was Robert Yates, writing sixteen papers as “Brutus.” Judge Yates was a New York delegate who attended the Philadelphia Convention with Hamilton but left when the delegates moved beyond their charge only to consider revisions to the Articles. A moderate opponent, he was later recruited as a Federalist Party candidate for governor. His influential writings were widely circulated and known for their constructive and analytical criticisms, many of which, unfortunately, have manifested themselves over the years in the federal government that has evolved. Contrary to Madison’s claim, Yates often made suggestions for alternatives. It is curious that Publius never mentions Brutus by name (as he does a few others), although reading the former’s writings, it is clear from the language and the order of argument that he is often responding to the latter’s critiques.

George Clinton, likely author of seven “Letters of Cato,” was the longest-serving governor in American history at 21 years and a two-term U.S. Vice President. He presided over the New York convention and was a moderate opponent of the Constitution who favored adoption conditioned on amendments. His “letters” were widely read, and some historians believe that the effectiveness of his letters impelled the Constitution’s supporters to write The Federalist in response. Cato is specifically mentioned by Publius.

“A Federal Farmer” is traditionally associated with Richard Henry Lee of Virginia, a career politician who was, among many other things, a member of the Confederation Congress. More recent scholars believe that the writer is attorney Melancton Smith, a member of the Confederation Congress and the New York ratifying convention. Hamilton considered the Federal Farmer the most persuasive of the Antifederalists, and refers to him in Federalist 68. The tone in the two pamphlets containing eighteen letters is generally analytical, readable, and moderate. That makes it less likely that Lee, an emotional and powerful orator, is the author. Smith eventually voted for the Constitution, with amendments.

Towards the end of the paper, Madison engages in a dubious tactic of defending the Constitution by declaring the ways that the Confederation has exercised broad powers. That may seem good in theory, but it is unlikely strategically to convince those who are weighing arguments for and against the Constitution. Though the point is to make the Constitution sound tame, one can just as easily draw a different conclusion: If the Confederation Congress is so dynamic, why is there need for change? That said, inducing most of the states to cede their western territorial claims to the United States, taking control of the territory, and passing the Northwest Ordinance as a model of colonial administration for the territory was probably the Confederation’s finest domestic policy success and showed the—ultimately unrealized—potential of the Articles.

Friday, June 18th, 2010

An expert on constitutional law, Prof. 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.  Prof. Knipprath has also spoken on business law and contemporary constitutional issues before professional and community forums.  His website is http://www.tokenconservative.com

 

Guest Essayist: John S. Baker, Jr., the Dale E. Bennett Professor of Law at Louisiana State University

Federalist 39 answers attacks that the proposed Constitution is not “republican” and not “federal.”  In his response, Publius effectively redefines both terms.

Claiming the proposed government is not “strictly republican” is a serious charge.  Publius recognizes this, saying “no other form would be reconcileable with the genius of the people of America; with the fundamental principles of the revolution; or the honorable determination which animates every votary of freedom, to rest all our political experiments on the capacity of mankind for self-government.”

The term “republican” ( Latin “res publica,” or “public thing”) had an uncertain meaning.  Common to its various understandings would have been an opposition to an hereditary monarchy and aristocracy. Republicanism referred to self-government, but proponents and opponents of the new Constitution had very different ideas about what that meant.

On the one hand, Publius acknowledged that “If the plan of the convention, therefore, be found to depart from the republican character, its advocates must abandon it as no longer defensible.” On the other hand, the vision of republicanism offered by The Federalist was quite different from that of the opponents.

Those opposing the Constitution, the Anti-federalists, generally believed that a republic could exist only within a small territory where citizens were able to know one another, live a communal life, and directly govern themselves. Their reading of the French political writer Montesquieu and the example of the ancient republics convinced them that liberty was possible only in such republics.  Thus, the Anti-federalists argued that the government to be created by the Constitution would deprive the people of their liberty.

Publius had already argued in Federalist 9 that “the petty republics of Greece and Italy” leave one “feeling sensations of horror and disgust” because “they were perpetually vibrating between the extremes of tyranny and anarchy.” He also observed that opponents to the Constitution apparently were unaware that the states were already larger than the republics discussed by Montesquieu and that he praised the benefits of a larger “confederate republic.”  Indeed, The Federalist contributes to political theory the idea that liberty is better protected in a large republic, as fully explained in Federalist 10.

Federalist 39 asks “What then are the distinctive characters of the republican form?”  Publius finds that political writers have wrongly applied the term to states that do not deserve to be called republics. Consulting principles of government, Publius says “we may define a republic to be, or at least may bestow that name on, a government which…”  (emphasis added). In other words, he is giving his own definition of the term republic, one which corresponds to principles embodied in the new Constitution.  Thus, Publius says a republic may be defined as “a government which derives all its powers directly or indirectly from the great body of the people; and is administered by persons holding their offices during pleasure [presidential appointees], for a limited period [members of Congress and the President], or during good behavior [federal judges].”

Finally, Federalist 39 contends that the language in the Constitution explicitly prohibiting titles of nobility and guaranteeing the states will have a republican form of government proves the republicanism of the proposed government.

This large republic was also to be a (con)federal republic. But the Anti-federalists also charged that the Constitution violated the federal form.  Publius did not actually deny this particular charge. Rather, he contended that “a just estimate of [the argument’s] force” requires first ascertaining “the real character of the government.”  Before explaining that the real character is only “partly federal,” he added that the argument’s force also depended on the authority and duty of the Convention.  In the following essay, Publius will argue that the authority of the Convention, as well as its duty to the people, justified creating the form of government proposed by the Constitution.

Given the common understanding of “federal” at the time, the Constitution did violate the federal form. Prior to adoption of the Constitution, the words “federal” and ‘confederal” meant the same thing, just as “flammable” and “inflammable” currently have the same meaning. The Federalist, itself at times, used these terms interchangeably.  Clearly, however, the Constitution proposed to create something different from the existing confederacy.

Federalist 15 had identified the great vice of a confederacy as the attempt by a league of states to legislate for state governments, rather than for individuals.  The Articles of Confederation did not directly govern individuals, but the Constitution would do so – within its limited list of powers. The new government’s ability to reach individuals and the “necessary and proper clause” prompted the Anti-federalist fear that the Constitution would completely consolidate power in a national government.

Publius had to explain that the Constitution would not create a consolidated national government. Federalist 39, therefore, explained the mixture of federal and national elements among five essential aspects of the Constitution: its ratification or foundation [national], the sources of its ordinary powers [partly federal –the Senate; partly national-the House], the operation of its powers on individuals [national], the extent of the powers, i.e., limited [federal], and the method of amendment [neither wholly federal nor national].   Based on this mixture of elements, Publius  concluded: “The proposed constitution, therefore, …is, in strictness, neither a national nor a federal constitution; but a composition of both.”

This “compound republic” created by the federal Constitution came to be known as “federalism.” As a result, the “federal” form became distinguished from the “confederal” form  existing under the Articles of Confederation. This new form of federalism involved a residual – rather than complete – sovereignty in the states.  Indeed, as a limited Constitution, neither the federal nor the state governments were “sovereign” in the true sense of the word as a supreme power answerable to no other power.  Rather, under the Constitution, “We the people of the United States” are the political sovereign and the Constitution is “the supreme Law of the Land.”

Some argue that the Anti-federalists correctly predicted the consolidation of power in the national government.  Such an argument, however, overlooks the critical shift of power caused by the Seventeenth Amendment.  That amendment took the election of US senators from state legislatures and gave it to the voters.  As a result, the key federal, i.e. state, protection against the concentration of power was lost.  That is to say, the Seventeenth Amendment deprived the states of their direct representation in the federal government.   As long as the state legislatures elected senators, the states had the ability to pressure enough senators, even if only a minority, to prevent incursions on state power.  State legislatures no longer have that ability.

John S. Baker, Jr., the Dale E. Bennett Professor of Law at Louisiana State University, regularly lectures for The Federalist Society and teaches courses on The Federalist for the Fund for American Studies.

Monday, June 21st, 2010

Guest Essayist: Joseph Postell, Assistant Director of the B. Kenneth Simon Center for American Studies at the Heritage Foundation

One can only imagine the difficulty James Madison had writing Federalist 40.  The question was this: did the Constitutional Convention overstep its authority by abolishing the Articles of Confederation in favor of a new government, rather than merely reforming the Articles?

Consider that when the Convention assembled in the summer of 1787, a government already existed in America.  Although it had failed in practice, the delegates were supposed to revise, not to abolish the Articles.  Moreover, according to the Articles, changes had to be ratified by all of the states in order to become law.

Imagine if the same thing happened today – if the states established a convention to revise the Constitution, but which instead called for scrapping the entire document and building a new one from scratch…and which created entirely new procedures for ratifying those changes!

Indeed, there were difficult legal questions regarding what the Constitutional Convention did.

Madison’s response to these issues seeks to answer two questions: “whether the Convention were authorized to frame and propose this mixed Constitution,” and “how far considerations of duty…could have supplied any defect of regular authority.”

In answering the first question, Madison defends the legality of the Convention’s recommendations.  In the first place, Madison replies, the delegates’ duty was to establish a government adequate to its purposes as well as to revise the Articles.  But if these two objectives were incompatible, “Which was the more important, which the less important part?”  The objective of forming an adequate government, he implies, trumps the delegates’ assignment to revise the Articles.

Furthermore, Madison argues, how do we know when we have crossed the line from revising a form of government to abolishing it?  Can we “mark the boundary” between “alterations and further provisions” and “transmutation of the government”?  At what point does altering the government become destroying it?

Because the Constitution preserved the essentials of the Articles of Confederation, Madison alleges, the delegates simply revised the Articles rather than abolish them.  Under the Constitution “the states are regarded as distinct and independent sovereigns.”  Furthermore, “One branch of the new government [the Senate] is to be appointed by these [State] legislatures.”  Finally, “in the new government as in the old, the general powers are limited, and…the states in all unenumerated cases, are left in the enjoyment of their sovereign and independent jurisdiction.”

Madison admits that the Convention departed from the Articles in one respect: the amendment process.  However, Madison argues that this was good, because of “the absurdity of subjecting the fate of 12 states, to the perverseness or corruption of a thirteenth.”

Having answered the first question, Madison asks the second question – whether the delegates’ duty to their country could compensate for any defect of authority.

In response, Madison reminds his readers that the Convention merely proposed a Constitution for the people to approve or reject.  Without ratification, the Convention’s plan was “of no more consequence than the paper on which it was written.”

The Constitution was ratified by the people, not by the Convention.  How could the people lack the legal authority to change their Constitution?  The delegates, Madison continues, “must have reflected, that in all great changes of established governments, forms ought to give way to substance; that a rigid adherence” to forms “would render nominal and nugatory, the transcendent and precious right of the people to ‘abolish or alter their governments as to them shall seem most likely to effect their safety and happiness.’”

The lessons of Federalist 40 are important even today.  Madison explains that in a free society the people are the masters of the government, rather than vice versa.  In a situation where the government cannot adequately pursue the good of the people, it is the right of the people to revise the forms of government to ensure that the substance of government is in accordance with first principles.

The Founders, Madison explains, did not intend to create a rigid government, forever impervious to change.  Such a government would deny the people the basic right to govern themselves.  Instead, the Founders left us an amendment process because they foresaw the need for future changes.

However, Madison also cautions us against changing “the essentials” of the Constitution: our federal system, the separation of powers, and the limited powers of the national government.  Though we should always determine our constitutional forms, we have the responsibility to uphold the principles of the Declaration of Independence: that government exists to protect natural rights and must be limited in order to do so.

Tuesday, June 22nd, 2010

Joseph Postell is the Assistant Director of the B. Kenneth Simon Center for American Studies at The Heritage Foundation.  He recently received his Ph.D. from the University of Dallas.

 

Guest Essayist: Joerg Knipprath, Professor of Law at Southwestern Law School

In a lengthy essay, Madison embarks on a series of defenses of Congressional powers that he pursues in more detail through Federalist 46. In Federalist 41, he proposes to divide that task over the course of the following several essays by examining whether any particular power is unnecessary and improper and also whether the entire mass of powers is dangerous to the continued vitality of the states.

He opens with a reminder that, in the end, the Constitution is a practical undertaking, not a theoretical blueprint for an ideal state. He derides the opponents as having “chosen rather to dwell on the inconveniences which must be unavoidably blended with all political advantages; and on the possible abuses which must be incident to every power of trust, of which a beneficial use can be made.” He proceeds with a powerful and very relevant indictment. “[This tactic] may display the subtlety of the writer; it may open a boundless field for rhetoric and declamation; it may inflame the passions of the unthinking, and may confirm the prejudices of the misthinking: but cool and candid people will at once reflect, that the purest of human blessings must have a portion of alloy in them; that the choice must always be made, if not of the lesser evil, at least of the GREATER, not the PERFECT good; and that in every political institution, a power to advance the public happiness, involves a discretion which may be misapplied and abused.”

This passage richly describes a basic phenomenon in politics. Human institutions are designed by imperfect beings to control imperfect beings and administered by imperfect beings. “A government of laws, not of men,” matters, but only to a point. In the end, government is still administered by humans. Perfect systems are imaginary. “Utopia,” which we treat as if derived from the Greek “Eutopia” (a good place), actually is Greek for “not a place.” Utopias do not exist. Rhetorical appeals over potential, yet unrealized, abuses of power are a staple of political discourse. When considering the merits of politicians and political choices, there are always ideological purists who accentuate slight differences rather than bountiful similarities. For them, a political figure who does not perfectly reflect their own vision of the perfect system is suspect, and a political choice that deviates even in minor particulars from their utopian views must be condemned. The perfect, as the saying goes, becomes the enemy of the good.  As he did in earlier efforts, such as in Federalist 37 and 38, Madison urges more temperate and balanced reflection.

After some general observations, he returns to a favorite topic of contention, the keeping of a peacetime army. He proclaims that the matter “has been too far anticipated, in another place, to admit an extensive discussion of them in this place.” Yet, he proceeds to declaim about the topic for half the paper, evidence once again of the frequency and relentlessness of the opponents’ attacks. Those attacks resonated with the public and with many delegates because of the troubling history of standing armies and the tension they reflect with republican ideas.

Two passages stand out. The first is, “Security against foreign danger, is one of the primitive objects of civil society. It is an avowed and essential object of the American union.” There are those who will happily give to the government powers to intrude into the most everyday matters, but act aghast when miliary funding is sought or when a state (reacting to the failure of the federal government to carry out its responsibility in such matters) seeks to protect its people from threats to security coming across the border. This kind of attitude inverts the purpose of government, to provide for personal security for people and allow them to pursue happiness as befits them, not to reduce people to a state of dependency on the government for personal needs.

The second passage is, “It is in vain to oppose constitutional barriers to the impulse of self-preservation. It is worse than in vain: because it plants in the constitution itself necessary usurpations of power, every precedent of which is a germ of unnecessary and multiplied repetitions.” As Publius has written before, necessity knows no bounds in the law. The first rule of nature, for individuals and societies, is self-preservation. There always exists, as countless writers on political theory have declared, a natural right of self-defense. For the proper exercise of that right, there must be a right to arm oneself with reasonable means, a right that applies to individuals as much as nations. Any attempt to restrict that right will fail, as the impulse to self-preservation will prevail at least in those individuals or societies who have not become personally or civilizationally enervated. Indeed, restricting that right will undermine the legitimacy of the constitution itself, as respect for the whole is undermined by repeated violations of an unsustainable provision.

The last portion of the essay discusses a power that has become a conspicuous symbol of the expansion of government, the power to spend. Madison objects that opponents of the Constitution have mislead the people in arguing that the power to “lay taxes…to pay the debts, and provide for the common defence and general welfare of the United States,” gives the Congress the power to legislate for the general welfare. First, he declares correctly that this is a nonsensical reading. “A power to destroy the freedom of the press, the trial by jury, or even to regulate the course of descents…must be very singularly expressed by the terms ‘to raise money for the general welfare.’” The general welfare language, then, is not a broad grant of power that would make the following enumeration of powers superfluous and contradictory, but a limitation on the power to spend the revenue raised under the taxing power.

As an interesting historical side note, during the Convention, the clause, derived from language in the Articles, was intended to prevent spending of money for “internal improvements” that promoted the welfare of particular states or localities, rather than the general welfare of the United States. But Pennsylvania’s Gouverneur Morris, a strong nationalist who was also the principal draftsman on the Committee of Style that was responsible for the final wording of the text, surreptitiously inserted a semicolon between the power “to lay and collect…excises,” and the limitation of “to pay the debts….” That made the latter seem like an independent power, just as the other powers were separated by semi-colons. Connecticut’s Roger Sherman discovered Morris’s sleight of hand, and the Convention voted to replace the semicolon with a comma.

Second, Madison defines the general welfare as defined by the following specific clauses. He maintained that position in later debates. Hamilton, in contrast, during the debates in the Washington cabinet over the Bank of the United States, claimed that the other enumerated powers of Congress already include within them an implied power to spend for those objectives. Thus, a power to establish post offices includes the power to pay for them. According to Hamilton, the power to spend for the general welfare goes beyond the objectives listed in the Constitution. That is the long-established view of the Supreme Court, as well.

However, that raises the question of what limits exist on the power of Congress to spend. After all, if Congress can spend for objects not within its enumerated powers, it might be able to do indirectly what it cannot do directly. Spend money to control education, for example. Hamilton insisted that the limit was that the spending had to be for the “general” welfare. Yet, unlike the Convention, he also supported spending on subsidies for manufactures and, after some initial misgivings, on internal improvements. He had a much laxer view of “general” welfare.

Today, that leaves Congress in charge of defining “general” welfare. Since many expenditures are earmarked for projects that benefit particular individuals, companies, or communities, the Congress is adept at cloaking rather everything as somehow affecting the general welfare. The spending power has gone far beyond the understanding of the Framers. Bloated spending may prove to be much more of a threat to the national well-being of the country than the standing armies that prompted such concern.

Wednesday, June 23rd, 2010

An expert on constitutional law, Prof. 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.  Prof. Knipprath has also spoken on business law and contemporary constitutional issues before professional and community forums.  His website is http://www.tokenconservative.com.

 

Guest Essayist: Horace Cooper, Legal Commentator and Director of the Institute for Liberty’s Center for Law and Regulation

In Federalist #42, James Madison attempts to clarify the importance of national powers found in the Constitution that are essential to the successful operation of the government particularly in national and international affairs.  Categorizing these powers as second and third class was a means of distinguishing them not to disparage them.  Among them are: relations with foreign nations including the ability to make treaties,  to send and receive ambassadors, other public ministers, and consuls; to define and punish piracies and felonies committed on the high seas, and offenses against the law of nations;  and to regulate foreign commerce as well as interstate commerce between the states among others.

It is noteworthy that among the “second class of powers” he refers to is specifically the power to regulate and ban the importation of slaves.  Rather than hide or downplay this provision, Madison like many of the founders understood that while the acceptance of the institution of slavery was part of the compromise that allowed them to go forward with the Constitution, they made sure the public understood their anti-slavery sentiment and their plans to exercise the powers at the federal level.  Madison reminds his readers that “while it is to be wished, that the power of prohibiting the importation of slaves had not been postponed until the year 1808, or rather that it had been suffered to have immediate operation” within the space of 20 years “It ought to be considered as a great point gained in favor of humanity …. within these States, a traffic which has so long and so loudly upbraided the barbarism of modern policy; …..it will receive a considerable discouragement from the federal government, and may be totally abolished..” As Madison predicted and although it is often unmentioned, Congress banned the importation of slaves in August of 1808 the same year that the Constitution gave them the authority to do so.

In any event, Madison explains that while several of the international powers existed within the Articles of Confederation, others did not.  Treaty making and ambassadorial relations were among the powers of the first government.  However, the Constitution made treaty making easier by requiring two-thirds of the Senate to ratify them and caused ratified treaties to be treated as the equivalent of federal law in terms of conflicts with state laws.

On the other hand, the Articles failed to adequately address the issue of defining and punishing piracies and other felonies committed on the “high seas.”  Madison explains that the Constitution is far superior in this regard because although tribunals were authorized under the Articles, the actual definition of the violations as well as the scope of activity covered was not provided for in the Articles.  Madison feared that such a scenario could mean that one of the States could have a law defining an offense as piracy that the other states do not recognize.  When a breach of this law occurs, Madison laments that such a situation could result in the other states being obligated to submit manpower and related resources to defend claims that they do not even recognize or embrace.

Since the regulation of international or foreign commerce had been addressed in other contexts, Madison passes on it here.

Among the third class of powers that Madison references are those involving “the harmony and proper intercourse among the States and these include:  “to regulate commerce among the several States and the Indian tribes; to coin money, regulate the value thereof, and of foreign coin; to provide for the punishment of counterfeiting the current coin and securities of the United States; to fix the standard of weights and measures; to establish a uniform rule of naturalization, and uniform laws of bankruptcy, to prescribe the manner in which the public acts, records, and judicial proceedings of each State shall be proved, and the effect they shall have in other States; and to establish post offices and post roads.”

It is difficult to look at this list of authorities without seeing the merchant class sympathies of Madison and the founders.  While it may seem incredible today to consider, Madison and Hamilton were not neutral on the question of whether the new government should be pro-business or not.  Explicitly empowering the federal government to coin money, establish standards for weights, prevent counterfeiting, enact bankruptcy laws as well as create a federal mailing system and construct federal highways make much more sense if one understands the founders’ sympathies for America being a mecca for entrepreneurship and related economic opportunity.

Madison makes clear that the power of interstate commerce was tied to international commerce and without interstate commerce power state and local governments would continue to have the authority to frustrate trade.   “A very material object of this power was the relief of the States which import and export through other States, from the improper contributions levied on them by the latter. Were these at liberty to regulate the trade between State and State, it must be foreseen that ways would be found out to load the articles of import and export, during the passage through their jurisdiction, with duties which would fall on the makers of the latter and the consumers of the former. We may be assured by past experience, that such a practice would be introduced by future contrivances; and both by that and a common knowledge of human affairs, that it would nourish unceasing animosities, and not improbably terminate in serious interruptions of the public tranquility.”

Madison recognizes commerce and business activity as crucial to the success of the American system.  Madison makes clear that even in the context of Indian relations that commerce with the tribes was a key issue that warranted national government attention.  “What description of Indians are to be deemed members of a State, is not yet settled, and has been a question of frequent perplexity and contention in the federal councils. And how the trade with Indians, though not members of a State, yet residing within its legislative jurisdiction, can be regulated by an external authority, without so far intruding on the internal rights of legislation, is absolutely incomprehensible.” Madison argues that with this issue handed completely and explicitly to the federal government the nation would get the benefits without undue restraint interfering.

Next Madison turns to the question of rules of naturalization.  Instead of the uniform system that we take for granted, Madison complained about the fact that each of the former colonies had adopted its own views for immigration policy which prevented the new government from deciding in a sophisticated way who it desired to become citizens and who it didn‘t. “The dissimilarity in the rules of naturalization has long been remarked as a fault in our system, and as laying a foundation for intricate and delicate questions. In the fourth article of the Confederation, it is declared “that the free inhabitants of each of these States, paupers, vagabonds, and fugitives from justice, excepted, shall be entitled to all privileges and immunities of free citizens in the several States; and the people of each State shall, in every other, enjoy all the privileges of trade and commerce,” etc. …. The result is that some states essentially had the ability to confer upon individuals rights that they could exercise all across the nation based solely on the happenstance of which area they entered.

Just as Madison argued that it was in our nation’s interest to have a uniform immigration policy established by the Federal government one would imagine his displeasure at the failure of today’s federal government to maintain control over its on rules with regard to immigration policy.  Either because of complexity of compliance with immigration rules, a failure to construct adequate border barriers, limited personnel assigned to immigration enforcement etc, the federal government today is allowing a hodgepodge policy to form influenced more by where or how a person enters the United States instead of ascertaining in advance who should be allowed to enter.

Madison concludes the essay with a statement that reaffirms his view of the importance of business and commerce.  Nothing which tends to facilitate the intercourse between the States can be deemed unworthy of the public care.

Thursday, June 24th, 2010

Horace Cooper is a legal commentator and is the Director of the Institute for Liberty’s Center for Law and Regulation.

 

Guest Essayist: Joerg Knipprath, Professor of Law at Southwestern Law School

In Federalist 43, Madison continues his examination of Congress’s enumerated constitutional powers, presenting a miscellany of provisions. Tucked away at the end of this rather lengthy essay, as if Publius half hopes the reader will be too fatigued to notice, is a matter of signal importance, the provision that only nine states’ approval was necessary to establish the Constitution. Publius dismissed this matter as inconsequential in the extended discussion of the legitimacy of the Constitution in Federalist 40.

One problem for the Philadelphia Convention was that it ignored the requirement in the Articles that any amendment (and certainly a wholesale replacement) had to be by unanimous consent of the states. Madison could have justified the nine-state requirement by declaring that the Constitution was a new project entirely severed from the Articles, and that the old system was dissolved when the Framers met in convention. Dissolving the bonds and returning to a “state of nature” had been the basis for the revolutionary founding under the Declaration of Independence. If the states were once again in a state of nature towards each other, unbound from the prior rules, the approval of the nine states, binding them alone, was proper. Every state that wanted to join had to agree, thereby preserving the social contract fiction of individual and unanimous consent.

For solid reasons, Madison does not select that option. For one, to do so would implicitly endorse charges that the Convention was incompetent to act beyond its mandate because the Constitution would be “revolutionary.” For another, in Federalist 40, Publius emphasized the continuity between the Articles and the Constitution. Likewise, Madison in the current essay describes the change as one merely of political form of an existing civil society, not as the foundation of a new commonwealth. All require obeying the Articles’ unanimity provision for constitutional change.

He is left, then, with intellectually more meager rationalizations. One of these is such strained legalism mixed with a splash of late-18th century American constitutional theory about the deficiency of the legislative amendment process under the Articles that he introduces the concoction with a self-conscious “Perhaps.”

The other is one of unvarnished pragmatism, untethered to any constitutional support. He appeals to the “absolute necessity of the case” (Rhode Island, not having sent delegates, was unlikely to approve); the lesson of “our own experience” (Maryland’s four-year long failure to adopt the Articles during the crucial period of the Revolution); “the great principle of self-preservation”; and the “safety and happiness of society…at which all political institutions aim, and to which all such institutions must be sacrificed” (the ends justify the means, just as in Federalist 40). The lesson here is that necessity creates its own legitimacy, and matters of extreme national interest and safety cannot be burdened by constitutional technicalities. In political theory this is the doctrine of “reason of state,” something that executives long have understood.

A few brief points about some other provisions mentioned. Several involve the organic connection between the national and state governments. The sections regarding admission of new states and control over territory belonging to the United States were intended to give express authority to what the Confederation had done in regards to the western territories. They provide a constitutional basis for the acquisition and integration of the new lands that marked the westward expansion across the continent.

The guarantee to each state of a republican form of government assumes that each state will meet the minimum of avoiding monarchy or hereditary aristocracy. Beyond that, republics can take varied forms, and Publius pledges the federal government to avoid interfering with the states’ choices among them. There are many who have argued that the Supreme Court’s reapportionment decisions violate that pledge.

The protection against invasion commits the Union to a fundamental covenantal obligation. Though “invasion” usually suggests military force, it can mean any threat to the stability of the state from outside its borders, particularly an armed threat. Arizona, facing spill-over from the Mexican drug cartel violence, as well as a more general criminality from illegal entrants onto its territory, might plausibly argue that the federal government has breached that covenant and forced the state to act on “the great principle of self-preservation.”

There are provisions related to the capacity of the national government to exist as a practical sovereign, such as the creation of a federal district as the seat of government. It is noteworthy that this section draws a clear distinction between “district” and “states.” Recent statutory proposals to extend voting representation in Congress to the residents of the District of Columbia must founder on that distinction and on the Constitution’s textual requirement that voting and representation (beyond the “municipal” government of the district) rests on residing in a “state.” Perhaps a cession of most of D.C. (excepting the main government district) to Maryland would solve the problem.

Requiring approval of amendments by three-fourths of the states (and introduction by two-thirds of the states or of the members of each house of Congress) represents a confluence of experience and constitutional theory. Early state declarations of independence and constitutions, both of which altered the existing constitutional orders in those states, were commonly done by majority votes of the legislatures. Such practices reflected the constitutional theory inherited from Great Britain that the legislature virtually represented the general will of the commons expressed through the instruments of parliamentary sovereignty.

However, those practices conflicted with the developing American doctrine that constitutional changes were “explicit and authentic acts” of popular sovereignty superior to ordinary laws. Legislation was, after all, merely an act by the people’s agents in a body created under a constitution. In that view, constitutions were not only descriptions of how things were run, but commands of how they must be run. Constitutions were law, created by the ultimate earthly lawmakers, the people. Since direct participation of the entire people was unrealistic, constitutions were to be proposed by special assemblies and approved by popular vote or a supermajority of representatives. The Constitution relies almost entirely on the supermajority vote principle.

The requirements for amendment were also recommended by experience. Legislative majorities are transient and, therefore, likely to lead to considerable instability and flux in constitutional structure. The experience with continuous constitutional agitation in the states during the 1770s and 1780s alarmed the Framers. At least equally alarming, however, was the hurdle presented by the unanimity requirement of the Articles. While its conformance to emerging American constitutional theory was pristine, it was a practical disaster by frustrating needed reformation. The Framers, being nothing if not practical in their project, sought to craft a method for amendment that was neither prone to instability by too frequent amendment nor to paralysis through too-stringent requirements. Debate continues about whether their solution has worked well, given the relative infrequency of formal amendment, or is too constraining and has resulted in giving the unelected courts too great a role in altering constitutional norms.

Friday, June 25th, 2010

An expert on constitutional law, Prof. 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.  Prof. Knipprath has also spoken on business law and contemporary constitutional issues before professional and community forums.  His website is http://www.tokenconservative.com.

 

Guest Essayist: Joerg Knipprath, Professor of Law at Southwestern Law School

Federalist 44 completes a series that examines specific grants of power to Congress. Madison identifies two classes of powers. One involves direct limits on the states; the other involves a direct grant to Congress and indirect limits on the states.

Among the first, Madison cites prohibitions—carried over from the Articles—against foreign policy by states, a practice that is inconsistent with even weak notions of union. A more significant innovation is the prohibition on the coinage of money and the use of paper currency (bills of credit). Such activities, he believes, can be carried out responsibly only by the national government, a conviction that, one trusts, would be shaken to its foundation were he alive today. His disquisition on the perils from profligate printing of paper money is illuminating:

“The loss which America has sustained since the peace, from the pestilent effects of paper money on the necessary confidence between man and man; on the necessary confidence in the public councils; on the industry and morals of the people, and on the character of republican government, constitutes an enormous debt against the states ….”

Why he believes that the federal government would be less scandalously addicted to easy money policies than states such as Rhode Island is difficult to fathom, and he undertakes no explanation. Presumably, he places his faith in the contest of interest groups spread throughout the large republic, especially debtors versus creditors, that would limit the likelihood of an extended “rage for paper money” that he condemned in Federalist 10. If so, he misjudges the effect on spending from “log-rolling,” “earmarks,” and patronage fostered by special interest groups and guarded by entrenched Congressional barons. Even if these factions were unlikely to influence the federal government individually, they quickly learned to act in concert, a habit that the pragmatic Framers either were derelict in ignoring or believed might be controlled through constitutional structures.

His explanation for the prohibitions of bills of attainder (legislative decrees of criminal guilt against an individual or group that were routinely used against political opponents in 16th and 17th century England) and of ex post facto laws (laws that retroactively criminalize conduct), as well as of laws that impair the obligation of contracts, is instructive. The last clause arose from experience with the practice by states to cancel public and private debts (at first those owed to British subjects, but later also obligations owed to American creditors) and to meddle otherwise in vested contract rights. A contentious topic at the Convention, Madison justifies the “contracts clause” as needed to combat economic distortions and social disturbance caused by persons seeking government support for their economic schemes: “[The people] very rightly infer, therefore, that some thorough reform is wanting, which will banish speculations on public measures, inspire a general prudence and industry, and give a regular course to the business of society.”

However, if such interferences with vested contracts were to originate in federal law, they would still be invalid. Like bills of attainder and ex post facto laws, they are so fundamentally destructive of security in one’s person and property, Madison writes, that they violate the “first principles of the [Lockean] social compact.” This raises an interesting point, one eventually taken up by the judiciary. If a constitution does not expressly address the legislature’s power to abridge a particular personal right, does that silence permit the legislature to limit that right? Or are there extra-constitutional limits on the discretion of the political majority, beyond those expressly enumerated in that constitution?

If appeal may be made to such extra-constitutional principles in political debate to prevent adoption of a law (which surely may be done), will such an appeal also lie in a judicial proceeding to declare the law unconstitutional once it is adopted (a much more dubious proposition)? If the answer to the last point is affirmative, exactly what principles may be considered, and how would the judge know? “First principles of the social contract” flows easily from the pen of the writer and the lips of the orator, but it is freighted with assumptions and epistemological uncertainties. Judges are chosen for their knowledge of the law, not their “wisdom” as political or moral philosophers, notwithstanding any contrary assertion by the occasional Supreme Court nominee.

Are same-sex marriage, polygamy, suicide, or abortion part of such “first principles”? We can be fairly certain of what Publius would have said. What about the right to pursue a calling or to run a business without a myriad of labor, environmental, and other regulations that dull initiative? The response of the Framers in 1780s republican mode (not in the then just-emerging “classic liberal” mode) might be surprisingly equivocating.

The second class of grants to Congress discussed in Federalist 44 includes the necessary and proper clause and the supremacy clause, topics already addressed by Hamilton in Federalist 33. The examination of the necessary and proper clause is a preview of the famous McCulloch v. Maryland case in 1819, considered by many the Supreme Court opinion with the greatest impact on American politics. The initial issue in McCulloch was Congress’s power to charter the Second Bank of the United States, a controversy that had begun even during the Articles with the debate over Robert Morris’s Bank of North America and persisted through the wrangling in George Washington’s cabinet in 1791 over Hamilton’s proposal for the First Bank of the United States.

Congress has no express power to charter corporations or banks. Echoing Publius, Chief Justice Marshall noted in McCulloch that every power to accomplish an end carries with it, by necessary implication, the power to adopt the means to achieve it. This is a fundamental principle of agency law, and Congress has been delegated certain tasks by the people. It is also an inherent aspect of government. But there is a flaw. The Constitution is not silent about those means.

Luther Martin, Maryland’s wily attorney general in McCulloch, argued instead that the necessary and proper clause provides an express definition of the means to be employed, thereby negating any theory of implied powers. He then claimed that “necessary and proper” requires a showing of indispensability. Marshall disagreed, ruling that “necessary” meant “convenient” or “appropriate.” His interpretation vastly expanded the constitutional discretion for Congressional action. In light of that ruling it is noteworthy that Madison describes the power conferred under that clause as “indispensably necessary” and equates this to those means that are “requisite,” which the dictionary defines as “essential.” One is left to speculate whether the role of the national government might be different today, had Martin’s—and, apparently, Madison’s—more restrictive definition prevailed.

Monday, June 28th, 2010

An expert on constitutional law, Prof. 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.  Prof. Knipprath has also spoken on business law and contemporary constitutional issues before professional and community forums.  His website is http://www.tokenconservative.com.

 

Guest Essayist: Joerg Knipprath, Professor of Law at Southwestern Law School

Having examined various powers granted to Congress, Madison in Federalist 45 invites the audience to step back from the particular tiles to gaze at the whole mosaic of the Constitution. But, is he presenting the creation from a proper angle? Or, is the Constitution modern art, where the meaning is created by the viewer? One certainly gets that sense reading some Supreme Court justices’ opinions.

Madison’s conclusion that even the mass of federal powers will not be dangerous to the authority left in the several states is astonishing from our vantage in the light of experience, but understandable from his. He discounts “the supposition, that the operation of the federal government will by degrees prove fatal to the state governments….I am persuaded that the balance is much more likely to be disturbed by the preponderancy of the last than of the first….” He grounds his judgment on four supports, loyalty from the people to the more local government; states as critical constituent parts of the national government but not the reverse; fewer federal bureaucrats than state officials; and the limited number and scope of federal powers.

As to the first, loyalty to local government may indeed be more natural. But such loyalty depends on personal relationships and bonds of community, a concept that has limits. In the 1790 census, the largest city, New York, had 33,000 inhabitants. There were only five cities with more than 10,000 inhabitants. Today, the average Congressional district has nearly 700,000 residents, almost the 1790 population of Virginia, by far the largest state then. Under classic republicanism, the size of political community is a key factor for its success. Aristotle postulated that the citizens “be of such a number that they know each other’s personal qualities and thus can elect their officials and judge their fellows in a court of law sensibly.” Plato fixed the ideal number of citizens at 5040 adult males, or about 30,000 to 50,000 residents if women, children, aliens, and slaves are included. Perhaps not coincidentally, the Constitution fixed the initial size of Congressional districts at 30,000 residents, a number that Federalist 57 asserts would produce about five or six thousand voters.

When today’s average state assembly district in California is larger than all but one of the states in the union in 1790, the notion of community with its interacting social, religious, economic, and political relationships has long since been stretched beyond reality. Basing loyalty to governments, local or national, on distinctions between current orders of representational magnitude is doomed to fail. They lie beyond the easy grasp of human comprehension. Everyone understands the difference between ten dollars and a thousand dollars. But the difference between ten billion and a trillion dollars is the difference between a lot and a lot more, too abstract to be meaningful, though the difference in each set between the larger and the smaller amount is of the same order of magnitude. Distinctions of loyalty to government on that scale become impossible, too, at least in the sense of the civic republicanism that Madison treasures. Loyalty becomes an abstraction, not a republican reality that affects our concrete actions.

Regarding the second point, the states indeed are critical components of the federal structure but not vice versa, just as he describes (excepting the election of Senators). But there is a great difference between the formal structure and the political reality. The Framers failed to anticipate the growth of modern political parties. Those parties have taken on much of the role Madison assigns to the states in influencing the selection of federal officials. Thus, the latter are far more independent of state officials than Madison asserts.

Conversely, it is true that the federal government has no direct formal role in the selection of local officials, though the Supreme Court’s reapportionment decisions and U.S. Department of Justice supervision of local elections under the Voting Rights Act throw even that in doubt. As a matter of policy, however, state and local officials are increasingly dependent on federal officials and agencies. One need only recall, among many examples, the state officials deploying, hat in hand, to Washington for federal money to cover state budget deficits (caused in part by heavy federal taxation that dries up sources for state revenues); the aftermath of Hurricane Katrina where state and local officials waited, figuratively paralyzed, for federal rescue; and California state officials’ generally unsuccessful pleading with members of Congress and federal agencies to divert enough water from protecting the habitat of the Delta Smelt bait fish to allow tens of thousands of farmers to make a living.

Not much need be said about Madison’s point that the far lower number of federal officials than state or local officials would preserve greater influence for the latter. It is particularly unfortunate that he seeks to assure the reader by stating that for every federal tax collector in a district there would be thirty or forty state bureaucrats. Judged by the size of government budgets as a portion of Gross Domestic Product, it is true that the state and local governments take up nearly as much as does the national government. But all have metastasized, with state and local spending in the last century going from 5% to 20% of GDP, and federal outlays increasing by an order of magnitude from 2.5% to 25%. This looks more like the “multitude of New Offices” created, and the “swarms of Officers [sent] to harass our people and eat out their substance,” about which Americans fulminated against King George in the Declaration of Independence.

Madison’s final point about the respective functions of the different governments also has not turned out as envisioned. True, the federal government still attends to the matters he describes, and the states control most ordinary matters that affect people’s lives. The rub is in the ever more intrusive role the federal government is assuming in matters that also affect one’s daily life. The health care reform debate, the news reports about the parlous fiscal state of numerous other social programs, and the parade of additional planned regulations, are too vivid and recent to require recounting in detail.

Madison is too serious a political thinker to be accused of flimflam. Though one has one’s doubts about Hamilton, most Federalists likely believed genuinely that the opponents were unduly alarmist in their visions of an increasingly dominant national government. Regrettably, political history, especially during the last eighty years, has not placed the constitutional mosaic laid out in Federalist 45 in a flattering light.

Tuesday, June 29th, 2010

An expert on constitutional law, Prof. 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.  Prof. Knipprath has also spoken on business law and contemporary constitutional issues before professional and community forums.  His website is http://www.tokenconservative.com.

 

Guest Essayist: David B. Kopel, Research Director at the Independence Institute, and Adjunct Professor of Advanced Constitutional Law at Denver University, Sturm College of Law

Federalist 46 continues Madison’s arguments that the federal government could never dominate or obliterate the states. He sketches out possible scenarios of federal over-reaching, and explains why the states would prevail in every case. Addressing the worst-case scenario, Madison assures his readers that a tyrannical President with a powerful army could never impose his rule on America, because the entire American population possesses firearms.

Federalist 46 is important today because it is instructive about the right to keep and bear arms as the ultimate safeguard of civic freedom, and because of the growing trend of state resistance to the federal exercise power on intrastate activities, such as the use of medical marijuana, or other health care choices.

Madison begins by reminding readers of first principles. The federal and state governments are both servants of the same master—namely the people. Opponents of the Constitution act as if the federal and state governments were uncontrollable entities who would be at war with each other. To the contrary, both governments are mere agents of the people, who are the supreme controlling power. The people choose to use their federal and state agents for different purposes. So there is no reason to think that the people will allow their two agents to fight with each other, or to interfere with each other.

The people, who are the ultimate deciders, will be much more attached to the state governments, Madison predicts. For one thing, there will be many more state employees than federal employees. Not only the individual employees, but their family, friends, social networks, and so on, will therefore inevitably have more affection for their close-at-hand state employer than the distant, small federal government.

Madison’s prediction is still true. Beginning with New Deal, the federal government began to grow enormously, but state and local governments also grew rapidly. As of 2008-2009, there were about 3.8 million state government employees, plus 11 million local government employees.  This compares to 2.8 million federal civilian employees, plus approximately 1.5 million active duty U.S. military. So today, the number of state/local employees outnumbers federal employees by about 4:1. To the extent that employment promotes loyalty, Madison remains generally right that the states have the advantage.

Then there’s practical experience. Madison reminds his readers that even when the Continental Congress was fighting the Revolutionary War, a task of supreme importance to everyone’s freedom, people generally liked their state governments better. Except for a brief period early in the war, the national government was at “no time the idol of popular favor; and that opposition to proposed enlargements of its powers and importance was the side usually taken by the men who wished to build their political consequence on the prepossessions of their fellow-citizens.”

But from Teddy Roosevelt to Barack Obama, many Presidents over the last century have worked assiduously to build an idolatrous cult of personality  around themselves. Over the last century, some men—including Calvin Coolidge and Ronald Reagan–have led successful political careers by resisting proposed enlargements of federal power. But many more politicians have built careers by promising that the federal government will do ever-more in taking care of the American people as a de facto parent.

Given the advantages currently possessed the by state governments, Madison continues, the people would only transfer their loyalty to the federal government if the federal government were manifestly better and more capable. And if so, there’s nothing wrong with the people giving their confidence where it is most due. Even then, the states would have little to fear, “because it is only within a certain sphere that the federal power can, in the nature of things, be advantageously administered.”

The nineteen-sixties were a time when Madison’s prediction about a transfer of affections proved prescient. At the time, the federal government was indeed far more competent and vigorous, and far less corrupt, than many state governments. National trust in the federal government rose to levels never since achieved. One reason for post-sixties decline is that as the federal government has tried to do almost everything, it has become less competent at carrying out its core functions. As Madison knew, only with a certain sphere can federal power be advantageously administered.

Another power advantage of the states is that persons who are elected to serve in the federal government will still retain some disposition towards particular state and local interests. In contrast, hardly any state or local officials will have a bias to favor federal interests over state and local interests.

Absolutely true, to this very day.

Suppose one side or the other goes too far? Again, Madison writes, the advantage lies with the states. If a state is inclined to infringe on the federal sphere, the state actions would presumably be popular with the people of the state, and would immediately be carried into effect by the state government employees. The federal government would have no practical means to overcome the states, except by the use of force, which would always be viewed with reluctance.

Conversely, if the federal government goes too far, the state’s people and government would refuse to cooperate, and could obstruct federal actions. If a large, resistant state were joined by its neighbors, it would be nearly impossible for the federal government to prevail.

This analysis proved accurate for a long time. Whether in a good cause (such as resisting federal implementation of the Fugitive Slave Act) or in a bad cause (resisting the Supreme Court’s desegregation orders from Brown v. Board of Education), state governments with strong popular support have often been able to frustrate locally-unpopular exercises of federal power.

But one major change upset the Madisonian balance. In the 1936 case United States v. Butler,  the Supreme Court said that Congress could use its spending powers for purposes that had nothing to do with the enumerated powers which had been granted to Congress (such as the power to raise armies, set up post offices, and so on). Accordingly, Congress quickly started doling out money to state governments.

The result was to make the state governments into de facto wards of their federal sugar daddy. Whenever Congress tugged the purse strings, the states danced.

So Southern state government resistance to school desegregation did not end because of a few instances in which the President sent in federal troops to enforce court orders. As Madison expected use of military force was still a last resort. Formal southern resistance ended when Congress’s Civil Rights Act of 1964 cut off federal education money to segregated schools. A good result, although not all subsequent federal threats of withholding money would be for such benign purposes.

What about a worst-case scenario, in which a federal tyrant attempted to use the federal standing army to impose a national dictatorship? Madison derided the possibility, since the people would never consent to the long-term build-up of a powerful military establishment. Here, Madison was correct for about a century and a half. After the Civil War and World War I, the large federal military was quickly demobilized, and the standing army shrunk to a size appropriate for a mid-level European power, or less.

But the aftermath of World War II did not go as planned. The Soviet Union, rather than becoming a global partner in peace and stability, emerged as an aggressive superpower intent on taking over wherever possible, and seeking the ultimate destruction of the United States. In the resulting Cold War, the United States by necessity grew used to a large, permanent standing army.

Madison continued his hypothetical: the largest possible federal army could not constitute more than one percent of the total population. This is indeed the size of the current federal military, counting active duty plus reserves. But with conscription, the federal army could be much larger than that. In 1945, the U.S. military constituted 6% of the total population. (8 of 132 million.) Today, that would mean a military of about 18 million.

Against this federal army, Madison said, would be essentially the entire able-bodied male population, with their own guns, and organized into militias directed by the state governments. This huge force could never be conquered by the much smaller federal army:

To these [federal soldiers] would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence. It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops.

The crucial reason why America was free and Europe was not that Americans had guns and state governments. The combination of the two would be sufficient to demolish any national tyrant:

Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of. Notwithstanding the military establishments in the several kingdoms of Europe, which are carried as far as the public resources will bear, the governments are afraid to trust the people with arms. And it is not certain, that with this aid alone they would not be able to shake off their yokes. But were the people to possess the additional advantages of local governments chosen by themselves, who could collect the national will and direct the national force, and of officers appointed out of the militia, by these governments, and attached both to them and to the militia, it may be affirmed with the greatest assurance, that the throne of every tyranny in Europe would be speedily overturned in spite of the legions which surround it.

Fortunately, we have never had to see whether Madison was right that a federal tyrant with a standing army could be defeated by the people. We do know that in other places (e.g., Israel fighting for independence from Great Britain in 1946-47) armed popular forces have been able to drive out very strong armies. Of course the modern availability of nuclear weapons would give an American tyrant weapons which armed civilians could never defeat. But the use of nuclear weapons against Americans might well cause an outraged U.S. military to depose the tyrant itself.

In any case, we do know that Madison was right then and now about “the advantage of being armed, which the Americans possess over the people of almost every other nation.” In the twentieth century, monsters such as Hitler, Stalin, Mao, and Pol Pot took advantage of victim disarmament in order to murder millions.

Federalist 46 also shows the error of the notion that James Madison, the author of the Second Amendment, imagined that any individual could decide that the federal government was tyrannical, and then resort to violence. To the contrary, Madison envisioned that, in the very unlikely event that forcible resistance were necessary, it would be led by the states. Federalist 46 is an important corrective to persons (including gun prohibitionists who like to conjure up extreme scenarios) who imagine that a strong interpretation of the Second Amendment must lead to the legal authorization of anti-government violence by stray individuals.

Madison has been proven correct in regarding mass national armed resistance to federal tyranny as a very unlikely possibility. He was also right in a much broader sense, in that the American system of federalism, which many powers retained by state governments, and the American gun culture, with its associated spirit of self-reliance and responsibility, have helped form the freedom-loving American national character which has prevented the federal government from degenerating into despotism.

Wednesday, June 30th, 2010

David B. Kopel is Research Director at the Independence Institute, in Colorado, and is Adjunct Professor of Advanced Constitutional Law at Denver University, Sturm College of Law. www.davekopel.org

 

Guest Essayist: John S. Baker, Dale E. Bennett Professor of Law at Louisiana State University

Although mentioned in previous essays, Publius formally began to address separation of powers in Federalist # 47.  Together with ## 48 and 51, #47 explained the unique understanding of that principle as built into the Constitution. The Federalists and Anti-Federalists agreed that separation of powers was essential to liberty, but disagreed on what that required in a constitution. Unfortunately, over the last century, the term “separation of powers” has almost disappeared from the civic vocabulary in the United States and been replaced by the term “checks and balances,” a term with an overlapping, but different meaning.

Federalist #47 affirmed the principle upon which the Federalists and Anti-Federalists agreed: “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”  Thus, the Founders did not believe that voting alone guaranteed liberty.

It must come as a surprise to many Americans to learn that the Federalists and Anti-Federalists emphasized separation of powers as an absolutely essential guarantee of liberty.  For many — if not most – Americans, the protection of liberty is primarily accomplished through the Bill of Rights.  The Federalist and Anti-Federalists agreed on the need for separation of powers, but not for a bill of rights. The Anti-Federalists criticized the proposed Constitution for a lack of a bill of rights, but the Federalists actually contended “that bills of rights, in the sense and to the extent they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous.” Federalist #84.

Instead of mere “parchment barriers,” i.e. paper protections, the Framers presented a “well constructed Union.” Federalist ## 10 and 39 laid out the plan and purpose of the extended, (con)federal republic. Without separation of powers, however, that structure would have been insufficient to prevent the consolidation of power in the central government.  Both parts of the structure came under attack as contrary to fundamental principles of liberty. In #39, Publius admitted that if the plan of the Constitution actually did depart from the republican principle, it would be indefensible. He did likewise in #47, admitting that if the Constitution ”really [were] chargeable with this dangerous tendency to such an accumulation, or with a mixture of powers, having a dangerous tendency to such an accumulation, no further arguments would be necessary to inspire a universal reprobation of the system.”.

For separation of powers, as for the extended confederate republic, see Federalist # 9, Montesquieu was the authority appealed to by both Federalists and Anti-Federalists.  As with the extended (con)federal republic, Publius explained in # 47 that the claim that the Constitution violates the principle of separation of powers is mistaken.  Montesquieu relied on his understanding of the British Constitution to explain separation of powers.  Publius correctly observed that in the British Constitution “the legislative, executive, and judiciary departments, are by no means totally separate and distinct from each other.” Indeed, the British Constitution actually involved a “checks and balances” system, rather than one of separation of powers as understood by both the Federalists and Anti-Federalists.  That is to say, separation of powers as understood by Montesquieu and the Founders included a separate, co-equal judiciary.  Under the British (unwritten) Constitution, the judiciary has never been a separate, co-equal branch of government. Rather, at the time of our Founding, the British government involved a traditional governing system in which the one (the king), the few (the House of Lords), and the many (the House of Commons) checked and balanced each other.

Publius concluded that Montesquieu “did not mean that these departments ought to have no partial agency or no control over the acts of each other.”  (emphasis in the original) Rather, he said Montesquieu’s meaning “can amount to no more than this, that where the whole power of one department is exercised by the same hands which possess the whole power of another department, the fundamental principles of a free constitution are subverted.” (emphasis in the original).  He demonstrated the point by examining aspects of the British constitution, Montesquieu’s model.

Publius then considered the state constitutions.  He noted “that, notwithstanding the emphatical, and some instances, the unqualified terms in which this axiom has been laid down, there is not a single instance in which the several departments of power have been kept absolutely separate and distinct.” He addressed the constitutions of all but two of the states and quoted the “emphatical” language from a couple of them. While looking at the state constitutions in order to rebut the charge that the proposed Constitution violates separation of powers, Publius was not indicating that the state constitutions are an appropriate model for the new Constitution.

The last paragraph of #47 opened, stating “I wish not to be regarded as an advocate for the particular organizations of the several state governments.”  Indeed, the Framers created a government radically different from that of the state constitutions. In part, the differences were due to the fact of the federal constitution being one of limited powers, while the state constitutions have more general powers. In addition, however, the form of separation of powers in the federal Constitution differed significantly from that of the states.

In distancing himself from the state constitutions, Publius attempted to avoid giving offense by first offering a modicum of praise and an excuse for their deficiencies.  (“I am fully aware, that among the many excellent principles which they exemplify, they carry the strong marks of the haste, and still stronger of the inexperience, under which they were framed.). Nevertheless, Publius was clear that the state constitutions provided for separation of powers “on paper,” but not “in practice.” (“It is but too obvious, that, in some instances, the fundamental principle under consideration, has been violated by too great a mixture, and even an actual consolidation of the different powers; and in no instance has a competent provision been made for maintaining in practice the separation delineated on paper.”)

Thursday, July 1st, 2010

Professor John S. Baker is the Dale E. Bennett Professor of Law at Louisiana State University.

Guest Essayist: John S. Baker, Jr. the Dale E. Bennett Professor of Law at Louisiana State University

The states had strict separation of powers in theory, but a dangerous mixture of powers in practice. Taking the opposite approach, Publius undertook “to show, that unless these departments be so far connected and blended, as to give each a constitutional control over the others, the degree of separation which the maxim requires as essential to a free government, can never in practice be duly maintained.”  Theory guided writing of the Constitution; but the text itself is a practical — not a theoretical — document.  As  Federalist #48 states, “After discriminating, therefore, in theory, the several classes of power, as they may be in their nature be legislative, executive, or judiciary; the next, and most difficult task, is to provided some practical security for each, against the invasion of the others.”

The Constitution does not even mention the term “separation of powers.” Rather, the constitutional text formally establishes separation of powers by setting out the powers of each branch in a separate article: Article I (“All legislative Powers herein granted shall be vested in a Congress”); Article II (“The executive Power shall be vested in a President”); and Article III ( “The judicial Power of the United States, shall be vested in one supreme Court and such inferior Courts as Congress may from time to time ordain and establish.”).  Omitting the term “separation of powers,” into which different persons — especially lawyers — might pour their own meanings, the Constitution instead implants into the text the elements of separation of powers necessary to make it operate in practice, e.g. the President’s qualified veto power.

Rather than “the parchment barriers” on which the state constitutions “principally relied,” the Framers consulted experience and concluded “that some more adequate defence is indispensably necessary for the more feeble, against the more powerful members of the government.”  In other words, because the three branches are not naturally equal, simply separating them will not protect the weaker branches.           Experience has shown that the legislative branch will dominate the other two. According to Publius, “The legislative department is every where extending the sphere of its activity, and drawing all power into its impetuous vortex.” It may seem surprising to many Americans that the Framers considered the legislative branch to be the most dangerous. Such an attitude is nothing new because it was prevalent at the time of the Constitution’s adoption. As Publius observed, “founders of our republics,,,,seem never to have recollected the danger from legislative usurpations, which, by assembling all power in the same hands, must lead to the same tyranny as is threatened by executive usurpations.”

Then and today, there are those who view the President as the greatest danger to liberty.  “But in a representative republic,” Publius writes, “the executive magistracy is carefully limited, both in the extent and duration of its power.” Compared to Congress, the President may appear to be more powerful due to the unitary character of the Presidency.  Later, in Federalist 70, 73, and 74, Publius explains the unitary executive as a protection of the liberty, particularly in time of war.

Publius tells us “where the legislative power is exercised by an assembly, which is inspired by a supposed influence over the people, with an intrepid confidence in its own strength; which is sufficiently numerous to feel all the passions which actuate a multitude; yet not so numerous as to be incapable of pursuing the objects of its passions, by means which reason prescribes; it is against the enterprising ambition of this department, that the people ought to indulge all their jeolousy, and exhaust all their precaustions.. (emphasis added).

If today the President seems to have more power than the Constitution, it can only be because the Congress has delegated that power and, in most instances, the Supreme Court has upheld those delegations. Since the 1930’s, the three branches of the federal government have generally cooperated in building “the Administrative State,” dominated by bureaucratic agencies.  While apparently building the President’s power, however, the Congress has 1) avoided accountability and 2) disguised in its de facto influence over executive agencies. Driving this consolidation of power is an opposition to separation of powers.

The Administrative State incorporates certain “checks and balances,” which as discussed in the last essay differs from separation of powers.  Federalist #9, which refers to “legislative balances and checks,” indicates that the term “checks and balances” has a different historical meaning.  The Constitution’s version of separation of powers does include a checking function of each branch on the other. Federalist 48 explains the concern to give checking powers to the weaker branches, i.e., the President and the Judiciary.  The Administrative State has grown because the Supreme Court has approved legislation giving Congress additional checking powers against the President, thereby weakening the Executive Branch. Congress, for example, has created so-called “independent agencies,” which are independent of the President’s control, but under the de facto control of Congress’s power over agency budgets.

Congress’s enhancement of its own powers through the Administrative State confirms the observations in Federalist 48 about the deviousness of legislative bodies. “The legislative department derives a superiority in our governments [because] [i]ts constitutional powers being at once more extensive, and less susceptible of precise limits, it can, with the greater facility, mask under complicated and indirect measures, the encroachments which it makes on the co-ordinate departments.” (emphasis added).

Publius’s indictment of legislative bodies drew “on our own experience.”  The Virginia constitution, for example, required separation of powers; but as Jefferson wrote in his “Notes on the state of Virginia,” quoted by Federalist 48, “no barrier was provided between these several powers.” Publius approved Jefferson’s remark that “An elective despotism was not the government we fought for.”

Federalist 48 concluded “that a mere demarcation on parchment of the constitutional limits of the several departments, is not a sufficient guard against those encroachments which lead to a tyrannical concentration of all the powers of government in the same hands.”

Friday, July 2nd, 2010

John S. Baker, Jr. is the Dale E. Bennett Professor of Law at Louisiana State University.

 

Guest Essayist: Colleen Sheehan, Professor of Political Science at Villanova University and Director of the Matthew J. Ryan Center for the Study of Free Institutions and the Public Good

James Madison wrote Federalist 49 in part as a response to Thomas Jefferson’s idea that a constitutional convention should be called whenever one of the departments of government oversteps its delegated constitutional authority.

Madison argued that this was a bad idea for five reasons:  1) the proposal doesn’t cover the case in which two departments combine against a third  2) routinely involving the people in rewriting the Constitution would reduce the veneration the citizens have for their laws and government, thereby destabilizing the polity  3) frequent appeals to the people’s fundamental authority would excite their passions and disturb public tranquility  4) if the usurpation of power was instigated by the legislative branch (which is the most likely scenario), it is probably these same men who would be elected by the people to the convention, since they are the public figures most familiar to the people – that is, they have the best name recognition and the most influence, which is how they got elected in the first place  5) if the people didn’t choose their legislators to attend the convention – perhaps because the usurpation of power by some of them was so flagrant – the choice of convention delegates would nonetheless be conducted in a turbulent atmosphere of partisan politics.

In the last case, Madison argued, it would be “the passions, therefore, not the reason, of the public [that] would sit in judgment.”  But this is the exact opposite of how good popular government should work.  According to Madison, in a well-constructed republic the passions of the public will be controlled and regulated by the government; in turn, the government will be controlled and regulated by the reason of the public.

It is important not to misconstrue Madison’s argument against frequent appeals to the people in this essay.  He opposed frequent appeals to the people in their most sovereign capacity – which is what constitutional conventions represent. His claim is that convening a convention to change the Constitution every time there is an abuse of power by politicians is not the best or even, generally, a smart solution.  Given that Madison was already a seasoned political leader (albeit only 36 years old) and a realist about human nature, he knew that this would mean a lot of conventions!  He also knew that asking the people to reconsider and revise fundamental law on a chronic basis would agitate and destabilize public opinion, which is the very foundation of government and the effective rule of law.

It is important to note that Madison did not argue for a blanket rejection of an appeal to the fundamental authority of the people; indeed, he insisted that a path to constitutional change must be kept open to the people, to be tread on extraordinary occasions.  This is of course the purpose of Article V of the U.S. Constitution, which establishes the constitutional amendment process. Moreover, his discussion of reverence for the laws should not be interpreted to mean that the people ought to venerate rather than vigilantly watch over their government.  In fact, in Federalist 57 he will stress the importance of the vigilant spirit of the people in restraining government and safeguarding liberty.  In the 49th essay, however, Madison is warning his fellow citizens that we should not be unrealistic about the sway of reason in politics.  Since most people are not disinterested or dispassionate philosophers, he implies here what he teaches throughout The Federalist: the achievement of reasonable and just public decisions is going to take substantial time and the hard work of communication and public deliberation.  Essentially, Madison is saying, let’s be careful not to circumvent these speed bumps, which are constructed for our own safety.  Let’s not be impetuous and race headlong at a dangerous pace.  Slow and steady wins the republican race.

Colleen Sheehan is Professor of Political Science at Villanova University and Director of the Matthew J. Ryan Center for the Study of Free Institutions and the Public Good.

Monday, July 5th, 2010

Guest Essayist: Brion McClanahan, Ph.D., author of The Politically Incorrect Guide to the Founding Fathers

The authorship of Federalist No. 50 is disputed.  Whether it was James Madison or Alexander Hamilton, the author’s arguments have ramifications for our current political problems and, in many ways, exemplify the nature of the federal government under the Constitution.  Federalist No. 50 opens with the following premise: “IT MAY be contended, perhaps, that instead of OCCASIONAL appeals to the people, which are liable to the objections urged against them, PERIODICAL appeals are the proper and adequate means of PREVENTING AND CORRECTING INFRACTIONS OF THE CONSTITUTION.”  The key to the opening is the last capitalized phrase.  The author then proceeds to discuss how conventions called for the purpose of “correcting infractions of the constitution” would be neither productive nor “adequate” to remedy unconstitutional abuse of power by any branch of government.

The author used the State of Pennsylvania as an example to prove his premise.  Pennsylvania had a Council of Censors in the 1780s that was charged with the task of determining if the State constitution had been violated and if the executive or legislative body was at fault.  But most of the men who held a seat on the Council also served in either the executive or legislative branch and they often split into “two fixed and violent parties.”  Their conclusions were often clouded by passion and their decisions ignored by the State government.  The author concludes, “This censorial body, therefore, proves at the same time, by its researches, the existence of the disease, and by its example, the inefficacy of the remedy.”  States would always divide into groups, and even if the State tried to remedy the problem by appointing men who had not been connected with the constitutional issue at hand, the author argues that, “The important task would probably devolve on men, who, with inferior capacities, would in other respects be little better qualified. Although they might not have been personally concerned in the administration, and therefore not immediately agents in the measures to be examined, they would probably have been involved in the parties connected with these measures, and have been elected under their auspices.”

The author, of course, implied that an outside “referee” would be no better to check unconstitutional abuses of government than the “checks and balances” contained within the Constitution itself.  The Senate is a check on the executive; the executive is a check on the congress, and the Supreme Court a check on both. But the author failed to consider one of the principle arguments against the Constitution and the checks and balances system: what or who will check federal power if they have a monopoly on the “checks and balances” system?  That was the heart of the anti-federalist critique of the federal judiciary, for example.  Certainly, Federalist No. 50 was cogent and persuasive, and the amendment process was always showcased as a fail-proof method of altering the Constitution, but the anti-federalists had much to say on the subject.

One of the best arguments against Federalist No. 50 appeared almost four months earlier in the Philadelphia Independent Gazetteer.  The author, An Old Whig, contended that the amendment process as written would never produce beneficial changes to the Constitution.  He called the procedures for amending the Constitution a “labyrinth,” and thought that before the process was over, “ages will revolve, and perhaps the great principles upon which our late glorious revolution was founded, will be totally forgotten. If the principles of liberty are not firmly fixed and established in the present constitution, in vain may we hope for retrieving them hereafter. People once possessed of power are always loathe to part with it; and we shall never find two thirds of a Congress voting or proposing any thing which shall derogate from their own authority and importance, or agreeing to give back to the people any part of those privileges which they have once parted with….”  Perhaps the Old Whig was correct.  Only seventeen amendments have been added to the Constitution since the Bill of Rights were ratified in 1791, and in reality only two, the 11th and the 22nd, limited the power of the central government.  Others such as the 14th, 16th, and 17th, increased it exponentially.

Interestingly, if Madison was the author of Federalist No. 50, he reversed his position on the issue of an external “referee” less than ten years after the Constitution was ratified.  Both he and Thomas Jefferson argued in the Virginia and Kentucky Resolutions of 1798 and 1799 that the States could interpose their sovereignty or “nullify” an unconstitutional federal law.  The question was not which branch of government was a fault—both the executive and legislative branch would be culpable under this scenario because congress passed the law and the president signed it—but whether the “checks and balances” system actually worked.  The people of the States, the very people Federalist No. 50 impugned as inferior, would thus rule on federal authority.  If the president and the congress in concert can ignore the Constitution—national healthcare, the federal stimulus, the nationalization of the auto industry—and if the federal judiciary is, as it often has been, a rubber stamp for federal legislation, how can it be reasonably argued today that checks and balances work?  The anti-federalists warned against such logic, and Jefferson and Madison provided the tonic, Federalist No. 50 notwithstanding.

Brion McClanahan, Ph.D., is the author of The Politically Incorrect Guide to the Founding Fathers.  He currently teaches History at Chattahoochee Valley Community College in Phenix City, AL.

Tuesday, July 6th, 2010

Guest Essayist: Professor John S. Baker, Dale E. Bennett Professor of Law at Louisiana State University

Federalist #51 is the most important of the essays in The Federalist, after #10. It completes the discussion of the general structure of the Constitution before Publius turns to a consideration of its particular elements. It ties together the main points of the previous essays.

Federalist #47 and #48 outlines the challenge of keeping the departments of government within their proper bounds; then Federalist #49 and #50 considers and rejects the suggestion of occasional or regular appeals to the people for that purpose.  Federalist #51, therefore, begins with the question: “To what expedient then shall we finally resort, for maintaining in practice the necessary partition of power among the several departments, as laid down in the constitution?”

Importantly, the answer is NOT a bill of rights! Rather, Publius writes, “[t]he only answer that can be given is, that as all these exterior provisions are found to be inadequate, the defect must be supplied by so contriving the interior structure of government, as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places.” (emphasis added).

As elsewhere, the analysis of the problem and the solution rest on an understanding of human nature. Each department must have a “will of its own,” which requires having “the means and personal motives” to defend its powers. Why the emphasis on power rather than “the common good.”  Isn’t this just a cynical approach to government?  Publius explains that enlisting private interests to protect the public good is the only method actually of achieving the end of government, which is justice.

The “preservation of liberty” requires “that each department should have a will of its own and consequently should be so constituted, that the members of each should have as little agency as possible in the appointment of the members of the others.” Rigorous adherence to this principle “would require that all the appointments for the supreme executive, legislative, and judiciary magistracies, should be drawn from the same found of authority, the people, through channels having no communication with one another.” (emphasis added). The federal judiciary, in particular, does not meet this test.  Publius says this deviation is justified because the mode of choosing judges ought to be the one best designed to produce the peculiar qualifications required of judges. He also presciently observes, as so many later presidents have learned to their dismay, that lifetime appointments for judges “must soon destroy all sense of dependence on the authority [i.,e., the President] conferring them.”

This passage reminds us that a republic, as defined in Federalist #39, “derives all its powers directly or indirectly from the great body of the people.” The judiciary, along with the President and the Senate (prior to the 17th Amendment’s substitution of popular election for election by state legislatures), draws its powers “indirectly” from the people because judges are nominated by the President and confirmed by the Senate. The judiciary and the President — who is actually elected not by the people, but by the Electoral College — are both somewhat removed from the people and in need of protection from the legislative branch.  Thus, if as to their salaries they were “not independent of the legislature in this particular, their independence in every other, would be merely nominal.”

What follows are some of the most insightful and widely quoted observations about the relationship between human nature and government.  With so much packed into one paragraph, each thought deserves to be separated out for separate consideration.

  •        “the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department, the necessary constitutional means, and personal motives, to resist encroachments of the others.:
  •        “The provision for defence must in this, as in all other cases, be made commensurate to the danger of attack.”
  •        “Ambition must be made to counteract ambition.”
  •         “The interest of the man, must be connected with the constitutional rights of the place.”
  •        “It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature?”
  •         “If men were angels, no government would be necessary.  If angels were to govern men, neither external nor internal controls on government would be necessary.”
  •         “In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.”

The notion that, at its core, the Constitution is a structure to control the self-interested tendencies of both the people and those in government may be a new idea for many Americans.  To those who think that the citizenry and government require no restraint other than popular elections, Publius responds that “experience has taught mankind the necessity of auxiliary precautions.” The Constitution reflects the “policy of supplying, by opposite and rival interests, the defect of better motives.”

Federalist #51 then reiterates and extends the argument of Federalist #47 and #48 concerning legislative dominance and the practical implementation of separation of powers. Besides strengthening the weaker branches, Federalist #51 makes clear the need to weaken the legislative branch. “The remedy for this inconveniency is, to divide the legislature into different branches; and to render them, by different modes of election, and different principles of action, as little connected with each other, as the nature of their common functions, and their common dependence on the society, will admit.” That explains the phenomenon that even when the same party controls both houses of Congress, the two bodies nevertheless do not cooperate very well.

It is often said in the media that the American people want the branches of the Federal government to work together.  The Constitution, however, guarantees conflict among the branches and between the federal and state governments in order to protect the liberty of the people.  Federalist #51 emphasizes the Constitution’s “double security” of separation of powers and federalism.

In the compound republic of America, the power surrendered by the people, is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments.  Hence a double security arises to the rights of the people.  The different governments will control each other; at the same time that each will be controlled by itself.     Federalist #51 then ties the constitutional structure back to the fundamental argument of Federalist #10. For it is necessary “not only to guard the society against the oppression of its rulers; but to guard the one part of society against the injustice of the other part.”  The way to avoid the “oppressions of factious majorities” is a federal system which encourages the multiplication of factions.  As a result, in the United States, “a coalition of a majority of the whole society could seldom take place upon any other principles, than those of justice and the general good.”  Thus, change is intended to be difficult as demonstrated by the fact that legislation cannot pass simply on the basis of “the majority” in Congress. A vote in the House of Representatives reflects one majority and a vote in the Senate represents a different majority. So, too, the President, who represents yet another majority, has the opportunity to sign or veto legislation.

The original Constitution operates on the basis of producing a legislative consensus through conflict and compromise.  This reflects the Framers’ view that structured conflict among the departments of government, rather than simple majorities, is more likely to produce a just consensus protective of minority interests. In such a system, there must be less pretext also, to provide for the security of the [the minor party], by introducing into the government a will not dependent on the [majority]; or, in other words, a will independent of the society itself.” (emphasis added).

This structure of “double-security” has been changed in important ways. The initial addition of the Bill of Rights did not actually change the structure, as Madison explained it would not do so when he introduced the amendments for adoption by the first Congress.  The Bill of Rights applied to the federal government, not to the states. The post-Civil War amendments did immediately change federalism by abolishing slavery and imposing important and just limits on the states. Nevertheless, federalism remained largely in tact as long as states continued to have a direct voice within the federal government by virtue of the election of U.S. senators by their state legislatures. See Federalist #62. The Seventeenth Amendment, however, changed that by requiring popular election of senators. Not that long thereafter, the Supreme Court became much more deferential to Congress and less so to the states.

One of the effects of the Senate no longer representing the residual sovereignty of the states, see Federalist #62, has been that the Court has had a relatively free hand – and indeed encouragement from some in Congress – to erode federalism. While there have been struggles among its members over federalism, the Court certainly has affected federalism through the manner in which, through the Fourteenth Amendment, it has applied the Bill of Rights to the states. In the course of doing so, the Supreme Court has arguably become “a will independent of the society itself” as it tends to prefer the minor party as against the states.  As a result of these constitutional amendments and judicial interpretations, the states no longer offer much security against the federal government.

For Publius, “the enlargement of the orbit” through federalism (see Federalist #9 and #10) made republicanism possible.  The Anti-Federalists, on the contrary, argued that such a large country was incompatible with a self-governing republic and would grow into imperialism. Despite “contrary opinions,” Publius concluded “that the larger the society, provided it lie within a practicable sphere, the more duly capable it will be of self-government.” As Publius predicted, self-government has flourished in the United States because “happily for the republican cause, the practicable sphere may be carried to a very great extent, by a judicious modification and mixture of the federal principle.” Publius’s prediction, however, became a reality because predicated on the premise of the double-security of separation of powers and federalism.

Wednesday, July 7th, 2010

Professor John S. Baker is the Dale E. Bennett Professor of Law at Louisiana State University

 

Guest Essayist: Charles K. Rowley, Ph.D., Duncan Black Professor of Economics at George Mason University and General Director of The Locke Institute in Fairfax, Virginia

Let me commence this discussion with an important caveat.  There are two ways in which to evaluate the contributions of the Founding Fathers in drafting and pursuing the ratification of the various Articles and Sections of the United States Constitution.  The first way is by reference to the circumstances of the emerging nation and the knowledge available to the Founders.  The second way is by reference to the circumstances of our time and the accumulated knowledge that is now available.  I shall focus primarily on the first way, given the exigencies of space.

The Federalist, No. 52, written by Hamilton or Madison, explains and justifies Article I, Section 2 of the draft Constitution, with particular regard to the qualifications both of the electors and of those elected to the House of Representatives, and to the length of term for which the representatives were to be elected.  These are centrally important considerations for any Constitution that seeks to establish a Federal Government of strictly enumerated powers, to ensure that elected representatives will faithfully reflect the preferences of a majority of their constituents and yet will not be overly tempted to discriminate against vulnerable minorities.  If the People are to govern, then a suitable definition of the People, and how the People are to impact on government, is of crucial importance.

A key circumstance influencing the Convention was recognition that any shift from the existing Confederation to a new Federation inevitably constituted a fundamental challenge to States’ rights, and must be perceived as a threat to the less populous states.  In order to ratify the Constitution, those issues must be addressed effectively by PUBLIUS.

Naturally, therefore, PUBLIUS emphasized the good sense in requiring that the qualifications of the electors would be the same as those required by each State’s own Constitution for the most numerous branch of that State’s legislature.  Of course, this implied that electoral qualifications might vary across the several States.  Yet, individual States could not manipulate the suffrage by simple legislation to gain advantage in the House of Representatives.  If they engaged in high cost constitutional manipulation, they could do so only by imposing upon their own State legislature any inherent disadvantages of such a manipulation.

Inevitably, norms of the day governed the extent of the suffrage.  For the most part, only propertied male citizens qualified.  Non-citizens (which of course included slaves), male citizens without property, and women need not apply.  This restricted the electorate to some twenty-five percent of the adult population.  But remember that the United States was one of only two emerging democracies.  And Britain, albeit without the taint of slavery, similarly limited the suffrage at that time to a suitably-propertied male minority.

The qualifications of the representatives were a different matter.  They were much less clearly defined by the State Constitutions and more susceptible to uniformity.  PUBLIUS defended the proposal by the Convention that a representative must be at least of the age of twenty-five years, must have been seven years a citizen of the United States, must, at the time of the election, be an inhabitant of the State he was to represent, and, during the time of his service, must be in no office under the United States.  This left the door widely open to would-be candidates, including women and persons without property.  Of course, slaves could not be citizens and, therefore, were excluded from candidacy.

The Convention had decided that the House of Representatives should be composed of Members chosen every second year by the electorate.  This was a truly important judgment, defended by PUBLIUS.  The Founders were well aware of a British history, where monarchs not infrequently had failed to call Parliament for several years when threatened by its fractiousness towards their objectives.  So the regularity of the election would avoid any such deviance on the part of fractious States.  They were also aware that some long-lived parliaments had lost significant contact with their electors, and had culminated in widespread corruption and inefficiencies.

A two-year term was deemed appropriate, in that it would maintain a close linkage between individual representatives and the People without imposing an excessive urgency on their deliberations.  The Founders were not disposed to introduce direct democracy into the federal legislature, recognizing its high cost and limited effectiveness in a geographically dispersed country with a rapidly increasing population of potential voters.

With respect to the two-year term, my judgment is that the Founders were correct.  The House of Representatives would become the engine of the legislature and the Senate, with its six-year staggered terms, would become the brake, especially when transient passions were running high.  Sadly, the great expectations of the Founders regarding the linkage between the People and those that they elected to office would be disappointed.

The Founders failed to anticipate the emergence of powerful political parties that would demand loyalty from their members even when such loyalty conflicted with constituents’ interests.  They failed to anticipate the gerrymandering of districts that would provide incumbent re-election probabilities as high as in many dictatorships.  They failed to anticipate the growth of political action groups and other special interests that would flood political campaigns with funding designed to distort election results away from the interests of the People.  They failed to anticipate the willingness of the United States federal courts to loosen the strictly enumerated powers of the Federal Government by inappropriately redefining key Articles of the Constitution designed to limit the range of collective actions that might impact adversely upon the People.  These developments, however, were products of changing circumstances and advancing political acumen unavailable to the Founders in the dying years of the eighteenth century, and at the very beginning of a great experiment in constitutional republicanism.

Thursday, July 8th, 2010

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

 

 

Guest Essayist: Marc Lampkin, partner at Quinn Gillespie and graduate of Boston College Law School

In Federalist #53 James Madison continues a discussion about the description and operation of the United States House of Representatives. In particular his emphasis is targeted to the question of protecting liberty and ensuring electoral accountability through the use of the term for Members of the House of Representatives. Madison observes that there is a natural connection between electoral accountability and the liberty of the people.  The question is how often should the elections occur?  Madison mentions a prominent saying of the time which was “that where annual elections end, tyranny begins..” implying that regular election cycles particularly those that happen at least once a year were best to limit infringement of the liberty of the people.   Madison attempts to explain why the Federal Constitution provides for a 2 year cycle in the House of Representatives and why that length didn’t threaten the freedom of the American people.

Ironically most states have adopted the Federal model of a 2 year cycle for their legislatures.  But as Madison notes this ready embrace of the two year cycle was not always the case.  When he writes the most popular election cycle for legislatures was every 6 months with a few states having annual elections.  Notably Madison observes that South Carolina alone had 2 year cycles.

In any event it is Madison’s view that the specific timeline isn’t as important as the necessity of the elections themselves.  But he argues that the single most important talisman for liberty is the immutability of the charter that authorizes government.

Unlike the British system, Madison explains the Federal Constitution does not bestow unlimited power on the legislature to change and make laws and thus liberty is advantaged.  In contrast to the American model, governments that place nearly limitless power in their parliaments or legislatures like the British system must be on guard continuously for mechanisms whereby government tyranny can be checked. Madison points out, “The important distinction so well understood in America, between a Constitution established by the people and unalterable by the government, and a law established by the government and alterable by the government, seems to have been little understood and less observed in any other country.”

Madison contends that the American system is predicated on the supremacy of the American citizens and not on the legislature or the executive. In America Congressmen and Senators can’t change their term of office, swap their positions or take on executive or judicial powers.  But in Britain they can make these types of changes and according to Madison did.  As a result many political scientists of the day had settled on the yearly election for legislatures as a ways to keep the government accountable. But with the US Constitution which places specific limits on the government and can only be changed with the consent of the citizens, liberty is much more readily protected.

Next Madison turns to the specific question of why a 2 year cycle.  Perhaps surprisingly, Madison the practicing political scientist reveals himself.  It is Madison’s considered view that the two year cycle allows for greater professionalism on the part of the federal official than a shorter cycle might.  He comes to this conclusion by comparing the relative knowledge base that state legislators have assuming a one year election cycle.  Madison argues that they are capable of learning and addressing the issues of their own individual states within the year time frame.

If state legislators learn about the regulation of ports and appropriate levels of taxation for the own states within a year, assuming the federal government’s issues might add additional complexity and more deliberation at least another year between elections would be useful to ensure that the federal elected officials developed the competence and knowledge necessary to be conversant about the relevant issues they are responsible for.  In particular Madison singles out the critical issue of foreign affairs as an area that it would be useful for elected officials to address with some degree of skill.  Madison notes: “In regulating our own commerce he ought to be not only acquainted with the treaties between the United States and other nations, but also with the commercial policy and laws of other nations. He ought not to be altogether ignorant of the law of nations; for that, as far as it is a proper object of municipal legislation, is submitted to the federal government. And although the House of Representatives is not immediately to participate in foreign negotiations and arrangements, yet from the necessary connection between the several branches of public affairs, those particular branches will frequently deserve attention in the ordinary course of legislation, and will sometimes demand particular legislative sanction and co-operation.”

Wrapping up Madison mentions that the relative distances that elected members of the House would travel also augurs for a longer term of office.  And in another endorsement of the professionalization of Congress, Madison recognizes that over time members with superior talents will become members of long standing.  Thus unlike the careerism incumbent upon a system that rubber stamps the election of state assemblymen  “almost as a matter of course” the Constitution’s election system contemplates that talented and experienced legislators would be preferred so as to avoid “snares that may be laid for them.”

And finally in the event of election disputes a 2 year cycle will give Congress more time to adequately investigate and make an informed determination than might be possible with a shorter term.   Madison concludes: “All these considerations taken together warrant us in affirming, that biennial elections will be as useful to the affairs of the public as we have seen that they will be safe to the liberty of the people.”

Friday, July 9th, 2010

Marc Lampkin is a partner at Quinn Gillespie and is a graduate of Boston College Law School

 

Guest Essayist: Joerg Knipprath, Professor of Law at Southwestern Law School

Although the essay’s authorship has been disputed, I am following the broad consensus that Madison wrote it along with the rest of the papers about the organization of the House.

James Madison was a Southern slaveholder. But one might never have surmised that from the curiously detached tone that Publius affects in Federalist 54 in talking about what “our southern brethren [might] observe” and “the reasoning which an advocate for the southern interests might employ,” which argument nevertheless “reconciles me to the scale of representation” adopted. Madison is recorded as having ambivalent feelings about slavery, but, then, most of the Southern elite did, judging by the moral handwringing that runs through many speeches and writings on the issue at the time. One need only look at Jefferson’s thoughts expressed in his Notes on the State of Virginia. The language used on such occasions was so similar that it has led the historian Forrest McDonald to opine that slaveowners developed a nearly rote disclaimer to cleanse the conscience before proceeding to whatever topic was truly at hand.

That said, Madison at least mentions the distasteful “s-word” in Federalist 54, an appellation that the Convention tied itself into euphemistic knots to avoid writing into the Constitution, as he delves into the connections among taxation, representation, and slavery. The first two, taxation and representation, have a long and pronounced relationship in Anglo-American political history and constitutional theory. The movement for independence from the British crown is tied to them through the motto “No taxation without representation” and the events that gave rise to it.

Taxation was seen by Englishmen, as well as Americans, as particularly threatening to individuals’ liberty. By having the potential to reduce people to penury and dependence, and because taking other people’s money for one’s own benefit is an especially strong temptation that mere mortals (even more so, political actors) find difficult to resist, taxation must be done only by consent of those taxed. English constitutional theory stylized this consent into representing a “gift from the commons,” as no one could be forced to share his wealth with others. Note that this applied to direct taxes on one’s person and wealth, not necessarily to indirect levies on voluntary transactions, such as duties on imports or excises on sales of goods. This class-based constitutional theory, made concrete against the King over three centuries, allowed the House of Commons (the only practical repository of popular consent) to bind the commons to pay taxes. The theory reflected the idea that the commoners were represented in the House as a class.

The Americans agreed with the English theory that consent was needed for a constitutional tax. They disagreed with the English theory of virtual representation, which held that the Americans were represented in Parliament as part of the body of commoners. Americans subscribed to a more concrete theory of direct constituent representation, that one was represented by another for whom one had a chance to vote, or at least in whose designated geographic domain one lived.

Recall that “representation” is a crucial aspect of American republicanism. In Federalist 10, Madison exalts representation as the republican principle that ties together the large geographic polity that is the United States without turning it into a tyranny. At the same time, representation, activated by the other republican principle, the vote, protects the political majority from falling victim to an entrenched oligarchy, while also protecting political minorities to some extent from the passing passions of an aroused majority.

But some aspects of republican theory are in tension with slavery—though clearly not in practice through the ages. Tying direct taxes, which reflect wealth and are assessed on the basis of the states’ populations, to representation is easy. Adding slavery to the mix threatens the symbiosis. Slaves are property, that is, wealth. But they are also manifestly human beings.

Direct taxes were imposed on the basis of population, not assessed land values, facts that are not definitively causally related. That could distort the burdens between different states, as Madison recognizes. States with less or poorer land but higher population densities (mostly in the North) would bear a burden proportionately greater than their opposites (mostly in the South). True, most Northern states permitted slavery at the time. The “peculiar institution” (under developing Anglo-American jurisprudence, slavery was not “natural” and could only exist under the peculiar positive enactments of a polity) was much more entrenched and extensive in the South, however.

The political conundrum, as Madison explains, was that the slave interests wanted to include slaves for purposes of representation. Northerners, already fearful that their region would lose relative power to the South due to the greater fecundity of Southerners and the expected greater immigration to the South because of the longer growing season and the claims to larger western territories, objected. At the same time, economic analysis of Southern wealth (of which land was both the most plentiful and the easiest to tax), would likely include the value of slaves (who were taxed as personal property, however).  To exclude slaves, which constituted a great part of the production of Southern wealth, from a wealth-tax census was particularly galling to Northerners. Southerners, on the other hand, argued that the truncated legal rights of slaves nevertheless did not deprive them of their status as “persons” for apportioning representation any more than the truncated rights of children and various others did.

The compromise was to assign to slaves a fractional value for both taxes and representation. That “3/5 clause” preserves the republican connection between representation and taxation, yet it also symbolizes the truncated pyramid of rights that composed the American system of slavery. That solution was not novel. It had been proposed as part of a failed amendment to the Articles of Confederation in 1783 and was part of the Pinckney and Paterson plans presented to the Convention. Nor was that the last time. The Convention was able to reach a compromise that eluded the 1829 Virginia state constitutional convention, at which the elderly Madison tried to push through a 3/5 compromise to settle a simmering conflict over apportionment between the non-slave holding western counties and the slave-holding eastern counties. The eastern planters wanted slaves fully counted, while the western yeomen wanted them excluded. The planters won. That was yet another grievance of powerlessness to be nursed by the residents of what would become West Virginia in 1862, after Virginia seceded from the Union.

Direct taxes have not been used by the federal government. They are difficult to process, as they are assessed against the states, which likely would have to collect them like requisitions under the Articles. Some, such as ancient head taxes, are deemed unfairly regressive. The recent health care law’s individual penalty has the whiff of such a tax and may, therefore, be apportioned unconstitutionally under that law. Federal land taxes are also politically impractical because they penalize population-rich, property-poor states. That said, the targets of wealth taxes are difficult to hide, which is why states and localities still use them.

Federal taxes are usually “indirect” (on conduct through excises and duties on sales or purchases of goods or services) or are income taxes. The last are difficult to assess accurately because income can be hidden. Sales cannot be hidden as easily, and such levies are easy to collect. That is also a feature of the much-discussed value-added tax. On the other hand, the final purchase price can mask the full amount of the VAT, making the tax’s opaqueness a troublesome consequence to the consumer.

The slave holders among the Founders have been accused rather too easily of hypocrisy and posturing for their public attachment to equality, as represented in the Declaration of Independence. The meaning of “equality” is much more complex. We, too, have different understandings of equality. Current conflicts between equality of opportunity versus equality of outcome versus equality of condition are an example. Hypocrisy requires a conscious rejection of principles of right behavior that one espouses. Falling short of one’s professed principles (when one still accepts their rightness) is not hypocrisy. Nor can we accuse the Founders of hypocrisy if their understanding of the principles differed from ours.

Only a few interpretations of equality, not generally so understood by the public at the time, might condemn slavery. Mostly, a general appeal to equality was not inconsistent with maintaining the institution of slavery. The Declaration is clearly rooted in modified Lockeanism. For Locke, basic political equality meant that all were created equal in the sense that none had the natural or divinely-created right of absolute rule over others. The Declaration, with its “consent of the governed” language in immediate proximity to the equality language, bears out this limited understanding of equality. Lack of a natural or divinely-ordained political right to rule does not necessarily foreclose an inequality imposed by peculiar laws (as Madison recognizes in his essay), or in non-political matters.

Equality in the religious society of the Founding meant theological equality before God and metaphysical equality in that all humans were moral actors (as Madison notes regarding slaves) who had to perform moral duties imposed by God and nature. God would judge personal failings in another life. This interpretation, as well, is not inconsistent with slavery on Earth.

Even a view of the term as meaning equality before the law was not incompatible with slavery. As Madison writes in Federalist 54, the slave codes provided a truncated set of legal protections for slaves. These codes became quite exhaustive over time. True, slaves lacked some of the rights of freemen (including, obviously, some crucial ones from our perspective). But so did women, children, indentured servants, criminals, the insane, and others. No one would have considered that this meant those groups were not “created equal” at a sufficiently high level of abstraction.

Americans as a group were not particularly outraged at that time about slavery because it was so common an institution in history and in their society. More immediately, the practice of the institution in the 1780s was comparatively mild, especially in contrast to the abject conditions from which many Americans had emigrated in the not-distant past. Some Americans professed concern. Thomas Jefferson wrote, musing about slavery, “I tremble for my country when I reflect that God is just.” Forrest McDonald responds, “But few of his countrymen trembled with him.”

Monday, July 12th, 2010

An expert on constitutional law, Prof. 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.  Prof. Knipprath has also spoken on business law and contemporary constitutional issues before professional and community forums.  His website is http://www.tokenconservative.com

Guest Essayist: David J. Bobb, Ph.D., director of the Hillsdale College Allan P. Kirby, Jr. Center for Constitutional Studies and Citizenship, in Washington, D.C.

A republican government is one in which the people rule—indirectly.  How, not if, the people should be represented was one of the vexing questions faced by the delegates to the Constitutional Convention.  Especially tricky was determining the size of the House of Representatives, the topic Madison takes up in Federalist 55.

Until the very last day and hour of the Convention’s debate in 1787, the consensus opinion of delegates was that there would be one member of the House for every 40,000 American citizens.  On September 17, what we now know as Constitution Day, the final day of deliberations, Benjamin Franklin made a last plea for unanimity in the signing of the document.  It was a dramatic speech, and might have made a fitting coda to the Convention but for one last interjection.

Nathaniel Gorham, from Massachusetts, motioned to peg the ratio of each House member per people represented at 1:30,000 instead of 1:40,000, hoping that the new figure might bring on board a few more dissenters who wished federal elected officials to be more accountable to the people.  After the motion was seconded, George Washington, who up to that point had not spoken at all during the Convention, despite presiding over it, intervened to offer his own, weighty, second to the motion.  The new ratio passed unanimously (even if the Constitution did not).

Despite the adoption of the new ratio, and the promise of a 65-member House of Representatives if the Constitution was ratified, some anti-Federalists still thought the numbers, and the principle they represented, were not quite right.  Lower ratios meant less chance of cabal, or undue influence by forces inimical to the common good.

To these complaints Madison offers a direct rejoinder:  “Nothing can be more fallacious than to found our political calculations on arithmetical principles.”  Fiddle with the numbers all you want, he says, but you are still dealing with people who are prone to abusing power.  “Had every Athenian citizen been a Socrates, every Athenian assembly would still have been a mob.”

To avoid mobocracy, then, we must rely upon prudence.  Sixty-five House members seems a good number for now; the nation will continue to grow, of course, Madison says.  The most important point is not to get lost in the debate over numbers, because however vital it is that we get those right, we must without fail take our political bearings from human nature, not numerical calculations.

“As there is a degree of depravity in mankind which requires a certain degree of circumspection and distrust, so there are other qualities in human nature which justify a certain portion of esteem and confidence.  Republican government presupposes the existence of these qualities in a higher degree than any other form.”

Men are not angels.  But they also are not beasts.  Don’t trust human beings too much, Madison says.  Similarly, don’t get so down on human beings that self-government is thought impossible.  Virtue is required for republican, or representative, government.  What sort of virtues—“these qualities” that are mentioned by Madison—do you think are “presupposed” by republican government?

As for the numbers, it’s worth noting that had the original ratio of 1:30,000 held constant, the House today would have more than 10,000 members.  Today, an average of slightly more than 700,000 Americans are represented by a single member of the House of Representatives.  Since 1912 the number of House members has been set by law at 435.  Is this ratio in need of a readjustment?

Tuesday, July 13th, 2010

David J. Bobb, Ph.D., is director of the Hillsdale College Allan P. Kirby, Jr. Center for Constitutional Studies and Citizenship, in Washington, D.C.

 

Guest Essayist: James D. Best, author of Tempest at Dawn

One of the criticisms raised against the Constitution was that there were too few members in the House of Representatives to adequately represent constituents.

The rule reads: “The Number of Representatives shall not exceed one for every thirty Thousand.”

Federalist 55 argued that a representative body ought to have enough members to mitigate the threat of corruption, but not so many so as to cause confusion. The initial number would be 65, but a census in three years would adjust this number. Federalist 55 basically argues that the number in the state legislatures varied, and if 65 members were too few, it would be increased in a short time after the first census.

Federalist 56 addresses the objection that a small House would not possess the collective knowledge necessary to make laws.

The first argument is one that we’ve heard before: The powers of the national legislature are limited, and state legislatures would have specific knowledge for the powers retained by the states. “In determining the extent of information required in the exercise of a particular authority, recourse then must be had to the objects within the purview of that authority.” Since the national government had only enumerated powers, the House did not need a broad breadth of knowledge.

This led easily into the second argument, which was that national law could rely on state laws. “The laws of the state, framed by representatives from every part of it, will be almost of themselves a sufficient guide … little more to be done by the federal legislature, than to review the different laws, and reduce them in one general act.”

Both arguments show that Publius believed the states would handle the preponderance of legislation and act as a safeguard against the federal government.

For these reasons, Publius concludes “that a representative for every THIRTY THOUSAND INHABITANTS will render the latter both a safe and competent guardian of the interests which will be confided to it.”

This may seem like a minor issue, but in 1787 it grabbed the attention of the most powerful politician in the country. In the last days of the convention, George Washington verbally supported allowing a representative for every thirty thousand, rather than one for every forty thousand. In his convention notes, Madison wrote, This was the only occasion on which the President entered at all into the discussions of the Convention.

During the convention, James Madison also proposed doubling the initial number of congressmen, but as part of the Publius triumvirate, he ended up defending the smaller number.

What about today? Until 1911, the number of representatives was adjusted by population. Since that year, the population criterion has been adjusted to keep the number of representatives constant. The “shall not exceed” clause allowed the House of Representatives to restrict their membership to 435. Congress restricted their growth in number, but not their growth in power.

A quote from Federalist 55 shows that Publius never anticipated a dominating Congress. “I am unable to conceive that the State legislatures, which must feel so many motives to watch, and which possess so many means of counteracting, the federal legislature, would fail either to detect or to defeat a conspiracy of the latter against the liberties of their common constituents.”

James D. Best is an author who writes historical novels and contemporary novels with a strong historical theme. Tempest at Dawn is a dramatization of the 1787 Constitutional Convention.

character that balances republican virtue, self-restraint, and vigilant self-interest, and on the subtler bonds of cultural and political tradition. Constitutional forms help, but, ultimately, responsibility lies with the people.

Madison warns against laws that will not have “full operation on [Congressmen] and their friends, as well as on the great mass of the society.” Making only laws that are universally applicable “has always been deemed one of the strongest bonds by which human policy can connect the rulers and the people together.”  Citizen legislators must not be a privileged class.

Though the Republican take-over of Congress in 1995 spurred the passage of a law that removed Congressional exemption from a dozen anti-discrimination, labor, and safety laws, there yet remain other laws that apply to private citizens but not to Congress. Madison asserts that the American spirit will restrain the legislature from making legal discriminations in their favor and that of a particular class. “If this spirit shall ever be so far debased, as to tolerate a law not obligatory on the legislature as well as on the people, the people will be prepared to tolerate anything but liberty.” Where does that place us?  As many have said in some variant about republican systems, “The people get the government they deserve.”

Wednesday, July 14th, 2010

An expert on constitutional law, Prof. 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.  Prof. Knipprath has also spoken on business law and contemporary constitutional issues before professional and community forums.  His website is http://www.tokenconservative.com.

 

Guest Essayist: Joerg Knipprath, Professor of Law at Southwestern Law School

Publius continues a lengthy examination of the election and composition of the House of Representatives with a response in Federalist 57 to the charge that the chamber will tend towards oligarchy. He finds this an absurdity in light of the short term of the representatives and the liberal and flexible qualifications for both those who will be elected and those who will elect them. But, in the harsh light of experience, is the objection entirely absurd?

Classic democratic and republican constitutions commonly relied on three formal devices connected with the selection of officials to prevent concentration of power in a few ambitious individuals. Those were selection by lot, short terms of office, and term limits. These mechanisms often were used for the selection of civil executive and administrative officers, the “upper house” of the legislature (such as the Venetian Senate), and—in Athens at least—the juries. The “lower house” of the legislature in each of them was not based on representation but on participation by the whole qualified class of citizens. In the House of Representatives, however, the representative principle applies, which makes that body more analogous to the first class of offices. Our system retains traditional democratic essentials in the selection of juries, intended to produce a cross-section of the community, to prevent corruption through jury tampering, and to keep “professional” jurors from accumulating power.

Classic republicanism saw election as “oligarchic,” unlike the “democratic” method of selection by lot. True, election can produce more qualified officials than the uncertainties from drawing lots. Done well, it elevates the most deserving, a point Madison hammers home in his discussion. If it works right, election can produce a true aristokratia, a government of the best. After all, the Athenians selected their strategoi, the military commanders, by vote and without term limits, because military skills are more specialized and crucial than ordinary bureaucratic talents. But the corrupt form of aristocracy is oligarchy, a government of the few for their gain. In that corruption lies the problem.

The classical distrust of elections was precisely what the Antifederalists feared, namely, that certain individuals would gain disproportionate personal power and begin to see their offices not as a public trust but as a personal estate. Inevitably, this would corrupt even the most virtuous newcomer. Moreover, once the official left office, the influence he gained in office likely would cause the office to be passed on to an ally or hand-picked successor, thereby creating a semi-hereditary sinecure. Looking at many members of Congress today (though not just them), one sees this political dynamic at work relentlessly. Short terms have not prevented the emergence of Congressional “barons,” those who spend decades in Congress tending to their fiefdoms. Nor is that entrenchment necessarily due to some great superiority of personal qualities rather than the inertia of party identification among voters and the gerrymandering of districts to protect party and incumbent advantage.

What forms might such corruption take, other than those already mentioned? Among them, Madison concedes the danger from laws that favor politicians, their friends, and particular interest groups, including ones that expressly exempt politicians from the coverage of those laws. Favoring the particular over the general interest is anathema to republican purists, but also a fact of political life that, as Publius has written frequently, must be channeled, as it cannot be cured.

Madison’s proposed solutions are by turns plausible, idealistic, resigned, and non-responsive. He mentions term limitation, by which he means frequency of election. Though many state offices at the time had annual terms, the two-year term for House members is sufficiently republican.

Second, the lack of property, religion, and status qualifications means that the net will be cast widely for suitable candidates. Could additional limits, other than those qualifications expressly written into the Constitution, be imposed by Congress or the states? As to the first, the Supreme Court emphatically rejected that proposition, concluding in Powell v. McCormack (1969) that the list of qualifications in the Constitution was exclusive. The Court also rejected that argument more circumspectly in regards to the very different issue of state regulation of the number of terms to be served in Congress, in Term Limits v. Thornton (1995). Madison’s reference in Federalist 53 to the lengthy terms some likely would serve, somewhat supports the Court’s conclusion. Third, the voters will have the same qualifications that the states themselves deem sufficiently republican.

Madison’s further reliance on politicians’ gratitude and sense of honor as restraining, at least for a while, the various corrupting tendencies is noble, but naive. Homo politicus is, unfortunately, too often characterized by a lack of these desirable natural sensibilities. The sentiment also conflicts with Publius’s admonition in Federalist 51 that, to limit government to its proper purposes, “ambition must be made to counteract ambition.” Madison is closer to the mark in suggesting that ambition for re-election works as a universal motivator for politicians’ behavior. Public choice theory has demonstrated just that.

The problem is that Madison connects that ambition with doing what benefits the voting majority. Leaving aside whether what is good for the immediate majority is collectively good for the people over the longer term, is Madison correct? Again, public choice theory, based on just watching what politicians do, shows that politicians’ self-interest and the rent-seeking by organized special interests better explains voting behavior than a strong attachment to collective good (if the latter can even be determined coherently) or even to the preferences of a weakly-organized majority. Then there is the matter of how that cozy connection between politicians and organized minorities seeking government favors affects the problem of faction that Publius has addressed repeatedly, if voting cannot cure that problem.

He grants that these internal and external controls may be “insufficient to control the caprice and wickedness of men,” but declares that this is all the mind and hand of man can devise, and that these controls reflect traditional republican practice. In Federalist 51, among others, Publius discussed the importance of constitutional structures as auxiliary precautions against the excesses of government. Here, he hedges those bets. Publius is right that the forms of government are important, but can only do so much to temper corrupt extravagances. The system’s success ultimately depends on the quality of people elected by voters possessed of the judgment and character that balances republican virtue, self-restraint, and vigilant self-interest, and on the subtler bonds of cultural and political tradition. Constitutional forms help, but, ultimately, responsibility lies with the people.

Madison warns against laws that will not have “full operation on [Congressmen] and their friends, as well as on the great mass of the society.” Making only laws that are universally applicable “has always been deemed one of the strongest bonds by which human policy can connect the rulers and the people together.”  Citizen legislators must not be a privileged class.

Though the Republican take-over of Congress in 1995 spurred the passage of a law that removed Congressional exemption from a dozen anti-discrimination, labor, and safety laws, there yet remain other laws that apply to private citizens but not to Congress. Madison asserts that the American spirit will restrain the legislature from making legal discriminations in their favor and that of a particular class. “If this spirit shall ever be so far debased, as to tolerate a law not obligatory on the legislature as well as on the people, the people will be prepared to tolerate anything but liberty.” Where does that place us?  As many have said in some variant about republican systems, “The people get the government they deserve.”

Thursday, July 15th, 2010

An expert on constitutional law, Prof. 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.  Prof. Knipprath has also spoken on business law and contemporary constitutional issues before professional and community forums.  His website is http://www.tokenconservative.com.

 

Guest Essayist: Brion McClanahan, Ph.D., author of The Politically Incorrect Guide to the Founding Fathers

James Madison wrote Federalist No. 58 to defend the construction of the House of Representatives, and in particular to refute the charge that “the number of members will not be augmented as the progress of population demands.”  This is an interesting issue and one that demands both a retrospective and contemporary analysis.

He began by stating that the objections against the House on the aforementioned basis “can only proceed from a partial view of the subject, or from a jealousy which discolors and disfigures every object which is beheld.”  Madison simply pointed to the fact that the Constitution explicitly stated that the House will be reapportioned every ten years following a mandatory federal census and that the initial number of representatives was to be for “the short term of three years.”  He illustrated that this design was based on several State constitutions, and the United States Constitution, in contrast to the State models, had more teeth.  The United States Constitution stipulated that each State must have at least one representative in the lower House and that no member would represent more than thirty thousand inhabitants.  States had gradually increased the numbers of representatives in their legislative bodies without such explicit language, and Madison argued that this would surely be the case under the United States Constitution.

Moreover, because the Congress was a bicameral legislature, it could check schemes by one house or the other to seize control of the government.  The Senate was, in Madison’s words, the “representation…of the States,” while the House was “a representation of the citizens.”  No house, he argued, would allow the other to compromise their specific constitutional authority, and no faction in either house would be able to garner enough support to destroy the other.   Of course, Madison was restating his beliefs in the “checks and balances” of the federal government under the Constitution.  And, if the Senate, controlled by the smaller States, tried to block reapportionment, the House could refuse to fund the government.  As Madison stated, “This power over the purse may, in fact, be regarded as the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people, for obtaining a redress of every grievance, and for carrying into effect every just and salutary measure.”

Of course, Madison based his arguments on the premise that the United States Constitution maintained a federal republic and did not create a “national” government.  The States still had equal representation in the Senate.  He was negating objections that were born from the federal convention in Philadelphia, namely that the “small States” would be swallowed up by the “large States.”  In many ways, “large State” and “small State” were code words for “national” and “State’s rights.”  The “small States” enjoyed equal representation under the Articles of Confederation in a federal republic.  The “large States” often believed they were under-represented and thwarted by “factions” of “small States;” thus, they wanted the greater control a “national” government offered.  Madison tepidly argued (he wanted a much more powerful central government at the Philadelphia Convention), as did many Federalists who initially supported the Constitution, that the Constitution did not change the nature of the United States government, only the structure.  As such, the House could add members without jeopardizing the equality of the States through the Senate.

Madison cut to the heart of the debate near the end of the essay.  Some members of both the Philadelphia Convention and the State ratifying conventions believed that the House contained too few members to be a truly representative body of the “people.”  A thirty thousand to one ratio did not allow for enough democratic control of the government.  Madison answered by stating, “the more numerous an assembly may be, of whatever characters composed, the greater is known to be the ascendency of passion over reason.  In the next place, the larger the number, the greater will be the proportion of members of limited information and weak capacities.”  Madison said that history had proven that large legislative bodies were typically hijacked by “a single orator, or an artful statesman….Ignorance will be the dupe of cunning, and passion the slave of sophistry and declamation.” He continued:

The people can never err more than in supposing that by multiplying their representatives beyond a certain limit, they strengthen the barrier against the government of a few. Experience will forever admonish them that, on the contrary, AFTER SECURING A SUFFICIENT NUMBER FOR THE PURPOSE OF SAFETY, OF LOCAL INFORMATION, AND OF DIFFUSIVE SYMPATHY WITH THE WHOLE SOCIETY, they will counteract their own views by every addition to their representatives. The countenance of the government may become more democratic, but the soul that animates it will be more oligarchic.

Madison’s arguments in Federalist No. 58 are contemporary for two reasons.  First, his contention that the Constitution did not destroy the federal republic is true when coupled with the Tenth Amendment to the Constitution and the original election of the Senate by State legislatures.  The Seventeenth Amendment, which allowed for the direct election of senators, destroyed one vestige of State control over the government.  In essence, both houses are now “national” legislative bodies, something Madison argued against in Federalist No. 58 (but supported in his Virginia Plan).  Second, Madison was correct when he asserted that large legislative bodies are unresponsive and doomed to failure.

But in 1790, the population of the United States stood at around four million, and the largest State, Virginia, had less than 800,000 people.  That is one legislative district today.  Twenty-six States have a greater population than the entire United States in 1790 with four States exceeding the 1840 population of the United States.  If the Framers believed that a ratio of thirty thousand to one was sufficient for a representative legislative body and that a population of four million constituted a “country,” then would not the States today—forty three of which have a population greater than one million and many which have the approximate thirty thousand to one ratio in the original Constitution—be better handling the majority of legislative issues?  The Founders would think so.

Friday, July 16th, 2010

Brion McClanahan, Ph.D., is the author of The Politically Incorrect Guide to the Founding Fathers. He teaches history at Chattahoochee Valley Community College in Phenix City, AL.

 

Guest Essayist: Kyle Scott, Political Science Department and Honors College Professor at the University of Houston

In a representative system of government the election of legislators is of paramount importance. Given that the legislature is to be the primary lawmaking body, the election of its members will go a long way in deciding what gets done. Thus, it is no surprise that the method by which members of the House and Senate were to be chosen under the new Constitution became a contentious issue during the ratification debates. On February 22, 1788, Alexander Hamilton published Federalist #59—under the now well-known pseudonym Publius—to address the issue of how the election of members of Congress was to be regulated.

In the Declaration of Independence one set of grievances levied against King George III was the unfair manipulation of elections. Among the long-train of abuses that the King was found guilty of were that “He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their public records…He has dissolved representative houses repeatedly…He has refused for a long time, after such dissolutions, to cause others to be elected; whereby the legislative power, incapable of annihilation, have returned to the people at large for their exercise; the state remaining the meantime exposed to all the dangers of invasion from without, and convulsions within.” The idea that a people ought to determine for itself how its representatives are elected and when the legislative branch meets and dissolves is central to the Jeffersonian conception of self-government and all those who agree with the political theory outlined in the U.S. Declaration of Independence. For without the ability to do so, the people are left unable to govern themselves and must succumb to the whim of the body that does have the power to decide how legislators are chosen and when the legislature is to meet.

Federalist #59 argues that these powers are given to the state except in instances when the national government feels it is necessary to step in. The national government, according to Hamilton’s argument, may alter the times and manner for holding elections of senators and representatives, and may alter the places in which elections are held for representatives, but may not interfere with the places in which senators are elected. Hamilton’s argument was that leaving these powers solely in the hands of the states would leave the Union at the mercy of the states. Hamilton’s fear was of disunion. He argued that the national government should be given a check on the ability of state governments to regulate the election of members to Congress in order to prevent disunion that would result from too much state autonomy. Opponents of constitutional ratification, known collectively as Anti-Federalists and who Hamilton was responding to in #59, did not see disunion as the primary threat to self-government as Hamilton did, but rather the accumulation of political power within a centralized national government.

While the debate over how to determine the means of representation is itself important, it brings to light one of the central debates in American politics—how to balance the need for stability and the need for liberty. We see this debate play out in issue areas as varied as federalism and national security to financial regulation. It is a continuous struggle to find the balance, but it is in the struggle where the balance is found. Had Hamilton faced no opposition then one could justifiably read the constitution as a vehicle for government centralization, but because he faced opposition we know that the constitution was designed to balance the need for a central government with the need to maintain local government structures. We need to take our cue from the founding generation—and not just Publius—but all of those who took it upon themselves to embark on a high-minded political debate that touched upon perennial questions of political significance. By following the founders in this respect we will be able to engage in a reasoned and informed debate about what is most important to us. By doing so we will be able to stay faithful to the wording and intentions of the founders’ Constitution as well as the spirit through which the founding generation governed.

Monday, July 19th, 2010

Kyle Scott, PhD teaches in the Political Science Department and Honors College at the University of Houston. His published research deals with constitutional interpretation and its relevance for contemporary politics. His most recent book, The Price of Politics, critically assesses the Supreme Court’s eminent domain decisions and explains the importance of property rights.


Guest Essayist: James D. Best, author of Tempest at Dawn

Federalist 59-61 address the federal power to regulate the election of senators and representatives. The clause being defended by Hamilton reads: “The times, places, and manner of holding elections for senators and representatives shall be prescribed in each state by the legislature thereof; but the Congress may, at any time, by law, make or alter such regulations, except as to the places of choosing senators.”

Vox Populi, in Anti-federalist 59, argued against the national congress regulating the election of senators and representatives. This was viewed as an infringement on state sovereignty and a possible tool of national tyranny.

In Federalist 59, Hamilton defended this clause by saying that every government must have the means to defend itself. The safety of the national government depended on its authority to override state rules that were harmful to the election of its own members.

In Federalist 60, Hamilton again argues against unfettered state authority over the election of members of the United States Congress. A national override of election laws is less pertinent than the arguments used by Hamilton. He defends the clause by stressing that safety from oppressive laws comes from the careful distribution of power and divergent methods of selecting each component of the national government.

He says, “the circumstance which will be likely to have the greatest influence in the matter, will be the dissimilar modes of constituting the several component parts of the government. The House of Representatives being to be elected immediately by the people, the Senate by the State legislatures, the President by electors chosen for that purpose by the people, there would be little probability of a common interest to cement these different branches in a predilection for any particular class of electors.”

One is struck by the recurrence of the checks and balances theme—in Madison’s convention notes, the Constitution itself, the Federalist Papers, and the minutes of the ratification conventions. There can be no doubt that the Founders believed that liberty depended on one part of the government acting as an effective check on all other parts of the government, and that meant between the national branches and between the states and the national government. The Founders abhorred concentrated power. They believed that only through judiciously balanced power—constituted by dissimilar modes—could liberty survive the natural tendency of man to dictate the habits of other men.

Hamilton made another interesting argument. If elected officials violated the Constitution to usurp power, “Would they not fear that citizens, not less tenacious than conscious of their rights, would flock from the remote extremes of their respective states to the places of election, to overthrow their tyrants, and to substitute men who would be disposed to avenge the violated majesty of the people?”

Tuesday, July 20th, 2010

James D. Best is an author who writes historical novels and contemporary novels with a strong historical theme. Tempest at Dawn is a dramatization of the 1787 Constitutional Convention.

 

Guest Essayist: Kyle Scott, Political Science Department and Honors College Professor at the University of Houston

In Federalist #61 Hamilton reveals his theory of constitutional construction in a peculiar way. Hamilton’s view of the role constitutions should serve is consistent with what modern political scientists consider vital for a long-lasting constitution. Constitutions, if they are to last, must be broad and treated with reverence.

The topic of #61 is a carryover from #59 and #60; for the first of these I have already provided comments. The reason Hamilton cannot leave this topic alone is because his opponents will not. Much of the Federalist owes its structure to the fact that Publius was engaged in an ongoing public opinion campaign. If Publius felt that it lacked public support on a particular facet of the Constitution because of an objection raised by an Anti-Federalist then Publius would write another paper on the topic. Because many of the objections are being levied by those who favor a more decentralized structure than what the Constitution proposes; Hamilton uses the states to his advantage. In this paper He shows that, as has been customary throughout the Federalist, the provisions which are incorporated into the Constitution also appear in some of the state constitutions. This is a successful rhetorical strategy albeit one that lacks some logical and philosophical rigor. For instance, while Hamilton never reconciles the Constitution’s inconsistency with the U.S. Declaration with regard to the location of elections, he does make it a more palatable inconsistency to show that the people of New York have dealt with this in their own state without causing much of a problem.

Hamilton gives a straightforward defense of placing the power to determine when and how elections are held in the latter-third of #61, something for which the reader has been patiently awaiting. Putting this power into the hands of the national government is a matter of political expediency. If the power were left in the hands of the states there would be little or no consistency with regard to elections and members elected to the House and Senate would begin their terms anytime between January and December depending upon when their state held elections. One could easily imagine what types of problems this might cause. Of course, Hamilton knows that there is an easy objection to his claim: Why leave the decision to Congress? Why not specify in the Constitution when all elections for national office are to be held? Hamilton’s response is where we see his theory of constitutional construction come through.

Hamilton objects to the inclusion of such a specification in the Constitution because he is open to the possibility that events and changes may occur that would require an amendment to the Constitution as it relates to this matter. If there are such events on a regular basis, amending the Constitution on a regular basis will become necessary. Hamilton does not want to see this happen. For if Constitutions are specific in their provisions, and they contain too numerous provisions, they will require constant amendment. Being so specific is not what Constitutions are for, but rather laws. Constitutions provide the scaffolding and the laws provide the brick and mortar. Moreover, the more we amend Constitutions the more feeble they become, if not in actuality, then at least in perception, which then leads to an actual weakening. If citizens and officials perceive their Constitution as weak, then the whole system runs the risk of collapsing. A Constitution must be held in reverence by the people and officials; which means it should not be tinkered with too much after it is ratified. Hamilton knew this, and so did the Framers who approved of Article V which made the amendment process so difficult and thus unlikely.

Whether we agree or disagree with Hamilton’s position that the threat to a just government comes from below rather than above, we cannot deny that his understanding of constitutional construction is accurate.

Wednesday, July 21st, 2010

Kyle Scott, PhD teaches in the Political Science Department and Honors College at the University of Houston. His published research deals with constitutional interpretation and its relevance for contemporary politics. His most recent book, The Price of Politics, critically assesses the Supreme Court’s eminent domain decisions and explains the importance of property rights.

 

Guest Essayist: Professor Will Morrisey, William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College

Publius turns to an explanation and defense of the Senate, and therefore to the importance of a bicameral legislature, replacing the unicameral legislature of the Articles of Confederation government. With the Senate the Framers solved two crucial problems, one of them regarding the American regime, the other regarding the modern state.

The regime problem: Can a republican regime, a regime in which the people rule themselves through their chosen representatives, muster the prudence necessary to avoid devolution into foolish and unjust rule by mere majority will?  If not, then a regime of one or a few rulers, men and women bred to rule, a regime identical to those everywhere else on earth at that time, must finally come back to America.

The state problem: can a centralized modern state—indispensable in a world full of such states—nonetheless provide `political space’ for local and regional self-government?  Or must centralization in the national capital or in the capitals of the constituent states of the federation necessarily dry up the springs of citizenship—active participation by the body of citizens in their own communities?

To keep track of Publius’ argument, it’s useful to outline it.  He announces five topics for consideration with respect to the Senate, but quickly disposes of the first three.  His treatment of topics IV and V—predictably, Publius exhibits a fondness for Roman numerals—takes up more than 90% of his attention.

The qualifications of senators (#62, paragraph 2).

The appointment of senators by the state legislatures (#62, paragraph 3).

The equality of representation of the states in the Senate (#62, paragraphs 4-6).

The number of senators from each state and their term in office (#62, paragraphs 5-16; #63, entire); this topic divided into the “six inconveniences” American suffers in not having such a body.

The powers invested in the Senate (#64, #65, #66).

With this outline in hand, consider Federalist #62.

An American qualifies for election to the Senate upon reaching his thirtieth birthday, having been a citizen here for the last nine years of his life, at least.  Because the senate exercises power over foreign policy—particularly, ratification of treaties and declaration of war—a senator should know more and exhibit greater “stability of character” than a House member.  This means that Publius regards the foreign-policy powers of the Senate as weightier than the House’s power of the purse.  We might think the opposite, but of course we live under a system that has consolidated much more domestic power at the national level than the Founders judged wise.

To prevent such consolidation, the Framers had the senators appointed by the state legislatures.  This assured the state governments a means of defending themselves from within the federal government itself.  In the early decades of the republic, legislatures often sent their appointees to Washington with a list of policy instructions, which the appointee ignored at risk of his re-election.  The Progressive-era abolition of this method of electing senators outflanked the states by giving individual senators a power base independent of the legislatures.  This change in institutional design contributed to the centralization of domestic powers, as senators could begin to collaborate with representatives in the House, effectively transferring the old `spoils system’ to their own hands—all without the messy charges of corruption attendant upon the antics of party bosses.  Eventually, the roads to re-election became: first, bringing home the bacon legally and, second, providing constituent services to voters needing a guide through the bureaucratic maze.  This corrupted the intention of the Framers and led to civic indifference—`consumerism’ in politics instead of self-government.

An aspect of the Framers’ design that remains unchanged is the equal representation of each state in the Senate.  Writing first of all for a New York audience, Publius has every reason to apologize for this feature and move on quickly, as the provision amounts to a major concession by the big states to the small states.  But he also fits the Senate into his larger conception of the regime.  As he has already explained, the new regime is an extended republic (Federalist 10); it controls the effects of faction by multiplying factions over a large territory.  American is also a commercial republic, unlike the military republics of antiquity—most notably, Rome.  With the Senate, the United States becomes a balanced, compound republic, “partaking both of the national and federal character,” avoiding “an improper consolidation of the States into one simple republic.”  Hence the bicameralism of the U. S. Congress, an institutional design feature elaborately defended by John Adams in his Defence of the Constitutions of the United States. Given the Senate’s power to block laws enacted by the House, the states can defend themselves against such consolidation—against excessive statism—while nonetheless forming part of a national state sufficiently centralized to defend itself against the statist and typically monarchist war machines of Europe.

Can a republican regime avoid the fatal defect of previous republics—their lack of fidelity of purpose and of deliberation in debate?  Can republics think?  Can they act faithfully, steadily?  Can they be wise husbands, not silly gigolos?

The small number of senators will promote real discussion instead of “the sudden and violent passions” displayed by large, unicameral legislatures.  Longer terms in office will afford senators a real chance to learn their craft and to stick with long-term policies.  Fickle governments bring upon themselves the contempt of foreigners and the confusion of citizens.  “It will be of little avail to the people that the laws are made by men of their own choice if the laws by so voluminous that they cannot be read, or so incoherent that they cannot be understood,” undergoing “incessant changes” that prevent citizens from knowing how to plan their own lives, from education to investment.  Such laws subvert popular government by leaving effectual rule in the hands of “the sagacious, the enterprising, and the moneyed few” who alone can exploit these protean convolutions that undermine the rule of law itself.  “Anything goes,” indeed.

If anything goes, then respect for the regime will go, too.  Finally, the failure of the rule of law means the failure of rule, simply—in America’s case, self-government through our elected representatives.

Thursday, July 22nd, 2010

Will Morrisey holds the William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College.  His most recent books are Self-Government, The American Theme: Presidents of the Founding and Civil War, The Dilemma of Progressivism: How Roosevelt, Taft, and Wilson Reshaped the American Regime of Self-Government, and Regime Change: What It Is, Why It Matters.

 

Guest Essayist: Professor Will Morrisey, William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College

Federalist 63: Responsibility and the Rule of Reason

A small Senate whose members serve long terms answers the need for “order and stability” in the national government, thus fostering respect for the “political system” of America—the institutional architecture of popular self-government.  In Federalist #63 Publius turns to the importance of cultivating respect for this people and their regime among foreign nations.  He then discusses the Senate’s capacity to ensure the truly indispensable thing for any government: the rule of reason.

Under the Articles of Confederation foreign policy was the primary focus of the unicameral Congress, domestic policy having been for the most part the domain of the states.  Despite this, Publius argues, America has lacked “a due sense of national character” in the world.  He means “character” in both senses: moral soundness, but also a well-defined identity.  If the world’s a stage, then each player needs a recognizable role or persona. Without one, the other actors won’t quite know what how to `play off him,’ so to speak.  With a bad one, the other actors will treat him as Iago, or maybe as one of Shakespeare’s clowns.  Such notable American statesmen as George Washington and Benjamin Franklin deliberately cultivated their public faces.  In choosing good roles and playing them with energy and intelligence, they strengthened their own inner characters and established their reputations among their fellow citizens and throughout the world.

A Senator’s term in office and his status as one of only two representatives selected by his state legislature—itself likely to know the character of their chosen representative better than the voters at large could do—will incline him to identify his own ambitions with the welfare of his state, knowing that “the praise and blame of public measures” will attach to his own public character.  He will be seen; he will be heard; he cannot evade the scrutiny of his colleagues in the Senate or in his state capital.

The matter of character fits well with Publius’ final consideration: responsibility.

Although Publius did not invent this word, as some scholars have imagined (it appears in English legal writings as early as the mid-seventeenth century), he did put it squarely on the American political map.  If representation is the central feature of a republican regime, then responsibility—meaning both responsiveness to those one represents and accountability for one’s actions—is the soul of representative government.  By reasonable responsibility Publius means that no one expects his representative to accomplish things beyond his powers; fittingly, the powers of the Senate are the topic of the subsequent three papers.

Here is where the bicameral institutional structure of Congress comes into play. The bicameral Congress will derive its energy from the often-impassioned House, its prudence from the Senate, which balances “the cool and deliberate sense of the community” against that community’s urgent desires.  “What bitter anguish would not the people of Athens have often escaped if their government had contained so provident a safeguard against the tyranny of their own passions?”  Even with the greater extensiveness of the American republic, which will serve as a brake upon popular excesses even in the House, the Senate will serve as an “auxiliary precaution.”  It is one thing to slow passions down; it is another to map out the right direction for the country.

Above all, it is the republican institution of representation, as opposed to the democratic device of all-citizen assemblies, which will make American lawmaking more stable and reasonable than that of any ancient polis.  In both foreign and domestic policy, then, the Senate will provide some of the long-term, prudential thinking previously seen mostly in aristocracies.

To those who fear that the Senate will become an outright aristocracy, dominating the other branches, Publius replies that this would require the Senate to corrupt the state legislatures, the House, and the people—an unlikely `trifecta.’  Sure enough, the Progressives succeeded in deranging the Constitution in just that way, not only by changing the election rules for Senators but by providing the House with bigger revenues via the income tax.  Even so, it remains quite far removed from a genuine hereditary aristocracy.

Friday, July 23rd, 2010

Will Morrisey holds the William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College.  His most recent books are Self-Government, The American Theme: Presidents of the Founding and Civil War, The Dilemma of Progressivism: How Roosevelt, Taft, and Wilson Reshaped the American Regime of Self-Government, and Regime Change: What It Is, Why It Matters.

 

Guest Essayist: Professor Will Morrisey, William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College

Publius now begins his fifth and final topic respecting the Senate: its powers.  In Federalist 64 he considers the power to ratify treaties.

Publius argues that the state legislatures will likely choose outstanding men to represent them in Congress.  Senators will be known to their electors, who will “not be liable to be deceived by those brilliant appearances of genius and patriotism which, like transient meteors, sometimes mislead as well as dazzle” (think “Aaron Burr”).  State legislators will want representation by men they trust who have the intelligence and strength of character to defend and advance the interests of their state in the national government.  One might add that the removal of two such men from the local scene would not bereave the less gifted rivals they leave behind.

Did it work?  The record of the nineteenth century suggests that it did: Adams, Clay, Calhoun, Webster, Benton, Houston, Chase, Seward, Lodge: these men enjoyed more prominence than most of the presidents of their time.  Among the best (if long-forgotten) accounts of the old Senate remains Oliver Dyer’s Great Senators of the United States Forty Years Ago, published in 1889.  One of the first stenographers in America, Dyer worked in the Senate in 1848 and 1849, and his highly readable account of the lions of those days stands as a fine introduction to the nature of political life itself as well as a testament to the kinds of men who once found that life worth choosing.

Such prominence can serve the country in foreign policy. Given the need for secrecy and careful timing in any confidential matter, presidents and their ambassadors negotiate treaties.  The experiment in making Congress responsible for such negotiations had failed to satisfy the Framers.  The Senators will not negotiate treaties; they will ratify them, inasmuch as the results of secret negotiations obviously require public review.  The need for a two-thirds majority for ratification ensures that the treaty will have broad support among the states.

What is more, treaties are laws; still more than that, they are supreme laws of the land.  This had not been so under the Articles, under which the states reserved the power to implement treaties, with predictable results.

The supremacy of treaty law made (and still makes) Americans nervous.  Publius observes that if treaties were “repealable at pleasure,” no foreign country would “make any bargain with us.”  Treaties are contracts between nations not under one another’s sovereignty.  They are harder to enforce than ordinary laws.  Like contracts, they require the consent of both parties to enact but would be worthless if one party were legally entitled to unilaterally rescind them—unless, of course, the contract stipulates the right to do so under specified circumstances.  This does not mean that the United States cannot withdraw from a treaty—break the contract.  But it should do so in the knowledge that its partner in the contract may attempt to enforce the terms of the contract, up to and including the use of military force.  The conditions for the just termination of treaties and their just enforcement were familiar to the founders from the major works of international law then extant—most particularly The Law of Nations by the French Swiss writer Emer de Vattel, from whom Jefferson had drawn several of the phrases in the Declaration of Independence.

Domestically, the supremacy of treaty law meant that both states and individual citizens needed to abide by them. Treaties now overrode state laws.

But do they override existing constitutional law?  This worried the senators who voted against the League of Nations, fearing that membership in the League would impinge upon their power to declare war.  Although one never knows what a modern Supreme Court decision might say, from more or less the beginning the consensus thus far has been “no.”  Because treaties are made under the authority of the United States they cannot (as Alexander Hamilton observed in 1796) “rightfully transcend the constituting act”—change any constitutional law.  If treaty law could amend the Constitution, this would lead to the absurdity of senators amending the Constitution without recourse to ratifying conventions of the states.  The Constitution, federal statutes, and treaties are all supreme laws of the land, but the Constitution is (as it were) more supreme than statutes and treaties.

Publius touches on a remarkable feature of the treaty ratification power: it is held by the body that represents the states.  The most `locally’-centered branch of the national government will hold the most `international’ power.  Although the states may see their laws overridden by treaties, it will be the states’ representatives who consent to doing so.

Publius may imply that the habit of causing the ambassadors from the states to think in terms of treaties that will affect the whole country might serve to build national sentiments.  This it might have done, but the more powerful domestic issue of slavery overcame any such sentiments in the 1850s.  Be this as it may, lodging the treaty ratification power in the Senate solves the problem of the Articles.  It removes the possibility of individual states obstructing a treaty by refusing to implement it, but it allows the states to retain a proximate influence upon treaties by making their representatives responsible for voting treaties up or down.

Monday, July 26th, 2010

Will Morrisey holds the William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College.  His most recent books are Self-Government, The American Theme: Presidents of the Founding and Civil War, The Dilemma of Progressivism: How Roosevelt, Taft, and Wilson Reshaped the American Regime of Self-Government, and Regime Change: What It Is, Why It Matters.

 

Guest Essayist: Troy Kickler, Ph.D., Founding Director of the North Carolina History Project

Alexander Hamilton penned three essays (Federalist 64 – 66) explaining why the U.S. Constitution invested the U.S. Senate with certain powers.  In The Federalist 65, he explains, in particular, the Senate’s role in the impeachment process, and why that body–and not the Supreme Court–had been given the authority to convict.

According to the Constitution, the House of Representatives impeaches a national, public official and the Senate hears the trial and issues a verdict. Since 1789, when the U.S. Constitution was ratified, seventeen Americans have been impeached.   The list includes President Andrew Johnson and President William Clinton; however, it includes mainly judges at the U.S. District level.  Among those accused of political misconduct, one resigned before his trial, seven have been convicted, and eight have been acquitted.  Congress can only remove the convicted from their current political office.  The court system will hear any other trials and issue punishment for possible criminal acts.

For the impeachment process, the Constitution requires 1) that Senators “be on Oath or Affirmation,” 2) that the Chief Justice preside over any presidential impeachments (the Vice-President presided over all others), and 3) that a conviction verdict have a minimum of 2/3 vote.

Since 1776, individual state constitutions had included an impeachment process for state officials, and Antifederalists in various states questioned whether state constitutions might be undermined.  Among them was Luther Martin, who ironically later opposed Jeffersonian-Republicans by serving as Justice Samuel Chase’s legal defense during an 1805, national impeachment case.  Other Antifederalists genuinely worried that outside political influence during the impeachment process might affect the Senators’ votes.  In North Carolina, Joseph Taylor and Timothy Bloodworth worried that the House might one day impeach state officials.  Edenton’s James Iredell, one of the first justices on the U.S. Supreme Court, dismissed this argument by pointing out that the constitutional language was clear: only national officials could be impeached by the House of Representatives and possibly convicted by the Senate.

Alexander Hamilton was fully aware of such arguments and put forth a cogent defense of the Senate’s impeachment power in Federalist 65.

One major question that Hamilton answered is why the Senate is given the power to try impeachment cases.  Somewhat agreeing with Antifederalists, Hamilton admitted that partisanship or “political factions” could trump demonstrations of guilt and truth during impeachment trials.  It was possible that reelection concerns and constituents would indeed play a larger role in the impeachment voting process than a genuine search for truth. But that’s why, Hamilton pointed out, the Senate–not the House of Representatives–was given the power.

Before the 17th Amendment’s passage in 1913, state legislatures elected national senators for their state, so Senators were not concerned with winning the popular vote.  Senators were considered in Hamilton’s era, as legal scholar Michael J. Gerhardt writes, “better educated, more virtuous, and more high-minded . . . and thus uniquely able to decide responsibly the most difficult of political questions.”  Elected by state legislative bodies, Senators were considered by Hamilton to be impartial and “sufficiently dignified” to perform the task. And to emphasize the seriousness of the impeachment and ensure a genuine search for truth, these virtuous men were required to take an oath or affirmation (affirmations were allowed so that Quakers, who were conscientiously scrupulous of taking oaths, might not be excluded).

Hamilton considered the Senate preferable to the Supreme Court, too.  For one, impeachment was serious business: a conviction could doom an official’s honor.  Such a decision, Hamilton reasoned, should not be left to a “small number of persons” but to serious deliberation among the most virtuous Americans.  Moreover, the Court should not preside over two cases.  After being stripped of emoluments, the convicted might face the same—yet now predisposed–judges in another trial.  Judges inevitably influenced juries, the New York lawyer also stressed.  Some Constitution critics had suggested uniting the Supreme Court and the Senate during impeachment trials; Hamilton argued that might still lead to an unfair, double prosecution.

The Senate is also preferable to charging people “wholly distinct from the other departments of government” to preside over impeachment trials, Hamilton writes.  That option would increase government size and possibly require permanent positions; either way it would be too costly.  It also would slow down the impeachment process and thereby give the guilty extra time to obfuscate the truth.  Furthermore, Hamilton regretted to point out, a delay might give House members time to influence the decision.

Revealing the popularity and strength of Antifederalist arguments in certain states, Hamilton urged readers to consider the Constitution in its entirety and to avoid letting perfection be the enemy of the good.  The Constitution should not be rejected strictly for a small number of problems, Hamilton argued: [Antifederalists] “ought to prove, not merely that particular provisions in it are not the best which might have been imagined, but that the plan upon the whole is bad and pernicious.”  The search for perfection in government, Hamilton warned in Federalist 65, can lead to anarchy.

Tuesday, July 27th, 2010

Troy Kickler, Ph.D., is Founding Director of the North Carolina History Project.

 

Guest Essayist: Horace Cooper, writer and director of the Center for Law and Regulation at the Institute for Liberty

In Federalist #66 Alexander Hamilton attempts to respond to objections about the new United States Senate acting as the Court in the event of impeachments of judges or executive branch officials.

The first complaint raised by critics of this set up was that “the provision in question confounds legislative and judiciary authorities in the same body, in violation of that important and well established maxim which requires a separation between the different departments of power.”  It is noteworthy that Hamilton eagerly accepts the notion that liberty is protected by dividing duties among several branches of government.  In the case of the Senate acting as the impeachment court Hamilton suggests that this “partial intermixture of those departments for special purposes” is acceptable because of the benefits which accrue and because the Constitution doesn’t really mix these as much as critics charge.

Hamilton notes that the House and the Senate play unique roles that are essential — the House acts as the accuser and the Senate acts as the jury or judge.  The House requires a simple majority for the accusation, but the Senate requires a concurrence of two-thirds ensuring that a too hasty or contrived accusation isn’t carried out.  He next points out that in the State of New York the Senate is the impeachment court and the highest judicial authority for civil and criminal cases.  If having the United States play a role as jurors in impeachment is unwarranted, how much more so is it true with the Constitution of New York?

The second issue raised is that having the Senate act as the Court “contributes to an undue accumulation of power in that body, tending to give to the government a countenance too aristocratic.”    Not only does the Senate in conjunction with the Executive have treaty-making power, critics charged that the impeachment role potentially made them the most influential division of government.  Hamilton says that there is no objective measure of which part of the new government was the most influential.  Instead Hamilton argues that we should recognize that the House of Representatives being the popularly elected branch is most likely to be the most powerful and influential branch of government.  Hamilton explains that the House initiates impeachment (a strong power), and it is noteworthy that all revenue bills must originate in the House.  The House also adjudicates disputes over the election of the Presidency.  Weighed together the unique powers of the House demonstrate that there isn’t too much power being concentrated by the United States Senate.

The next objection was that the Senate would be ineffective in this role because “they would be too indulgent judges of the conduct of men, in whose official creation they had participated.”  Here Hamilton explains that the criticism leveled against the Senate goes against the example in most of the state governments and almost all national governments that Hamilton has ever seen.  All of them presume some role on the part of the parties that appointed individuals in policing those individuals’ misdeeds.  Hamilton says that one byproduct of this dual function is that Senators may be more scrupulous about who they vote to confirm since they will ultimately be called to task in the removal of those individuals if they act corruptly.  Additionally since they only vote to confirm and in fact the Constitution contemplates no role in the actual selection of the individuals ultimately nominated there is little reason to think that Senators would take casually their responsibilities to confirm or convict in an impeachment trial public officials.

The final complaint was that the Senate can’t objectively carryout this responsibility because “union with the Executive in the power of making treaties” may be the occasion for actual collaboration in misdeeds and corruption.  Here Hamilton is responding to charges similar to those in objection number three.  Instead of alleging lenience by the Senate, this objection is that perhaps the Senators would somehow be complicit in the misdeeds of the individual being impeached and therefore would fail to carryout their duties with regard to the impeached individual.

Hamilton argues that this complaint really is a complaint against the integrity of the President and the Senate generally.  Whether they had impeachment power or not, their propensity for misdeeds would be distinct and separate from the issue of abusing the impeachment court process.  There is no reason to think that their unique role as Senators would make them more likely to support corruption than would being a Member of the House of Representatives Hamilton explains.  Nevertheless, Hamilton recognizes that even if individual members of the Senate were corrupt, the fact that they must all act in concert minimizes the likelihood that some corruption on the part of an executive branch official would be collaborated and harbored by two-thirds of Senators.

Finally, Hamilton closes with this prescient observation.  Perhaps the greatest assurance that the Senators will carryout their responsibilities in impeachment impartially is that it would serve to “divert the public resentment from themselves by a ready sacrifice of the authors of their mismanagement and disgrace.”  In other words, rather than suffer in the public’s eye, Senators will readily impeach corrupt officials.

Wednesday, July 28th, 2010

Horace Cooper is a writer and is the director of the Center for Law and Regulation at the Institute for Liberty

 

Guest Essayist: Troy Kickler, Founding Director of the North Carolina History Project.

Among the 85 essays in The Federalist Papers, some of the most passionate language is in Federalist 67.  A frustrated Alexander Hamilton admits that moderation in tone in writing #67 had been a difficult task.  He denounces “writers against the Constitution” (now called Antifederalists) and accuses them of practicing “unwarrantable arts” that include disingenuousness regarding executive power and offering counterfeit information to prey on the American people and their fear of monarchy.

He specifically calls out Cato (probably former New York Governor George Clinton) and provides a lengthy, detailed explanation of the nomination and appointments and recess appointments clauses in Article 2, Section 2.   In essence, Federalist 67 has two purposes: reprimand the critics of the Constitution and explain the constitutional limitations placed on executive power.

Hamilton writes with so much verve and occasional sting—and he admits as much in the last paragraph–that it is worth including a lengthy quote: “Calculating upon the aversion of the people to monarchy, they [Antifederalists] have endeavored to enlist all their jealousies and apprehensions in opposition to the intended President of the United States; not merely as an embryo, but as the full-grown progeny. The authorities of a magistrate, in few instances greater, in some instances less, than those of a governor of New York [here Hamilton seems to know Cato’s identity], have been magnified into more than royal prerogatives. He has been decorated with attributes superior in dignity and splendor to those of a king of Great Britain. He has been shown to us with the diadem sparkling on his brow and the imperial purple flowing in his train. He has been seated on a throne surrounded with minions and mistresses, giving audience to the envoys of foreign potentates, in all the supercilious pomp of majesty. The images of Asiatic despotism and voluptuousness have scarcely been wanting to crown the exaggerated scene. We have been taught to tremble at the terrific visages of murdering janizaries, and to blush at the unveiled mysteries of a future seraglio.”

After rebuking Antifederals, Hamilton clarifies Article 2, Section 2 and hopes to prove that, without a doubt, State legislatures—not the President–fill Senate vacancies.  Hamilton writes that only temporary appointments, including ambassadors and justices, would be made in special circumstances such as recess of the U.S. Senate.  This clearly excluded, Hamilton writes, presidential appointments of U.S. Senators.  He then refers back to Article 1, Section 3 which guaranteed States the authority to fill permanent vacancies in the Senate.  (This was changed, however, with the passage of the 17th Amendment–popular election of Senators).

Hamilton rightly criticized Cato for misinterpreting Article 2, Section 2.  Cato, however, included the recession appointment clause in his Letter #5 (Hamilton refers to this essay in Federalist 67) as a means to argue for annual Congressional elections.  In it, Cato recalled similar ideas expressed by Algernon Sidney (1623-1683), author of Discourses Concerning Politics, and Charles de Secondat, Baron de Montesquieu (1689-1755), an Enlightenment thinker who articulated the separation of powers doctrine.  Cato believed, in short, that annual elections eliminated a need for the recess appointment clause.

But back to Hamilton’s points.  Article 2, Section 2 reveals the Framers’ fear of congressional despotism and serves as a check, alluded Supreme Court Justice Antonin Scalia in Freytag v. Commissioner (1991).  This provision helped identify the source of temporary appointments of U.S. officers and avoided the possibility of legislative machinations.  As James Wilson, a leading Pennsylvania Federalist, legal scholar, and one of the first U.S. Supreme Court justices writes, in Lectures on Law (1790-92):  “The person who nominates or makes appointments to offices, should be known. . . No constitutional stalking horse should be provided for him to conceal his turnings and windings, when they are too dark and too crooked to be exposed to publick view.”  Simply put, Article 2, Section 2 ensures that Americans know who is responsible for nominating appointments described within the provision.

It must be remembered that the President nominated, but Congress approved the nomination.  Presidents have sometimes evaded this procedure, to be sure, by creating positions not listed in the provision.  Grover Cleveland did so in 1893, when appointing James H. Blount to report on the Hawaiian Revolution.  Hamilton argues in Federalist 67 that presidents do not confirm the officers listed in Article 2, Section 2. As James Iredell, a leading North Carolina Federalist reminded delegates at his state’s ratification convention, “The President proposes such a man for such an office.  The Senate has to consider upon it.  If they think him improper, the President must nominate another, whose appointment ultimately again depends upon the Senate.”  History has provided examples of implementing this governmental check: approximately 20% of Supreme Court nominations have NOT been confirmed, to name only one example.

Although Hamilton uses an accusatory tone, all involved in the ratification debates were concerned with defending liberty.  The debates prompted a more clear explanation of the Constitution’s checks and balances and limits on governmental power.  We can be thankful for that.

Thursday, July 29th, 2010

Troy Kickler is Founding Director of the North Carolina History Project.

 

Guest Essayist: Joerg Knipprath, Professor of Law at Southwestern Law School

Federalist 68 to 72 address the election and structure of the Presidency. Who better to address that than Alexander Hamilton, whose knowledge of executive power combines with an affinity for it that caused much suspicion during his political career?

The first essay is a brief foray into the Electoral College. The matter excited so little passion during the ratification debates that Hamilton barely gets his writing hand limbered up. He allows himself to wax poetic and substitute a couplet edited from Alexander Pope’s Essay on Man for some of the acerbic put-downs of his preceding efforts as Publius. Yet, the frivolity of the approach should not obscure the delicate political balances reflected in the constitutional settlement of the President’s election. The Framers’ had rejected direct popular election (an easy call due to its profound conflict with the idea of the United States as a confederated republic), election by Congress, election by the state legislatures, and election by electors selected by regional electors elected by the people (Hamilton’s multi-layered proposal).

The Framers wanted at once to have an energetic executive and to prevent the emergence of an American Caesar. The first would be accomplished by unity in the office, the latter through, among other things, care in the selection of the person. They also were deeply fearful that some foreign power might place a Manchurian Candidate among the presidential contenders. Hamilton mentions that concern in his defense of the system, a concern also reflected in the requirement that the President be a natural-born citizen. This was no small matter to the Framers. There were various plots and other connections between foreign agents and American politicians and military officers (the Wilkinson/Burr cabal with Spain, for example). Moreover, these kinds of intrigues to place a foreigner in executive office were familiar, both because they were common abroad, and because of the Confederation Congress’s offer in 1786, quickly withdrawn, to the republican-minded Prince Henry of Prussia to become regent of the U.S.

The Framers faced several practical problems. Every efficient electoral system has to provide for a means of nominating and then electing candidates. Moreover, civil disturbances over what is often a politically heated process must be avoided. There must be no taint of corruption. The candidate elected must be qualified.

As to the first, the Electoral College would, in many cases, nominate multiple candidates. Electors would be chosen as the legislatures of the states would direct. Though the practice of popular voting for electors spread, not until South Carolina seceded from the Union in 1860 did appointment by the legislatures end everywhere. Once selected, the electors’ strong loyalties to their respective states likely would cause the electors to select a “favorite son” candidate. To prevent a multiplicity of candidates based on state residency, electors had to cast one of the two votes allotted to each for someone from another state. It was expected that several regional candidates would emerge under that process. There likely would be no single majority electoral vote recipient, at least not after George Washington. The actual election of the President then would devolve to the House of Representatives, fostering the blending and overlapping of powers that Madison extolled in Federalist 51.

That last step corresponded to the Framers’ experience with the election of the British prime minister and cabinet, and with the practice of several states. However, consistent with the state-oriented structure of American federalism, such election in the House had to come through a majority of state delegations, not individual Congressmen. Though modified slightly by the Twelfth Amendment as a result of the deadlock of 1800, this process is still in place.

The Electoral College also was to be the mediating device that would balance the desire for popular input with the realistic concern that a direct popular vote would promote candidates with “talents for low intrigue, and the little arts of popularity.” Hamilton, a skilled in-fighter, possessed very sharp elbows politically, but lacked those particular talents and despised them in others. As John Jay writes in Federalist 64, the Constitution’s system would likely select those most qualified to be President. Augmented by the Constitution’s age requirement for President, the electors are not “liable to be deceived by those brilliant appearances of genius and patriotism, which, like transient meteors, sometimes mislead as well as dazzle.”

Having the voters select a group of electors, rather than the President directly, would also calm the political waters. By making that election something other than a vote about particular candidates, the process would encourage reflection and deliberation by voters about the capacity for reasoned judgment of the electors chosen. The smaller number of wise electors, in turn, would exercise that judgment free from popular passion.

There is also the problem of corruption of the electors. Every polity must address that. The Republic of Venice had a truly byzantine system of election and selection by lot of those whose sole responsibility it would be to elect the Doge (the executive). The sheer number of participants and the unpredictability of the eventual identity of the Venetian electors made vote-buying, influence-peddling, and intimidation impractical. In Federalist 68, as well, Hamilton assures the reader that, in the American system, corruption and the influence of faction are avoided by the temporary and limited duty of the electors, the disqualification of federal office holders to serve, the large number of electors, and the fact that they meet in separate states at the same time. Presumably, those protections fall away when the House elects the President. But Congressmen have to worry about re-election and, thus, want to avoid corrupt bargains that are odious to the voters.

Though the constitutional shell remains, much of the system operates differently than the Framers hoped. The reason is the evolution of the modern programmatic party, that bane of good republicans, which has replaced state loyalties with party loyalties. The Framers thought they had dealt adequately with the influence of factions in their finely-tuned system. As modern party government was just emerging in Britain and—in contrast to temporary and shifting political factions—unknown in the states, the Framers designed the election process unprepared for such parties.

Today, the nominating function is performed by political parties, while election is, in practice, by the voters. Elections by the House are still possible, if there is a strong regional third-party candidate. But the dominance of the two parties (which are, in part, coalitions of factions) suppresses competition, and the last time there was a reasonable possibility of electoral deadlock was in 1968, when Alabama Governor George C. Wallace took 46 electoral votes. Mere independent national candidacies, such as that of Ross Perot in 1992, have roughly similar levels of support in all states and are unlikely to siphon electoral votes and block the usual process.

Parties have had a beneficial effect in that they have prevented repetitions of the debacles of 1800 (when, due to the tie vote between Jefferson and Burr, it took the House 36 ballots and probable political intervention by Hamilton on the former’s behalf to resolve the election) and of 1824 (when the election dominated by just the regional candidacies anticipated by the Framers was thrown into the House and extensive bargaining precipitated charges of corruption that stymied the J. Q. Adams presidency). Had parties not emerged to provide necessary lubrication, the creaky constitutional machinery well might have had to be reformed. Though they have smoothed the process, parties arguably also have promoted the very evils (other than foreign intrigue) that Publius assured his readers were avoided under the electoral system designed by the Framers.

At the same time, the emergence of modern political parties has not made the Electoral College obsolete, as it still promotes important values. It reinforces the founding principle that the U.S. is a confederated republic and not a consolidated national government, as analyzed so persuasively by Madison in Federalist 39. Despite the occasional misfire, as in the election of 2000, the Electoral College often gives the narrow victor in the popular vote a mandate through a significant electoral college majority. The need to find a lot of electoral votes to overturn such a result reduces the likelihood of persistent challenges. Elections such as 1948, 1960, 1968, and 1992 come to mind. Proposals to change or abolish the Electoral College have appeared frequently since the Constitution’s adoption and are of predictable types. But they always lose steam, as there has been no showing that they will serve republican values better than the current system. Indeed, efforts to change the system have declined in the last half century, even after the contested election of 2000, a testimony to the enduring legitimacy of the Electoral College.

Friday, July 30th, 2010

An expert on constitutional law, Prof. 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.  Prof. Knipprath has also spoken on business law and contemporary constitutional issues before professional and community forums.  His website is http://www.tokenconservative.com

 

The Powers of the President, From the New York Packet (Hamilton) – Guest Blogger: Joerg Knipprath, Professor of Law at Southwestern Law School

In Federalist 69, Hamilton responds to the charge by the Constitution’s opponents that the president is an American king. He compares the powers of the “president of confederated America” (interesting phrasing) under the Constitution with those of the king of Great Britain and the governor of New York. He chooses the latter for several reasons. First, the essays of Publius are written during the pendency of the New York and Virginia ratifying conventions and were obviously intended in the first instance to influence those closely-fought skirmishes.

Second, Hamilton was deeply involved in state politics as a member of the downstate faction that favored both the Constitution and, later, the Federalist Party. Though it is hard to believe today, New York City politically was, in many ways, a Tory town. It was a hotbed of Loyalist sentiment during the Revolutionary War, so much so that the British made it their headquarters. Hamilton was intimately familiar with the operation of his state’s government and, given the emerging significance of the city and state, would  find New York’s system more important than others’.

Third, the governor of New York was a rather strong chief executive compared to the state governors at the time. Comparing the president’s powers favorably to those of a republican American state executive would resonate particularly well with the persuadable delegates by avoiding charges that comparing the prerogatives of the president to those of the British monarch was irrelevant to the cause, as no American king was to be crowned.

But there is one more reason. The governor of New York, George Clinton, was the presiding officer at the convention and a staunch Antifederalist. He was also a member of the upstate Albany faction politically opposed to Hamilton. Clinton is the likely author of potent attacks on the Constitution in  “Letters of Cato.” Many historians believe that it was the publication of some of those letters that induced the Constitution’s supporters to organize the effort that became The Federalist. The executive was one of Cato’s particular concerns. In an essay published four months before Federalist 69, Cato labeled the president the “generalissimo of the nation,” assailed the scope of the president’s powers, compared those powers alarmingly with those of the king of Great Britain (especially the war power), and warned, “You must, however, my countrymen, beware that the advocates of this new system do not deceive you by a fallacious resemblance between it and your own state government [New York]….If you examine, you…will be convinced that this government is no more like a true picture of your own than an Angel of Darkness resembles an Angel of Light.” Hamilton had no choice but to respond.

The result is a brief comparative overview, the particulars of which do not matter much today, as the king’s prerogatives, already circumscribed then, are virtually non-existent now. The essay does provide an introduction to various powers of the president, most of which are in Article II of the Constitution. Hamilton will delve into greater detail of various of them over the course of Federalist 73 to 77.

The Framers saw Congress as the most dangerous branch, and the one most likely to encroach on the domain of the others. While there were dangers in an independent and powerful executive, the lessons from the Revolutionary War and life under the Articles showed the need for just such an officer. The turbulence of state governments with weak and dependent executives only proved the point. Most agreed that a strong, independent executive was needed. But, how strong?
What is significant for us is the dog that does not bark, the constitutional clauses that are not mentioned by Publius. Not long after the Constitution was approved, Hamilton used the occasion of Washington’s Neutrality Proclamation in 1793 to advance a broad theory of implied executive powers. His position, vigorously challenged by Madison during the Pacificus-Helvidius debates, was that the president has all powers that are not denied to him under the Constitution either expressly or by unambiguous grant to another branch. That approach has been used by subsequent presidents to fuel the expansion of executive power.

Article II is rather short, and the president’s powers few and specific. Beyond that, the boundaries are vague. It was broadly understood that George Washington would be the first president. The general recognition of his propriety and incorruptibility meant that he would have discretion to define the boundaries of the office. Indeed, Washington was expected to do so, and he was well aware of that responsibility. In addition to the oath of office, there are three clauses whose text suggests room for discretion. Those three, the executive power clause, the commander-in-chief clause, and the clause that the president “shall take Care that the Laws be faithfully executed,” have proved to be generous reservoirs of necessary implied executive powers.

Publius spends little time on the commander-in-chief clause, and essentially none on the others. He portrays the role of the president as if he would be confined to leading the troops in military engagements. While Washington, with Hamilton as his aide, actually dressed in military regalia and mounted up to lead troops during the Whiskey Rebellion, they soon delegated that project to General “Light Horse Harry” Lee. That is the least likely role of the president today. Indeed, even during the ratification debates, that was a questionable view not usually advocated, as it frightened republicans by blurring the line between civilian control and military command and was thought likely to lead to the election of “military chieftains.”

The executive power clause is the principal source for the president’s implied or inherent powers, those that the president’s detractors would disparagingly call royal or prerogative powers. The textual significance is that, while Article I says that, “All legislative powers herein granted shall be vested in a Congress …,” Article II declares that, “The executive power shall be vested in a President …”[italics added]. That affirmative grant to the president has to mean something, and –unlike Article I regarding Congress–it has to mean more than the powers mentioned later in the text. The question ever since has been, “Just what does it mean?” Presidents have massaged that ambiguity and the flexibility of the other elastic clauses mentioned to act unilaterally, as necessity demands, usually in military affairs, foreign relations, and national security matters. Executive unilateralism came under particular scrutiny by Congress, the courts, the academy, and the media during the Bush(43) administration, though interest in that topic has slackened since the election of 2008–perhaps not coincidentally.

Not surprisingly, as advocate for the Constitution’s adoption, Hamilton does not spend time defending, or even recognizing, the theory of implied executive powers that he embraced soon thereafter. The enumeration of specific limited presidential powers and Hamilton’s soothing interpretations in Federalist 69 do not give due credit to the possible sweep of the executive office. His next essay presents a more forthright defense of the need for an energetic executive.

An expert on constitutional law, Prof. 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.  Prof. Knipprath has also spoken on business law and contemporary constitutional issues before professional and community forums.  His website is http://www.tokenconservative.com

 

Guest Essayist: Joerg Knipprath, Professor of Law at Southwestern Law School

Federalist 70 is the heart of Hamilton’s investigation of the nature of executive power. Publius returns to “energy,” a theme that he has addressed frequently in his essays as a necessary attribute of government generally, and the Union in particular. As executive power is the essence of government, energy is the essence of executive power. Energy in the executive produces vigor in the administration of law and expeditiousness in response to necessity. Too much energy, however, can threaten republican government and personal liberty. The secret is to find the constitutional version of Aristotle’s golden mean.

The Antifederalists had a lavish panorama of historical examples to illustrate the dangers of energetic executives. They proposed a multiple executive, instead, examples of which were spread throughout history, while others were close at hand in the states. Multiple executives are of several types. One, such as the consuls and tribunes of Rome or the kings of Sparta, are of equal dignity and can veto each other’s acts. Another, more favored by the states and based on the republican variant of the old British model, involves a governor-and-council structure.

There are others, not mentioned in Federalist 70. One is the modern British cabinet model, where ministers hold their portfolio independent of the “prime” minister through election by the party. Formally, they are the monarch’s ministers, but today this is a quaint fiction, as the monarch reigns as head of state, but does not rule. An American version of this can be found in the governments of many states, where various executive officials are elected independent of the governor. Those officials, like the California Attorney General, Secretary of State, and others, derive their powers directly from the state constitution and election by the people, not from appointment by the chief executive.

As anyone who has worked on a committee or sat in a meeting knows, the more people there are, the less of substance gets done, and the exponentially longer it takes to do so. Veterans of faculty meetings can bear particularly melancholy witness to those truths. Hamilton urges that multiplicity is welcome in the legislative department, where deliberation and the “wisdom of the multitude” are valuable to reach a “right” decision and to protect the rights of the minority. Indeed, haste in the passage of laws will result in badly-written legislation with unintended or—if the law is so long and complex that it has not even been read—unknown consequences, as well as in laws that may be against the people’s wishes.

In the executive, however, delays and indecision are damaging. As a member of General Washington’s staff, Hamilton personally must have been keenly aware of the incapacity of the Continental Congress and even the Board of War, its agency, to direct the war effort reliably and effectively. A multiple executive also courts the evils of faction, undermining stability. At the same time, a successful cabal among multiple executives can magnify their danger to liberty.

It is crucial, then, that the executive be unitary, to provide the requisite energy and vigor to accomplish the objectives of government expeditiously and without endangering the respect for law that haphazard and desultory administration brings. There are other benefits from a unitary executive, ones that, at the same time, provide the most effective protections of liberty. Those are transparency and accountability. It has been said that success has many parents, but failure is an orphan. Having a single decision-maker shines the light of responsibility on him: “The buck stops here.” The best protection against abuse by an overly-energetic executive is, predictably, the vigilance of the people expressed at the next election. But they cannot exercise that vigilance when multiple parties are pointing fingers at each other the way that members of Congress do when policies they have been championing become political liabilities. Nor can responsibility readily be gauged when politically tough issues are shunted onto appointed commissions, such as “deficit commissions,” whose “recommendations” are treated as binding.

Another limit on the executive comes through formal restraints. Some are institutional, such as fixed terms and removal through impeachment. Others are more in line with the “auxiliary precautions” Publius defends in Federalist 51 in connection with separation and balancing of powers. Examples are the qualified nature of the veto and the Senate’s role in approving treaties, in both of which the President is engaged in making law. With the exception of the appointment power, however, there are no formal limits on his explicit executive functions.

The objectives of executive government that Hamilton cites are instructive: Protecting against foreign attacks, securing liberty against domestic subversion, protecting property against riots and insurrection, and administering the law in an impartial and constant manner. In this classic political minimalism, one notes the absence of the trappings of the modern administrative Leviathan that has taken over functions best left to other institutions.

Despite the assertions in Federalist 70, the nature of the executive branch was ambiguous when the government convened. Hamilton, a fan of the British political system, contributed to that uncertainty. As Treasury Secretary, he envisioned the cabinet as an approximation of the British system, with the President as chief of state and as someone who presided over the administration of policies determined by rather willful cabinet officials exercising independent authority. Due to his close connection as Treasury Secretary to Congressional policy-making (and his long personal relationship with George Washington), Hamilton envisioned himself as the prime minister in this arrangement. There was some constitutional plausibility to this conception of a moderate multiple executive, as the Constitution provides that Congress can create a limited appointment power in “heads of departments” and sets up the Senate in some ways like the governor-and-council system. The Senate not only votes to approve appointments and treaties, it technically has an “advice and consent” role that could be read as requiring formal Senate participation before the president nominates an officer or makes a treaty.

Several developments arrested any significant movement in that direction. Textually, the Constitution vests the executive power entirely in the President, subject only to specified limitations, a point Hamilton himself urged further in his 1793 Pacificus essays during the debates over the Neutrality Proclamation. Politically, Hamilton left the Cabinet in 1795, reducing his influence, a trend that was accelerated when his patron, President Washington, left two years later. Even while Hamilton was in the Cabinet, Washington was not the type of person content to play a passive role. He favored a vigorous presidency, and it was clear that, while he listened carefully to his officials, he made the decisions. The Senate-as-council role was buried when Washington, after one soured attempt at consultation before treaty negotiations in 1789, refused to set foot in the building again. Washington’s presidency was intended to help define the ambiguous contours of the president’s powers, and he set the office firmly on the course of the unitary executive.

As a functional constitutional matter, the issue was settled over the course of the debate over the president’s power to fire executive officials at will. A presidential removal power is not specified in the Constitution, so it has to be implied from other powers. Though Hamilton wanted a strong executive, he appears to have favored the view that the president’s power to remove officials can only come from his power to appoint. As the latter requires Senatorial consent, so must the former, a position Hamilton endorses in Federalist 77. The reason for his support of what at first blush appears to be a dilution of executive unity is that he liked the British style of government. Presidents could come and go, but, if a new president could not unilaterally remove members of the Cabinet, those members gained political independence. Effectively, that made them the policy-makers and administrators as long as they maintained the confidence of the Senate. With that qualification, Hamilton favored a strong, independent executive branch.

The removal power occupied the first Congress’s attention. The matter was resolved by artful language in a statute that implied that the President had the inherent executive power to remove the secretary of state. While this was a victory for the unitary executive argument, there remained ambiguities. President Andrew Jackson won a clear political victory in favor of the unitary executive doctrine by removing the secretary of the treasury when the latter disobeyed a presidential order, even though Congress had given the secretary the discretion to act as he did. Analogous to Hamilton’s implied executive powers theory of the Pacificus letters, Jackson argued that the appointment and removal powers were both executive powers that, unless expressly limited by the Constitution, belonged to the President as head of the unitary executive branch.

As the removal controversy demonstrates, the unitary executive broadly implicates separation of powers that finds concrete expression in provisions of the Constitution. If those provisions are elastic, such as the executive power clause, the “take care” clause, or the commander-in-chief clause, the line between execution of policy and legislation of policy can become blurred. The need to find limits is matched by the difficulty of doing so. Much depends in specific cases on formal precedent (legislative, executive, and judicial) and customary constitutional practice shaped by broad popular acceptance. For example, the unitary executive theory underlies doctrines of executive immunity and executive privilege. Those concepts are not expressly addressed in the Constitution but are obviously connected to an energetic executive branch and the unitary executive that animates it. Though the Supreme Court did not address executive privilege until 1974, it arose early in the Washington administration, when the President set a precedent followed by almost all his successors. In implied powers cases, the need for action often determines the outcome, and foreign relations, military affairs, national security, and emergencies define their own scope of action.

Despite Jackson’s victory and a long history in support of the unitary executive, controversy still flares occasionally. A recent challenge to the unitary executive theory has involved presidential “signing statements.” These have long been used as expressions of reservation about the constitutionality of a proposed law. Critics argue that the president can veto the bill, if he believes it to be unconstitutional. If the Congress overrides the veto, is the president then bound to enforce the bill? He is obligated to take care that the laws be faithfully executed, but there is also the long tradition of executive discretion in the enforcement of laws. Moreover, if the law invades a presidential power or is otherwise unconstitutional, the president can refuse to enforce this statute.

Laws, however, are often many-layered creations. Why should the president have to veto the whole effort just to avoid enforcing one objectionable part? A signing statement can help. In fact, the signing statement puts everyone on notice about the president’s intentions. They are constitutional because the president as head of the executive branch is independently responsible under the Constitution for the actions of the whole branch in the enforcement of laws.

The unitary nature of the executive also has been challenged by some who cite to the existence of a vast array of “independent” administrative agencies as contrary evidence. Since the 1930s, the Supreme Court has upheld Congress’s power to limit the President’s removal power in regards to officers of independent agencies. Using the unitary executive theory, presidents since Franklin Roosevelt have formally rejected the assertion these agencies are beyond the President’s removal power. Such agencies are performing executive functions and are not otherwise recognized under the Constitution as a fourth branch of government. One may wonder, though, whether any dilution of the unitary executive paradigm is really the problem. The sheer growth of government (of which administrative agencies are the most significant part) is probably more responsible for the dearth of transparency and accountability citizens endure.

Critics of the administrative state see this exception from the application of the general rules for  separation and balance of powers as more evidence that these agencies are unconstitutional. The still-growing reach of the regulatory state assures that the issue will not go away. As the matter involves fundamental and shifting boundaries between the legislative and executive domains, it is thoroughly political and admits of no definitive settlement. But the broad theory of the Constitution has been settled in favor of the unitary executive that Hamilton defends in Federalist 70 and his later writings.

Tuesday, August 3rd, 2010

An expert on constitutional law, Prof. 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.  Prof. Knipprath has also spoken on business law and contemporary constitutional issues before professional and community forums.  His website is http://www.tokenconservative.com

 

Guest Essayist: Kyle Scott, PhD, Professor in the Political Science Department and Honors College at the University of Houston

Federalist #71 continues with a discussion of the President, particularly the length of the presidential term in office. Hamilton lays out the concerns over term length at the beginning: if the term is too long the President will not do what is best for the nation but what is best for himself, and if too short, the President will have no incentive to do the job well, but merely bide his time until the end of term, but he will also be susceptible to undue influence from the people and congress if his term is not long enough. What might be surprising to some readers is that the concern is over how long the term should be where the real discussion should be on term limits. With the ability of incumbents to entrench themselves in office, it might not matter if the term is 2 years or 8 years; if the President keeps getting reelected the term in office could go on indefinitely thus bringing about the first set of negative consequences established by Hamilton. Remember, it was not until 1951 with the ratification of the 22nd Amendment that the President was limited to two terms.

However narrow-sighted #71 might appear at first blush, we should always remember that Hamilton warned in #1 that in writing he will keep his motives within the “depository of his own breast,” which means we should always be on the lookout for multiple lessons. One lesson in particular I find fascinating in #71 is his criticism of democracy. #71 is not just about how long a President should serve before coming up for reelection, but rather the competing preferences of rule by the elite or rule by the people.

In the second paragraph Hamilton mocks those who suggest the President should be moved by popular opinion. “But such men entertain very crude notions, as well of the purposes for which government was instituted, as of the true means by which the public happiness may be promoted. The republican principle demands that the deliberate sense of the community should govern the conduct of those to whom they intrust the management of their affairs; but it does not require an unqualified complaisance to every sudden breeze of passion.” The President should strive for the public good while keeping in mind that the public may not always know what is in its own good.

Hamilton would be abhorred by Bill Clinton’s “governing by the polls” in which he would pursue policies based on their popularity. Hamilton would also find it comical that we judge the quality of a sitting President by how well he does in public opinion polls. Presidents should be above such matters. Whether it is going to war in Iraq or looking to reform healthcare, Hamilton suggests that the President should not be influenced by popular opinion. While he was a member of parliament, Edmund Burke held a similar position when he said, “It is his duty to sacrifice his repose, his pleasures, his satisfactions, to theirs; and above all, ever, and in all cases, to prefer their interest to his own. But his unbiased opinion, his mature judgment, his enlightened conscience, he ought not to sacrifice to you, to any man, or to any set of men living.

These he does not derive from your pleasure; nor from the law and the constitution. They are a trust from Providence, for the abuse of which he is deeply answerable. Your representative owes you, not his industry only, but his judgment; and he betrays, instead of serving you, if he sacrifices it to your opinion.”

The opinion of the people should not guide the elected President, thus, the President should have mechanisms in place to shield him from the public’s backlash, which is why the length of the term is so important to Hamilton. If the term is too short, the President would only do what was popular.

It was not just the people who the President should be insulated from, but congress as well. If he were in office for too short of a term, the President would fall to the whim of congress and thus violate the separation of powers model borrowed from Montesquieu. But, insulating the President from congress was another way of insulating the President from the undue influence—no matter how indirect—of the people.

We should not be shocked by what we read in #71, for it is well-established that Hamilton was in favor of a strong executive. But, Hamilton’s executive is not what the Constitution gave us, nor is Hamilton’s view the predominant view. Many of the Anti-Federalists, not to mention Madison and Jefferson, were in favor of a more populist position. #71, as much as any of the others, reinforces my claim that we cannot read the Federalist as authored by one Publius just as we cannot think of the founders as one group.

Hamilton recognized the capriciousness of the people. He recognized that the people could be petty and have a short-memory, thus something like presidential authority should be institutionally defined and insulated from popular influence. I do appreciate his suspicion of the popular opinion even if he did overestimate the wisdom of the President.

Wednesday, August 4th, 2010

Kyle Scott, PhD teaches in the Political Science Department and Honors College at the University of Houston. His published research deals with constitutional interpretation and its relevance for contemporary politics. His most recent book, The Price of Politics, critically assesses the Supreme Court’s eminent domain decisions and explains the importance of property rights.

 

 

Guest Essayist: Kelly Shackelford, President/CEO of the Liberty Institute

Federalist No. 71 and 72 deal with the Office of the Executive, specifically how long the President remains in office and his re-eligibility to continue to serve in the same capacity.  While Federalist 71 takes an in-depth look at the four-year duration of the Presidential term, Federalist 72 addresses the question of a sitting President’s re-eligibility, or ability to be re-elected to subsequent terms.

In Federalist 72, Publius, in this case Alexander Hamilton, cites the two factors that the Framers of the Constitution believed should determine whether a President is eligible for re-election, and defends the Framers’ rejection of either temporary or perpetual term limits for a President.

According to Hamilton, the only two factors that should be weighed in considering the ability of a President to be re-elected are the quality of his performance as President and the approval of the voters. The four years of a President’s term should give the voters enough time to judge the abilities of a President, and the prospect of being re-elected should give the President the motivation to do a good job. In other words, Hamilton argued that the voters themselves should be the only judges of a President’s eligibility by refusing to re-elect him when his performance is no longer satisfactory.

In arguing that the voters should be the only limits on the extension of a man’s Presidency, Hamilton cites five disadvantages of excluding a sitting President from re-eligibility. The first disadvantage is that a President who is excluded from seeking office again is hampered not only in his ability to work but also in his desire to act in such a way that the voters would re-elect him given the opportunity, described by Publius as “dimunition of the inducements to good behavior.” The “lame-duck” President’s motivations to act uprightly and for the benefit of the people are severely diminished.

The second disadvantage of imposing term limits in the Executive that Hamilton pointed out in Federalist 72 is that a President with no chance of being re-elected may be tempted to usurp his office for personal gain, with an eye to the day when he will no longer serve as President. Worse, an ambitious man, forbidden to seek re-election, could resort to violence in an attempt to prolong his time in the Presidency.

Hamilton’s third and fourth disadvantages of term limits both relate to the experience that a person gains while serving as President. In short, good experience in serving as President is valuable and should not be lightly thrown aside. The good of the country demands that the people capitalize on the leadership of those who already have the experience gained from years of leading the nation.  Additionally, during times of war or crisis, continuity of leadership in the Executive may be particularly important to the safety of the nation.

Finally, Hamilton’s fifth argument against term limits is that they create constitutionally-sanctioned instability. When a new President is elected, the change in administrations creates transitional instability as the new administration must gain the experience already possessed by the outgoing administration. Moreover, the new President, seeing his election as the people’s endorsement of his ideas over his predecessors, takes responsibility for nominating many of those in charge of day-to-day operations, naturally generating instability during the transition of leadership. Consequently, Hamilton argued that one key factor in the stability of our government is the length of time that the President serves; instead of being viewed as a threat to liberty, a voter-approved extension of a President’s service is a benefit because of the increased experience of the administration.

While arguing against term limits, Hamilton points out two possible advantages to having Presidential term limits: “greater independence in the magistrate” (executive office) and “greater security to the people.” The greater independence of the executive office turns out to be easily manipulated, as a President, excluded from re-eligibility, could choose to relinquish the office to a hand-picked successor, effectively remaining a powerful voice in the administration. Additionally, a President who anticipates leaving his office of President may be less interested in fighting over important issues and making political enemies than preserving friendships and allies.

As to the people’s security, while Hamilton recognizes that the influence of a overly-charismatic President can be lessened by term limits, Hamilton points out that forcing a truly good leader out of office may be regarded as a hindrance to security and a “danger to liberty.” Taken to an extreme, it could even cause the people to reject the Constitution in favor of the leader, removing all constitutional protections granted to the people.

Since George Washington, the first President under the Constitution, stepped down after two terms in office, Americans have commonly accepted two terms as a sufficient amount of time in office for any President. Only a few Presidents have sought a third term, and only one has been successful: Franklin D. Roosevelt, our thirty-second President. Serving throughout the Great Depression and most of World War II, President Roosevelt was elected four times to the office of the President, but passed away in 1945, months after beginning his fourth term. His Presidency was unique in that the people sought the continuity of his leadership through two disasters, and supported him as President for what would have totaled sixteen years.

Following President Roosevelt’s four terms in office, the American people decided that the advantages of term limits in limiting the power of any one President outweighs the five disadvantages that Alexander Hamilton laid out in Federalist 72. In 1947, Congress passed the Twenty-second Amendment to the U.S. Constitution, limiting a President to two terms in office. The Amendment was ratified in 1951, and only two states, Oklahoma and Massachusetts, opposed the Amendment.

Today, very little debate exists over the Twenty-second Amendment and executive term limits, though various members of Congress occasionally propose legislation to repeal the Amendment.  Even now, two hundred years after President Washington stepped down after his second term, Americans generally accept the two-term limit as an adequate amount of time for a President to serve.

Thursday, August 5th, 2010

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

 

Guest Essayist: Allison Hayward, Vice President of Policy at the Center for Competitive Politics

Federalist Paper 74 appeared on March 25, 1788 – readers should recall that this is roughly 6 months after the Constitution has been sent to the states for ratification.  Only one day earlier, on March 24, Rhode Island in a popular referendum rejected the Constitution by a margin of about 10 to 1(Rhode Island eventually ratified the Constitution via convention in 1790, by a vote of 34-32).  At this point, only  six states had ratified the document.

So we can forgive Hamilton for sounding just a tad defensive in this essay.

As noted previously, Hamilton is a strong defender of executive power, so he is ready and eager to explain to readers the important principles informing his view.  He has two tasks – first, reassuring readers that the powers of the Presidency are not extreme, and the nation’s executive will not become a monarch.  Second, that to the extent the President has power to act unilaterally, it is in situations where government by committee would be intolerable.  There’s a tension between these two tasks that is evident from Hamilton’s first sentence:

“THE President of the United States is to be “commander-in-chief of the army and navy of the United States, and of the militia of the several States WHEN CALLED INTO THE ACTUAL SERVICE of the United States.” The propriety of this provision is so evident in itself, and it is, at the same time, so consonant to the precedents of the State constitutions in general, that little need be said to explain or enforce it.”

But is the power as commander-in-chief really “so evident in itself?”  The commander-in-chief power has been invoked in recent years to justify unilateral warmaking power by the Executive.  Critics of that argument note that in fact the power to declare war belongs to Congress, and is thus not solely within the President’s ambit.

In modern times, there are many foreign entanglements that involve our armed forces but aren’t “wars.”  To be sure, the President’s ability to send American troops into combat would not mean much without a standing army — an institution the Federalists promised would not come to pass.  What powers should the President have in these limited engagements — today?  Should Congress be able to undo Presidential deployments, or condition them on Congressional approval, such as in the War Powers Act?  When the President and Congress disagree, who decides which side wins?  Do we really want the Supreme Court involved?

Hamilton also raises and defends the Presidential power of the pardon.  Hamilton argues that the pardon is necessary to temper the severity of criminal law, and the President is the best positioned individual to grant it – and be held accountable to the people for having done so.  In language that probably seems a little odd to us today, Hamilton observes that the pardon will help preserve domestic tranquility, even in cases of treason:

“On the other hand, when the sedition had proceeded from causes which had inflamed the resentments of the major party, they might often be found obstinate and inexorable, when policy demanded a conduct of forbearance and clemency. But the principal argument for reposing the power of pardoning in this case to the Chief           Magistrate is this: in seasons of insurrection or rebellion, there are often critical moments, when a welltimed offer of pardon to the insurgents or rebels may restore the tranquillity of the commonwealth; and which, if suffered to pass unimproved, it may never be possible afterwards to recall.”

Again, this is a striking passage that should remind us all of the tenuousness of the new nation, and the feeling among the founders that this experiment could quite easily go wrong.  I was reminded of this when looking over the ratification timeline in preparing this blog.  I had forgotten that as a precondition to entering the nation, Vermont had to enter into a peace treaty with New York.

To me, that sounds like a premise for a comedy, perhaps with Ben and Jerry declaring independence from the United States and commissioning a new national anthem from Phish.  But at the founding, tensions between states were no laughing matter.  The legacy of violence and mistrust was real.  In fact the first use of the pardon was for participants in the Whiskey Rebellion, for Washington perhaps sensed the need for just such a “welltimed offer of pardon” to “restore the tranquillity of the commonwealth.”

The Presidential pardon in modern times has had a mixed record. The Department of Justice typically makes clemency recommendations to the President, but the President is not bound to follow them.  President Gerald Ford’s pardon of Richard Nixon (before indictment or conviction for anything) may have spared the nation an ugly incident, but also may have cost Ford his reelection in 1976.

Critics accused President Clinton of rewarded a campaign supporter by pardoning fugitive financier Marc Rich.  Classes of individuals have been pardoned too, most notably all Confederate soldiers, and all Vietnam draft dodgers.  Hamilton correctly observed that the pardon, as an aspect of law enforcement, could mollify and temper the force of criminal law.

But it is less clear to what degree Hamilton could see – or wanted to acknowledge – the Presidential pardon as a political favor.

Monday, August 9th, 2010

Allison Hayward is the Vice President of Policy at the Center for Competitive Politics

 

 

Guest Essayist: Nathaniel Stewart, attorney and fellow at the Ashbrook Center for Public Affairs

In Federalist #75, Alexander Hamilton explains and defends the power of the President to make treaties with foreign nations “by and with the Advice and Consent of the Senate.”  The treaty-making power granted in Article II section 2 involves, as Hamilton observes, another example of an “intermixture of powers,” a power shared by the President and the smaller house of Congress.

Hamilton acknowledges four arguments levied against this particular arrangement and addresses them each in turn.  First, there are those who would vest the power in the President alone.  Second, there are some who called for the power to reside only in the Senate.  Still others called for the House of Representatives to hold a share of the treaty power.  And finally, having answered these objections, Hamilton explains why treaties may be approved by only “two-thirds of the Senators present,” rather than two-thirds of the whole body.

Hamilton begins with the initial explanation that the power to make treaties does not readily fit within either the legislative or administrative functions of government.  Here, Hamilton reminds his audience of the precise functions of these two branches of government, and distills them neatly:  “The essence of the legislative authority is to enact laws, or, in other words, to prescribe rules for the regulation of society; while the execution of the laws and the employment of the common strength, either for this purpose or for the common defense, seem to comprise all the functions of the executive magistrate.”

But the power to negotiate a treaty, Hamilton argues, does not involve enacting a new law or enforcing an old one.  Treaties are not laws, they are contracts.  They enjoy “the force of law” derived from “the obligation of good faith,” but they are not laws as between a sovereign and its subject, or rules which must be obeyed.  Rather, a treaty is a contract between two sovereigns, and thus, the treaty-making power is a distinct and peculiar function, neither purely legislative nor wholly administrative.  This provides the foundation for Hamilton’s contention that the treaty power be shared between the branches, rather than vested in only one.

Turning then to the contention that the President alone should wield this power, Hamilton repeats the common refrain that history proves power to be all too tempting for men to resist.  The hereditary monarch, he notes, has too much at stake – given the length of his lifelong reign – to risk being corrupted by a foreign nation.  But such is not the case with a man elected for a mere four years; a man who may have risen to the rank of President from a more modest station, and for whom a foreign allegiance might then prove quite valuable when his term of office has expired.  To entrust this great authority in such an elected official would be “utterly unsafe and improper,” lest he be “tempted to betray the interests of the state to the acquisition of wealth.”

But this does not mean that the power should rest with only the Senate, for this would deprive the President of too much authority in foreign relations and negotiations.  The President is to enjoy “the confidence and respect” of other nations, and the Senate, as a legislative body, is unlikely to command such foreign confidence.  Thus, the country would lose the benefit of the President’s unique position among the nations were he to be excluded from the treaty process.  For Hamilton it is then clear that the “greater prospect of security” for the country lies in the joint sharing of the treaty-making power.

Despite the prudence of this “intermixture” between the Senate and the President, Hamilton resists the call to include the House of Representatives in the treaty power.  Treaties, he argues, require a set of qualities which cannot be expected from such a large and “fluctuating” body of representatives.  Treaties require “accurate and comprehensive knowledge of foreign politics; a steady and systematic adherence to the same views; a nice and uniform sensibility to national character, decision, secrecy, and dispatch.”  The design of the House of Representatives is not conducive to these qualities and would only muddy the waters at potentially critical and inopportune moments of decision.  While we might wonder today whether even the Senate possesses the requisite “uniform sensibility” that Hamilton envisioned, one would be hard pressed to quibble with his foresight in resisting the call to extend the treaty-power to the ever-ephemeral House of Representatives.

Finally, the author takes up the challenge that treaties ought to be ratified by two-thirds of the whole Senate, rather than merely “two-thirds of those present.”  Anytime a super-majority, like two-thirds, is required for an approval, the matter is increasingly beholden to the will of a select minority, rather than that of the majority.  Hamilton rightly recognized that the treaty-making power would be no exception.  Requiring two-thirds majority of the entire body to affirm a treaty risked the possibility that a minority of Senators could defeat the measure simply by not appearing to vote on it.  On the other hand, such gamesmanship would be discouraged and unrewarded by allowing the treaty to pass with the support of only a super-majority of those present.

The treaty-making power is a shared power.  Not a legislative function, nor an executive’s role, a treaty represents a bond between two sovereign powers, likely the culmination of a negotiation, a settling of terms.  It is for this reason that Presidents must enjoy enough power to broker the terms of the agreement, while a discrete and noble body of another branch ensures that such power is only invoked in the best interests of the nation and its security.

Tuesday, August 10th, 2010

Nathaniel Stewart is an attorney in Washington, DC, and a fellow at the Ashbrook Center for Public Affairs

 

 

Federalist No. 76 examines the appointing power of the Executive Branch.  One of our blog commenters, Jimmy Green, summed up this paper well today:

“To keep the Executive somewhat honest the legislative branch must consent on appointments.”

This same subject was discussed in Federalist 66, in the context of powers of the Senate:

“It will be the office of the President to NOMINATE, and, with the advice and consent of the Senate, to APPOINT. There will, of course, be no exertion of CHOICE on the part of the Senate. They may defeat one choice of the Executive, and oblige him to make another; but they cannot themselves CHOOSE, they can only ratify or reject the choice of the President. They might even entertain a preference to some other person, at the very moment they were assenting to the one proposed, because there might be no positive ground of opposition to him; and they could not be sure, if they withheld their assent, that the subsequent nomination would fall upon their own favorite, or upon any other person in their estimation more meritorious than the one rejected. Thus it could hardly happen, that the majority of the Senate would feel any other complacency towards the object of an appointment than such as the appearances of merit might inspire, and the proofs of the want of it destroy.”

Publius is saying that the Senate’s role in the Presidential appointment process is to decide if the President’s nominee is fit for the position nominated, on a merit basis, i.e. is the person qualified to serve in the position for which he or she is nominated?

How is this relevant today? With our newest Supreme Court Justice Elena Kagan’s confirmation in the news, it’s easy to answer that question!

Historically, there have been two views regarding the role of the Senate in the Presidential nomination process of Supreme Court Justices. The two quotes below are excellent examples of each view:

Senator Orrin Hatch stated in 1993:

“If a nominee is experienced in the law, highly intelligent, of good character and temperament, and — most important — gives clear and convincing evidence that he or she understands and respects the proper role of the judiciary in our system of government, the mere fact that I might have selected a different nominee will not lead me to oppose the President’s nominee.”

 

Senator Barak Obama stated in 2006:

“There’s been a lot of discussion in the country about how the Senate should approach the confirmation process. There’s some who believe that the President, having won the election, should have complete authority to appoint the nominee, and that the Senate should only examine whether or not the Justice is intellectually capable and is nice to his wife, or she is nice to her husband. That, once you get beyond issues of intellect and personal character, then there shouldn’t be further question as to whether the Judge should be confirmed. I disagree with the view.  I believe that the Constitution calls for the Senate to advise and consent, that, meaningful advice and consent includes an examination of a judge’s philosophy, ideology, and record.”

Which of the above views have prevailed over the past few years? Examining the partisan breakdown of recent Supreme Court nominations provides at least a partial answer to that question.

President Clinton’s Supreme Court nominee, Ruth Bader Ginsburg, was confirmed in 1993 by a vote of 96-3, supported by 41 of 44 Senate Republicans, 93%.

President Clinton’s Supreme Court nominee, Stephen Breyer, was confirmed in 1994 by a vote of 87-9, supported by 33 of 42 Senate Republicans, 78%.

President Bush’s Supreme Court nominee, John Roberts, was confirmed in 2005 by a vote of 78-22, supported by 22 out of 44 Democrats, 50%.

President Bush’s Supreme Court nominee, Samuel Alito, was confirmed in 2006 by a vote or 58-42, supported by 4 out of 44 Democrats, 9%.  One Senate Republican voted against Alito.

Were Justice Roberts and Justice Alito less qualified than Justice Breyer and Justice Ginsberg, or was an ideological standard applied by the Senators who chose to vote against Justice Roberts’ and Alito’s nominations?

President Obama’s Supreme Court nominee, Sonia Sotomayor, was confirmed in 2009 by a vote of 68-31, supported by 9 out of 40 Republicans, 22%.

Last week President Obama’s Supreme Court nominee, Elena Kagain, was confirmed by a vote of 63-37, supported by 5 out of 41 Republicans, 12%.  One Democrat voted against Kagan.

This Senate.gov weblink: http://www.senate.gov/pagelayout/reference/nominations/Nominations.htm provides an interesting look at our country’s history of Supreme Court nominations.  Scrolling through these votes, a more partisan voting trend has emerged in very recent years.  While Judge Bork was an anomaly, three Justices in the Reagan years were confirmed unanimously: Scalia, O’Connor and Kennedy, with Kennedy being the last Justice to be confirmed unanimously, in 1987.  The attitude of the Senate regarding their role in the appointments process seems to have shifted into partisanship over the last 20+years.

What is the Senate’s proper role in the Presidential Appointment process?

Publius answers that question this way:

“To what purpose then require the co-operation of the Senate? I answer, that the necessity of their concurrence would have a powerful, though, in general, a silent operation. It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity. In addition to this, it would be an efficacious source of stability in the administration.”

Partisanship in the nomination process is difficult to dial back once allowed to seep in.  Is it in our Nation’s best interest for the Senate to adopt the attitude articulated by Senator Hatch in 1993 or the views articulated by President Obama in 2006?

I believe the founders intended the Senate to advise and consent based on their assessment of a nominee’s qualifications more than ideology. However, unless both parties can show evidence of dropping the partisan, ideological criteria for evaluating the President’s nominees – any President’s nominees – it is certainly not in the interest of one party to evaluate nominees based on qualifications while the other party uses an ideological measuring stick.

“We the people,” must educate ourselves regarding our founders’ intentions, formulate our opinion, and make our voice heard through our vote.   As Janine Turner, my good friend and Constituting America founder and co-chair likes to say, “Your vote is your voice.” Use it!

Good night and God Bless,

Cathy Gillespie
Wednesday, August 11th, 2010

 

Guest Essayist: Gary McCaleb, Senior Counsel with the Alliance Defense Fund

As a constitutional attorney asked to chat a bit about Federalist No. 76, I certainly did not expect to use knowledge gained as a U.S. Navy sailor in the 1970s from a book published in 1890 about history from the 1660s to help me explain a constitutional commentary drafted in 1788—but I will.

Federalist No. 76 recognizes that every government needs a stable of civil servants, who in turn must be secured for service with reasonable dispatch and with some assurance of quality.  The paper plays off a consistent theme of our founding era—to balance each grant of authority (and concomitant power) with some restraint on the authority.

In a nutshell, Hamilton takes the familiar balancing of powers among the executive, judicial, and legislative branches down a notch as he considers how to expeditiously staff the government with high quality persons, while restraining the appointment power lest it be used by the President to untoward ends.

Hamilton broadly considers the benefits and risks of vesting the appointment power in a single person; or in a larger group of representatives, or in some mix of the two.  The idea of a purely democratic appointment system he rejected out of hand—the distances and slow communications of the time precluded that option.  And while there is great efficiency in granting one person the power to appoint, that vests too great a power to shape the government in the image of one man.

The Constitution, Hamilton notes, splits the difference—the President has complete discretion to nominate, subject only to the “advice and consent” of the Senate.  This secures the efficiency of centralizing these key selections, while providing a modicum of restraint via the Senate’s review.

As Hamilton predicted—and subsequent practice confirms—the Senate seldom shoots down a Presidential nominee, for many reasons:  Most nominations are simply uncontroversial, so review is superfluous.  And often, nominees intended to advance an agenda don’t always do so once in office; uncertainty about future performance complicates the review.  Worse, for the controversial nominations, the Senate cannot be sure that refusing consent won’t lead to an even less palatable nominee the next time around.

Thus, Hamilton must answer the question:  “To what purpose then require the co-operation of the Senate?”  His answer:  “[T]hat the necessity of their concurrence would have a powerful, though, in general, a silent operation.”  In short, Hamilton sees the potential for Senatorial brouhaha, or even denial of consent, as a political risk that by its very presence tempers the discretion of the Chief Executive.

What Hamilton propounds in political terms sounds like a peaceful application of classic concept of naval warfare—an idea called the “fleet in being.”

That concept was popularized in a seminal work on global military strategy, Alfred Thayer Mahan’s The Influence of Sea Power upon History, 1660-1783, published in 1890.  In assessing how sea power impacted the matters of man, Mahan found that political and military decisions could be profoundly impacted by the mere presence of a small but competent naval force.

The classic example arose in World War I, when the small German High Sea Fleet did little but sit in port—yet the constant threat that it may sally forth and salvo forced the British to commit significant combat resources to contain the German fleet in its harbor.  As warfare modernized and combined arms became the norm, the “fleet in being” was renamed “force in being,” and the principle applied more widely.

Thus, the mere fact that the Senate must review the nominations serves as some check to the President’s fearsomely strong nomination power—even if the votes against the President “never leave port,” so to speak.

Senate review means that with each nomination that proves dubious, contentious, or both, the President must spend his political capital.  When the highest profile nominations come, he must weigh the risk of pushing his agenda with the risk of having his ambitions die in the fire of a dissenting Senate, or expending the last of his capital in the fight.  Given the politicization and profile of the most important nominations (so much so that a new verb—“borking”—came into the American lexicon), the wise President will pull back from fringe politics.

The balance is imperfect, but that was likely intentional—to grant greater review power would have frustrated every administration’s efforts to staff the government.  While this undoubtedly permits a degree of undue partisanship in the process, the ultimate impact is mitigated by the higher level separation of powers.  In sum, the system performed very much as predicted, which affirms the wisdom of our Founders in drafting the Constitution.

Wednesday, August 11th, 2010

Guest Essayist: Steven H. Aden, Senior Legal Counsel with the Alliance Defense Fund

Federalist 77 “complete[s] a survey of the structure and powers of the executive department,” which, Hamilton urged, “combines, as far as republican principles will admit, all the requisites to energy” the Federal Executive would require to fulfill the duties of his office.  Anticipating the skepticism of his audience, the pre-eminent Federalist added one “remaining inquiry”: “Does it also combine the prerequisites to safety, in a republican sense – a due dependence on the people, a due responsibility?”  Not to worry, Hamilton soothed:  “In the only instances in which the abuse of the executive authority was materially to be feared [i.e., appointments], the Chief Magistrate of the United States [i.e., the President] would, by that plan, be subjected to the control of a branch of the legislative body. What more could be desired by an enlightened and reasonable people?”

Hamilton’s rhetorical caution with his Empire State audience may have stemmed from the depth of contention the issue of appointments had engendered in the Constitutional Convention.  The final compromise settled on language that reflected the desire to maintain a strong separation between the powers of the Executive and Legislative branches.

The late Justice Byron White, writing in Buckley v. Valeo (1976), in which the Supreme Court held that Congress had violated the Appointments Clause by constituting the Federal Election Commission with a majority of commissioners appointed by Congress instead of the President, explained the importance of the clause to the Federal system and ultimately the approval of the Federal Constitution:

The decision to give the President the exclusive power to initiate appointments was thoughtful and deliberate. The Framers were attempting to structure three departments of government so that each would have affirmative powers strong enough to resist the encroachment of the others. A fundamental tenet was that the same persons should not both legislate and administer the laws.

The Convention proposed, in alternative versions, that both Houses of Congress should appoint judicial officers, then that the Senate should do so.  Judicial and Executive officers were finally lumped together under the Appointments Clause, with the presumption being that the Judiciary being (in Hamilton’s phrase) “the least dangerous branch (Federalist 78),” Congress’ oversight of the President’s power of appointing federal judges would suffice for checks and balances over that branch.

Time and experience have revealed both the wisdom of the balance the Framers struck by the Appointments Clause and their myopic failure to foresee the real dangers posed by a life-tenured federal judiciary.  As to the latter, check Judge Vaughn Walker’s opinion in the Proposition 8 case last week, cavalierly tossing aside millennia of moral teaching on marriage as “irrational” and “discriminatory.”  As to the former, Executive nominations have rarely been voted down, perhaps demonstrating the “steady administration” inherent in a system in which “the circumstances attending an appointment…would naturally become matters of notoriety,” as Hamilton put it in Federalist 77.  One truly “notorious” exception was that of Senator John Tower, a powerhouse of American politics who was denied an appointment as Secretary of Defense 1989 due to a confluence of political and personal factors that seemed to bear out the wisdom of conferring the power of “salutary restraint” on Congress over presidential nominations.  The Left thought he had too many ties to defense contractors, and the Right condemned his extramarital infidelities, heavy drinking, and pro-abortion views.  Presuming a relative equipoise of power in the Senate (absent today), when both sides of the aisle have reasons to deny an appointment, it suggests that – as “Publius” predicted – the Executive is obliged to nominate moderate candidates to guide federal policy and programs, keeping the ship of state (in theory) more or less on course.

As to the hysterical political theater the Supreme Court confirmation process has become, that of course began with the nomination of eminent jurist Robert Bork to the  Supreme Court in 1987, whom Senate partisans voted down in part because of his perceived role in arrogating too much authority to the Executive Branch.  That story begins much earlier, but I will tell it as a kind of morality play whose lesson is that in the pas-de-trois dance for power between the three “co-equal” branches, “what goes around comes around,” and the consequences for overreaching may be severe.

Among President Richard Nixon’s manifold abuses of power, none inflamed his political enemies more than the “Saturday Night Massacre” of October 1973.  Nixon had appointed a Special Prosecutor for the Watergate Scandal, Archibald Cox, as a result of a promise his Attorney General, Elliot Richardson, had made to the Senate Judiciary Committee.  When Cox subpoenaed Nixon’s Oval Office tapes, Nixon ordered Richardson to fire him.  After all, Nixon reasoned, Cox was an “inferior officer,” whose tenure was at the pleasure of the Administration.  Richardson refused to fire Cox, though, and resigned in protest.  Nixon then ordered the Deputy Attorney General to fire Cox, and he likewise refused and resigned.  Nixon turned to next-in-line Robert Bork, then Solicitor General.  Bork was of the opinion that as a creature of the Executive, the special prosecutor was an “inferior officer” who served at Nixon’s pleasure, and he accordingly fired him.  In the brouhaha that ensued, Congress re-asserted its power over the Executive Branch by passing the Independent Counsel Act, restricting the authority of the Executive over congressionally authorized investigations.

On October 23, 1987, the Senate rejected Judge Bork’s confirmation after a heated public debate over his political positions.  Among the chief objections was that by backing Nixon’s authority, Bork had shown himself, in the words of the New York Times, “an advocate of disproportionate powers for the executive branch of Government, almost executive supremacy.”  A decade later, Independent Counsel Ken Starr’s investigations into President Clinton’s improprieties led in turn to the Supreme Court’s unanimous decision in Paula Jones v. William Clinton that the separation of powers doctrine did not absolve a sitting President from having to respond to charges of sexual harassment by a low-level state employee.  Jones v. Clinton may have marked the low ebb of Presidential power (though it was perhaps also the high water mark for the rule of law).  Over two decades and both Republican and Democratic administrations, the Legislative and Judicial branches had taken advantage of the character flaws of Chief Executives to substantially reduce the President’s authority.  Conversely, the power of the unaccountable Supreme Court and the uncontrollable Congress appears to be on the rise.  One hopes that the American people will soon find ways to exert a “salutary restraint” on these branches as well, and begin to return constitutional authority to the People, with whom it truly resides.

Thursday, August 12th, 2010

Steven H. Aden is senior legal counsel with the Alliance Defense Fund, a legal alliance that employs a unique combination of strategy, training, funding, and litigation to protect and preserve religious liberty, the sanctity of life, marriage, and the family.

 

Guest Essayist: Brian Faughnan, Managing Editor of LibertyCentral.org

In Federalist No. 78, Alexander Hamilton explores the proper role of the American judiciary, as laid out in the proposed Constitution. At the time, it was widely recognized that a major defect in the Articles of Confederation was the lack of a federal judiciary. And as Hamilton points out, the only real dispute is about the “manner of constituting” this proposed judiciary and “to its extent.”

Hamilton then lays out a recipe for an independent judiciary to which we should all pay particular attention today.  In light of recent Supreme Court nominations, as well as the different states’ battles over methods of judicial selection, it is critical to understand the key elements our Founders considered necessary for creating and maintaining a judiciary that respects its independent, yet limited, role.

Hamilton supports the lifetime appointment of federal judges, subject, of course, to “good behavior,” because he understands that a properly-functioning and independent judiciary “will always be the least dangerous to the political rights of the Constitution.”  To Hamilton, lifetime appointment was a critical component of an independent federal judiciary:

Alexander Hamilton, in Federalist No. 78, argued that a judiciary appointed for life constituted the citadel of the public justice and public security because to subject the judiciary to periodic appointments or elections might lead judges to decide cases to curry popular favor, instead of objectively applying the law.

John L. Dodd et al., The Case for Judicial Appointments, The Federalist Society, Judicial Appointments White Paper Task Force (2003), available at http://www.fed-soc.org/publications/pubid.89/pub_detail.asp.

Placing even more faith in the restraint of an independent judiciary, Hamilton also writes that “the judiciary is beyond comparison the weakest of the three departments of power.”  To support this, he points out that judges can’t control spending or decisions relating to war; these are better left to the Executive.  He also highlights that judges can’t direct “the strength or…wealth of the society,” another example of why the judiciary couldn’t possibly be “dangerous.”  One key part of Hamilton’s analysis is that, while courts have a duty to declare unconstitutional pieces of legislation void, their power is never to be interpreted as great than that of the legislature.

So, if judges are supposed to be so innocuous, what accounts for the long-standing debate about judicial activism?

The reason for this is fairly complex, but it can be boiled down to one particularly important observation.  As Attorney General Ed Meese recognized, “the Constitution enabled the government to control the governed, but also obliged it to control itself.”  Meese recognized that the judiciary’s departure from interpreting the original intent of the Constitution has fundamentally disabled that branch from controlling itself.   In Meese’s words, “A jurisprudence seriously aimed at the explication of original intention would produce defensible principles of government that would not be tainted by ideological predilection.”  In other words, original intent leads to controlled judges.

The American Left has almost uniformly adopted Justice Powell’s view that “the judiciary may be the most important instrument for social, economic and political change.”  To them, the judiciary’s “independence” hinges on creating affirmative rights when it sees fit, rather than defending those negative liberties that our Constitution recognizes.  No longer do we follow Hamilton’s model of a constrained, independent judiciary.  Instead, we see a judiciary that bows to the goals of special interested groups and creates its own rules of the game.  For liberals, the Constitution is no longer a rigid boundary around a judge’s decision-making; it is merely a tool that can be warped and bended to reach a desired social, economic, or political goal.

It was this departure from Hamilton’s recipe that left Americans with the legacy of a radical out-of-control judiciary.  The branch that should be the weakest of the three now too often attempts to overpower the political branches whenever it wants to do so.

The good news is that Hamilton and his fellow Federalist Paper authors, James Madison and John Jay, left us with a guide for having a judiciary that is, truly, the “least dangerous branch.”  The answer is self-constrained judges with respect for the parameters of the Constitution.

Friday, August 13th, 2010

Brian Faughnan is the Managing Editor of LibertyCentral.org

 

Guest Essayist: Kevin Theriot, Senior Counsel with the Alliance Defense Fund

A crucial aspect of our republican form of government is an independent judicial branch that cannot be cowed by either of the two other branches. Lifetime tenure – addressed in Federalist #78 – prohibits the president from revoking a judicial appointment should he later come to regret it. And a set salary, which cannot be diminished, keeps the legislature from starving a judge off the bench. This is the topic of Federalist #79.

For the most part, this Paper is relatively straightforward and unremarkable.  The subject matter is not particularly complicated.  If judges are to be as unbiased as possible, they cannot be tempted to adjust their decisions to conform with the views of the current majority in Congress – lest they have their salary cut.

But at least one remarkable aspect of #79 is the evidence it provides of the foresight of the Founding Fathers.  In explaining why the amount of judicial compensation is left to the discretion of Congress, Hamilton notes that the value of money changes over time, and “[w]hat might be extravagant to-day, might in half a century become penurious and inadequate.”  Quite an obvious consideration, but it demonstrates that the authors of the Constitution knew the policies they were establishing had ramifications for years to come and acted accordingly.

This important principle was reiterated about 30 years later by Justice Marshall in M’Culloch v. State of Maryland, 17 U.S. 316 (1819), which determined that Congress has the right to charter a national bank, even though the power to do so is not specifically enumerated in the Constitution.  Justice Marshall reasoned that, so long as it is not prohibited by the Constitution, Congress has the discretion to use such means as needed to further the powers they do have, such as collecting taxes and regulating commerce.

This provision is made in a constitution, intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs. To have prescribed the means by which government should, in all future time, execute its powers, would have been to change, entirely, the character of the instrument, and give it the properties of a legal code. It would have been an unwise attempt to provide, by immutable rules, for exigencies which, if foreseen at all, must have been seen dimly, and which can be best provided for as they occur.

Id. at 41 (emphasis added).

Perhaps this willingness to think in terms of decades, centuries, and ages, instead of just the next year or two, is why our form of government has survived relatively unchanged for over 200 years.  The Founders’ foresight is in marked contrast to recent acts of our legislature that are more concerned about appeasing the current constituency rather than doing what’s best for the nation. Our leaders would do well to heed the Founders’ example and do what is right – long term, as well as short term – instead of what is expedient.

Monday, August 16th, 2010

Kevin Theriot is senior counsel with the Alliance Defense Fund, a legal alliance that employs a unique combination of strategy, training, funding, and litigation to protect and preserve religious liberty, the sanctity of life, marriage, and the family.

 

Guest Essayist: Horace Cooper, Director of the Center for Law and Regulation at the Institute for Liberty

Federalist Paper 80 was printed in the Independent Journal in New York on June 21, 1788.  Hamilton sets out to outline the jurisdiction of the Federal judiciary as outlined in the new Constitution.  He explains that federal jurisdiction involves “all cases in law and equity arising under the Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority; to all cases affecting ambassadors, other public ministers, and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies between two or more States; between a State and citizens of another State; between citizens of different States; between citizens of the same State claiming lands and grants of different States; and between a State or the citizens thereof and foreign states, citizens, and subjects.”

In his view in order to best evaluate the “the proper extent of the federal judicature” it is necessary to understand the appropriate role of federal judges. Hamilton outlines five instances which constitute “appropriate” areas of responsibility for federal judges:  first, litigation that arise as a result of conflict over the laws passed by Congress or the United States Constitution, second litigation resulting from disputes with the President and his administration while carrying out Congressional statutes, third any disputes in which the United States government is a party, fourth disputes between states and/or foreign nationals, fifth litigation involving the high seas which are of maritime origin, and lastly any disputes which state judges might be thought to be partial or biased.

Hamilton rightly observes that a key ingredient in the operation of a federal system is a judicial system with the authority to oversee disputes arising from the federal power.  He cites the obvious example of 13 different courts assessing the same set of facts and reaching different outcomes as a key reason that the states should not have this power.  Hamilton calls such an outcome a “hydra in government, from which nothing but contradiction and confusion can proceed.”

One area that Hamilton mentions that should receive further explanation for federal jurisdiction are instances involving disputes between two states, between one state and citizens of another and between citizens of different states.  Suggesting that there are disputes that lead to war and insurrection, Hamilton cites the Imperial Chamber the High Court in Germany created in the latter part of the 15th century by the Holy Roman Empire for the “vast influence of that institution in appeasing the disorders and establishing the tranquillity of the empire.”  It is perhaps a curious choice as an example by Hamilton because the Imperial Chamber was notoriously slow in carrying out its deliberations.  Lawsuits involving territories often took more than 100 years before rulings were issued.  In fact, when the Court was finally dissolved in 1806 there were cases pending that were over 300 years in age.  Compared to the Imperial Chamber, the American judicial system travels at the speed of light.

This seemingly simple exposition of the appropriate jurisdiction masks a sophisticated understanding that exists in the United States — we are a system of dual jurisdictions.  Thus there are significant areas of litigation that — not only would Hamilton not have mentioned — is primarily left to state courts to address.

One of the earliest examples of the dispute between Federal and state authority arose in 1818 in a case called United States v. Bevans, 16 U.S. (3 Wheat.) 336 (1818).  The case involved a federal prosecution of a murder that took place on board a military combat ship the Independence that was anchored in the Boston harbor in Massachusetts.  In this case, the defense successfully argued that this case should not be tried in Federal Court under admiralty law because the ship was docked in the state of Massachusetts.   In its ruling for the defense the Supreme Court explained, “The article which describes the judicial power of the United States is not intended for the cession of territory or of general jurisdiction…  It is difficult to compare the two sections together, without feeling a conviction, not to be strengthened by any commentary on them, that, in describing the judicial power, the framers of our constitution had not in view any cession of territory; or, which is essentially the same, of general jurisdiction.”  The Supreme Court notably upheld the very distinctions that Hamilton outlined in Federalist #80.

Tuesday, August 17th, 2010

 

Guest Essayist: Jeffrey Reed is a professional orchestra conductor, holds a degree from the Louis B. Brandeis School of Law, and has taught constitutional law at Western Kentucky University in Bowling Green, Kentucky

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

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

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

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

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

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

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

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

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

Wednesday, August 18th, 2010

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

 

Guest Essayist: Kelly Shackelford, President/CEO of the Liberty Institute

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

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

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

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

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

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

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

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

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

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

Friday, August 20th, 2010

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

 

Guest Essayist: Dr. Matthew Spalding, Director of the B. Kenneth Simon Center for American Studies at The Heritage Foundation

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

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

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

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

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

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

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

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

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

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

 

Guest Essayist: Charles K. Rowley, Ph.D., Duncan Black Professor of Economics at George Mason University and General Director of The Locke Institute in Fairfax, Virginia

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Guest Essayist: Michael Krauss, Professor of Law, George Mason University School of Law

The very first part of the First Amendment to our Constitution reads as follows: “Congress shall make no law respecting an establishment of religion…”   What does this text (commonly known as the Establishment Clause) mean?  Does it mean the same thing today as it did when it was enacted?  Today’s post will focus on this topic.

The first ten Amendments to the United States Constitution were adopted because many of the Founders feared that the new federal government they were setting up would become tyrannical.  Other Founders did not share that fear, because the federal government was to have only enumerated powers and not general powers to do anything it deemed to be in the general welfare.  [Today many in Congress seem to believe that the federal government has just this plenary power – perhaps this is a tribute to the prescience of the “anti-Federalists” who insisted on inserting these amendments.]  As regards the establishment clause, it is clear that at the very least it was meant to prevent the federal government from creating a new Church, on the model of the Church of England – let’s call it the “Church of the United States.”  The fear was that this church would be “established” and funded with taxpayer dollars throughout the land.  The creation of a compulsory, or even a subsidized, American church was precisely the kind of British model that the founders all wished to avoid, and so James Madison (who was one of those who felt there was no real risk of federal expansion anyway) was quite content to accede to the requests of his more nervous colleagues and write this prohibition into the Constitution.  No federal church was established, of course, but the same people who adopted the Establishment Clause also created a national day of prayer, named Chaplains for the military academies and allocated moneys for the evangelization of Indian tribes.  A few (notably Thomas Jefferson) wrote that government should be totally divorced from any religious actions, but even Jefferson as President allocated money to pay for priests and churches on Indian reservations, if the Indians so requested.  Again, support for religion in general, without preference for any specific sect, was the order of the day.

But if an established federal church was to be prohibited by the clause, it is clear that established state churches were not to be touched (one early version of the clause also affected the states, but it was quickly abandoned).  All the New England states (from Connecticut north), and all the Southern States (from Maryland south) had established churches at the time the First Amendment was adopted – different Protestant denominations in each state.  Jews and Catholics suffered under various legal disabilities in different states until all were removed in the mid-nineteenth century.  The states were quite clearly to be free to continue in this path – recall that the Clause states only that “CONGRESS shall make no laws…”  After the Civil War, other amendments were adopted to ensure that the new American citizens (the freed slaves and their descendants) would have full citizenship rights in every state, and one of these Amendments, the Fourteenth Amendment (about which someone else will be blogging) was interpreted by the Supreme Court as incorporating most (likely all) of the limitations of the first ten Amendments against all the states.    As the “incorporation” doctrine became entrenched, the case law concerning the Establishment Clause increased.

This case law slowly veered Establishment Clause jurisprudence away from non-preferentialism and toward antipathy to religion.  In the 1879 Reynolds case (in which a Mormon unsuccessfully claimed a religious right to practice polygamy), the Supreme Court opined (though it did not have to decide this question to resolve the case at hand) that Jefferson’s declared view (that the federal government should not even acknowledge religious activity) was the authoritative meaning of the Establishment Clause.  American legal history was replete with examples to the contrary (not only most Founders’ declarations, the national prayer day, the chaplaincies and the Indian missions, but also the declaration of Christmas as a national holiday and the mentions of God on our money and on our Supreme Court building).  In 1947, the Everson case allowed states to pay for school busses for all students (even those who frequented religious schools) but signaled that governments’ recognition of citizens’ religious choices could go little further.  Since then cases have denied the right of public school boards to have ecumenical invocations before solemn events.  Last week a federal judge struck down National Prayer Day – though this had been an institution since the time of the Founding!

In God We Trust is a maxim many of us hold dear.  Most of our Presidents finish their speeches by asking God to bless our people.  Our Supreme Court itself is adorned with multiple sculptures depicting the Ten Commandments, and the Justices begin each and every session with the intonement, “”God save the United States and this honorable court.” Will these reminders of the ultimate authority of the values upon which America was built be one day banned?  The answer to these questions and more ultimately will be resolved by the Supreme Court’s interpretation of the U.S. Constitution and the Bill of Rights.

April 27, 2010

Michael Krauss

Professor of Law

George Mason University School of Law

Arlington, Virginia  22201

Classweb.gmu.edu/mkrauss/

Guest Essayist: Joerg Knipprath, Professor of Law at Southwestern Law School

Articles IV through VII of the Constitution are, even for many educated Americans, terra incognita. People may know about the first three articles, important as they are in defining the separation of powers at the national level among the three branches and in drawing basic divisions between the national government and the states. Despite their brevity, these often-overlooked articles play significant roles.

When the Constitution was adopted, the framers hoped, as the Preamble declares, to form a “more perfect Union.”  They recognized (in part out of political calculation) that a union already existed under the Articles of Confederation. They wanted to tweak the system enough to place it on a sounder political and economic footing. Part of their plan was to give more independence to a revamped United States government, as the first three Articles demonstrate. But, given the size of the republic and the dispersion of its population, the national government was expected to remain a comparatively restrained political player. While the suspicion over “consolidation” was often in the open, the enumeration of formally limited powers and the practice of a part-time Congress were evidence of the expected state of affairs.

Quite naturally, then, much was left to the constitutional domain and the political discretion of the states. Inter-state collaboration and cooperation were practical necessities. Half of Article IV deals with that fact of political life. The “full faith and credit” clause of Section 1 and the “privileges and immunities,” “extradition,” and (now superseded) “fugitive slave” clauses of Section 2 are testaments to the Framers’ concerns about potential interstate frictions that might undermine union. All but the last were also in the Articles of Confederation, and the same continue to be significant today.

One area of potential constitutional conflict in the future is whether or not a state that does not recognize same-sex marriage is constitutionally obligated to give full faith and credit to a same-sex marriage granted in another state. Currently, the federal Defense of Marriage Act protects non-recognition of a same-sex marriage granted in another state. But that law itself may be unconstitutional under Article IV. It’s a close case, though there is some judicial precedent for the position that a state need not recognize an act of a sister state that is repugnant to its own public policy.

The other half of Article IV deals with obligations of the federal government to the states. In little more than 100 words, Section 3 sets forth Congress’s powers to create new states and to dispose of territory and property of the United States. That section was the source of critical federal policies during the great westward push under Manifest Destiny through which unorganized territory became organized and, eventually, advanced to statehood.

Section 4 obligates the United States to guarantee to each state a republican form of government, to protect each state against invasion, and to render assistance against domestic violence if asked. The state of Arizona may well ask whether the federal government has breached that second obligation in failing to protect the border against armed marauders, thereby necessitating the state to take stronger actions against illegal aliens. The last part of Section 4 is one explanation for why the federal military response to Hurricane Katrina was so “late.” The federal government was constitutionally obligated to wait for a request from the governor for assistance, a request slow in coming.

Article V may be the most important part of the Constitution, as it provides the formal means of amendment. This was an area of laborious compromise and reflects a combination of experience with the Articles of Confederation and the various state constitutions, and the development of American constitutional theories of popular sovereignty that broke with English constitutionalism.

There are two methods of proposing amendments and two methods for ratification. The method used for all amendments to the Constitution, though not for the drafting of the Constitution itself, is to have a vote by 2/3 of each house of Congress. Though the matter is constitutionally not free from doubt, by long-accepted practice, the president’s signature is not needed. Many framers feared, however, that the Congress would not advance amendments that might curtail federal power. Hence an alternative permits 2/3 of the states to petition Congress for a convention to propose amendments. Though this method has not been used, some proposals have come close. There are almost the needed number of states for a balanced-budget amendment, a matter that is taking on added urgency in view of trillion dollar deficits.

If an amendment is proposed, 3/4 of the states must approve, either by legislatures (a “republican” principle) or state conventions (a “quasi-democratic” principle), as Congress directs. All but the amendment to repeal prohibition have gone the legislative route. These supermajority requirements were a compromise between the English constitutional theory (also used in early state constitutions) that allowed constitutional change by simple majority vote of the legislature and the unanimity requirement for constitutional change under the Articles of Confederation. The Constitution, the Framers concluded, must be amendable, but not so freely as to promote instability. Note, though, that the Constitution does not have the “democratic” option of amendment by petition or vote of the people directly, as many states have.

Article VI contains a pillar of our federal structure, the “supremacy clause.” That clause makes the federal Constitution, treaties, and statutes superior to conflicting state laws. The clause is an enhanced version of a blander clause in the Articles of Confederation. It enshrines a principle central to the revised structure of the Constitution, that of a sovereign United States independent of, and—within its delegated functions—superior to, the states. From a political perspective, it is not an overstatement to say that, for better or worse, this is the most significant provision in the development of the current (im)balance that exists between the national government and the states.

Equally important, Article VI expressly binds the state courts to abide by the federal supreme law when there exists a conflict with state law. That provision recognizes that, since the Supreme Court is the only constitutionally required federal tribunal, state courts might operate as inferior federal courts. It also creates a judicial “branch” that straddles the divide between federal sovereignty and state sovereignty more than the political branches do.

Article VII provides for the process of ratification. There are many fascinating historical undercurrents at work in the Article. First, it encapsulates the revolutionary nature of the process that led to the Constitution. It must be recalled that the Articles of Confederation required that the Congress approve any amendment, which then also had to be approved by the legislature of each state. Also, the charge from the Confederation Congress to the Convention was “for the sole and express purpose” of reporting to Congress and the states proposed revisions that still had to be approved by Congress and the states, all in conformance with the existing structure.

The Framers, however, created a completely new structure to replace the Articles. In Article VII, they made it sufficient for initial ratification that only nine states approve. In the resolution to send a courtesy copy to the Confederation Congress, the Philadelphia Convention very pointedly required approval by the states but not the Congress. Moreover, the approval was to be by conventions in the states, not by the legislatures.

The non-unanimity requirement is significant because the Framers faced a practical problem. Rhode Island was so opposed to the project that they had not even sent delegates. They were, therefore, hardly likely to approve. Rhode Island’s non-attendance, by the way, is one reason why the Committee of Style changed the Preamble of the Constitution from “We, the people of [then listed the states]” to “We, the people of the United States.” Moreover, the Articles had taken four years to approve. The concern was that unanimous approval would encourage a similar delay. Delay works against constitutional change, as the supporters of the Equal Rights Amendment found out in the 1970s. The Framers gambled that adoption by nine states would create its own momentum for adoption by the other four. The gamble worked, but it turned out to be a close-run thing.

The requirement for conventions was both practical, in that the anti-Constitution forces were more likely entrenched among the political interests in the state legislatures than among more broadly selected conventions. Conventions also reflected better the emerging American political theory that, while legislatures made ordinary laws, constitutions were expressions of shared fundamental political values that went to the very purpose of government. Constitutions, then, were social contracts resting on more direct exercise of popular sovereignty. They were, in the words of George Washington, “explicit and authentic acts” of the people. Since the entire population of a state could not be brought together to deliberate and vote on the Constitution, a convention selected for that purpose from the people of the state was the next best alternative.

A final oddity in Article VII is that the signatories made a rather sterile declaration of witness. In the Articles of Confederation, the signatories declared that they fully ratify and confirm everything said therein and pledged their constituents’ support. In the Constitution, the signatories merely attest that the “States present” (i.e., no Rhode Island) unanimously approved the Convention’s actions. A number of delegates had left the convention because they personally disapproved of the result, as did some of those who remained to sign. In this manner of attesting, there was no personal commitment of support that could prove politically problematic back home. It is like being a witness to a will signing. The witnesses merely attest that the process, such as having the testator sign the document after declaring it to be his will, was completed properly. The witnesses are not declaring their support for the substance of the will. Therefore, if the testator disinherits his family and gives everything to his golf buddies, the witnesses are not morally implicated.

In the end, it was somewhat of a political miracle that the Constitution was adopted at all. It is not a perfect document, and, had the people then been able to see the political reality in which it operates today, they might well have preferred something else. But it endures for many as a symbol of what should be, not only what is—the idea of the Constitution as much as its function.

Monday, April 26th, 2010

Professor Joerg W. Knipprath

http://www.swlaw.edu/faculty/faculty_listing/facultybio/114010

Southwestern Law School

Los Angeles, California

An expert on constitutional law, Prof. 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.

Posted in Articles IV – VII of the United States Constitution, Constitutional Scholar Essays | Edit | 47 Comments »

47 Responses to “April 262010 – Articles IV – VII of the U.SConstitution – Guest BloggerJoerg KnipprathProfessor ofLaw at Southwestern Law School

  1. Daniel Smith says:

    Could states like California and Texas, with the approval of Congress, be divided thereby avoiding the presidential problem of 2000.

  2. Shannon C. says:

    The supremacy clause allows Federal Law to supersede State’s law. But doesn’t that mean the state’s don’t have to adhere to federal law if that federal law is unconstitutional-such as mandated healthcare?

  3. Shannon C. says:

    Do states have the right to secede from the Union?

  4. Susan Craig says:

    The provision for states to propose amendments makes a Constitutional Convention a lot more likely in the present situation as I (and I think most) thought it would entail a redo of the entire document. As I read it, at the next Governors meeting they could convene a convention specificly to draft a balance budget amendment or a strengthening of the 10th amendment change to put before congress. This makes the objections to a ConCon less daunting.

    I, also, appreciated the reminder of the drafters humanity with the inclusion of the errata sheet in the last article.

  5. Reed W says:

    Thanks for clarifying and bringing it all into current events.

  6. Carolyn Attaway says:

    @Shannon – according to sources, Texas v. White, 74 U.S. 700 (1869) was argued before the United States Supreme Court in 1869. The Court held in a 5–3 decision that the Constitution did not permit states to secede from the United States, and that the ordinances of secession, and all the acts of the legislatures within seceding states intended to give effect to such ordinances, were “absolutely null”. However, the decision did allow some possibility of the divisibility “through revolution, or through consent of the States”.[29][30]

    I find the last line fascinating, given all the current legistlation that is being formed in many states since this current administration came to office. It seems the 2 major issues, healthacre and immigration have caused the most uproar given the current number of states suing the federal gov’t over the healthcare mandate and commerce laws, and the new immigration law that was just signed in Arizona.

    However, all states appear to be working on their State Legistlation to prepare for any possible future conflicts with Federal Law. For example on April 1, 2009, (as I understand it) the Georgia State Senate passed a resolution 43-1 affirming states’ rights based on Jeffersonian principles; and for other purposes. Acts which would cause a nullification of federal law include, but are not limited to:
    Further infringements on the right to keep and bear arms including prohibitions of type or quantity of arms or ammunition; Any act regarding religion; further limitations on freedom of political speech; or further limitations on freedom of the press, and Requiring involuntary servitude, or governmental service other than a draft during a declared war, or pursuant to, or as an alternative to, incarceration after due process of law.

    It will be interesting to follow the Supreme Court procedure regarding States Rights in the HealthCare Case. And as I understand it, the healthcare law cannot be challenged until it goes into effect and some one or entity is harmed by the law. Such as a shareholder of a company that goes out of business due to the costs/taxes imposed by the law, they can sue the gov’t for theft. Also, the commerce laws makes no provision to force someone to engage in interstate commerce.

    Also, I appreciated the point made about the Federal gov’t being constitutionally obligated to wait for a State Governor’s request for assistance before intervention can be enacted. The contrast between Katrina and Arizona is striking regarding the assistance from the Federal Gov’t.

  7. Susan says:

    This is so interesting. Yesterday, my husband and I were having a discussion about the new immigration law in Arizona. I see it as unconstitutional and he see’s it as the state having to do something since the Federal Government has not fulfilled its obligation. We had to agree to disagree on this one.

  8. Robert Shanbaum says:

    Shannon C. wrote, “Do states have the right to secede from the Union?”

    Apparently not. See, U.S. Civil War, 1861-1865; an example of a Constitutional dispute not settled by the judiciary.

  9. Robert Shanbaum says:

    Susan Craig, I don’t see where a “Governors meeting” could enter into any call for a Constitutional convention – a petition by “the Legislatures of two-thirds of the several states” is the requirement. The executives of the states are left out of the process.

    Note that there’s no language that suggests that there would be any limit to the amendments that could be proposed at such a convention.

    There’s a requirement in the Connecticut Constitution that requires, every 20 years, a referendum on whether to hold a constitutional convention to amend (or conceivably replace) the state constitution. This was most recently held in 2008, when 59% of voters answered “no.”

    The reason the question failed, I think, is that it was seen as likely to attract activists – persons having one axe or another to grind – to a disproportionate degree. In the pursuit of one’s objective by that means, one runs a substantial risk of getting something one doesn’t want .

  10. Robert Shanbaum says:

    By the way, Shannon C., you may be interested in Andrew Jackson’s response to your question, given 33 years before the issue was settled with finality:

    http://avalon.law.yale.edu/19th_century/jack01.asp

    Jackson could run on; here’s the most apposite passage:

    But each State having expressly parted with so many powers as to constitute jointly with the other States a single nation, cannot from that period possess any right to secede, because such secession does not break a league, but destroys the unity of a nation, and any injury to that unity is not only a breach which would result from the contravention of a compact, but it is an offense against the whole Union.

  11. Susan Craig says:

    State Suffrage? Hasn’t that been abrogated by the XVII amendment? Article V: The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

    The only thing that has been changed is that the State has been deprived of its Suffrage by the XVIIth amendment which removed from the state the right to select its Senators.

  12. Article V is my favorite part of the entire Constitution, for it puts into the hands of the states a way to bring our runaway Congress back under our control. We need additional amendments to:
    1. Impose lifetime term limits of 12 years on Congress
    2. Impose a requirement for a Balanced Budget
    3. Repeal the 16th Amendment and force implementation of a consumption tax(i.e., the Fair Tax.
    4. Impose Congressional integrity that: (a) forces a statement of Constitutional authority to be attached to every bill, (b) forces an affidavit that they have read and understand every bill, (c) prevents them from exemting themselves from any law, and (d) prevents them from enacting any program for themselves that is not available to the general public.

  13. Ron Meier says:

    Thanks, your comments provide some interesting additional color and current relevance that I had not picked up on my initial reading and note taking.

  14. Susan Craig says:

    There is an annual meeting of Governors. If at this years convocation of governors, they got 34 of them to agree that an amendment was needed (say on clarification of the commerce clause, immigration or a balanced budget) would that be a call to convene a Convention for that limited purpose?

  15. Lillian Harvey says:

    I was thinking the same thing, Susan, after reading the Articles and Prof. Knipprath’s blog. Given the political climate today, we certainly can not count on Congress to act on behalf of the People as their will appears to serve the interest of their political party and ideology instead. That’s my opinion anyway. I also don’t feel we could count on all the state legislatures for the same reason. But, some guidance on setting up conventions within the States would be a start.
    A question for the participants: if you were part of a constitutional convention in your state, what issues would you want addressed? Where do you think our biggest problem is? The one condition I would suggest is that the 50 United States remain intact, as I believe our strength has always been in our unity.

  16. ERL says:

    Could the State Legislatures limit the agenda of a Constitutional Convention? For example, could 2/3 of the states approve a resolution calling for a convention, but only to consider specific amendments? Any other topics would be off-limits, and the state delegation would be given strict instrutions to withdraw if any other topic was discussed. The only amendments that could be discussed and acted upon would be those approved by at least 2/3 of the states.

    This would be a means to “control” a convention, and prevent it from spiraling out of control and overthrowing theConstitution itself.

    This method thus imposes three “filters” (or checks, if you will), on a Constitutional Convention.

    First, the agenda items would have to be approved by 2/3 of the states. No other topics would be permitted.

    Second, the Convention, made up of delegations from each state that chooses to participate (even if they did not approve a resolution calling for the convention in the first place), would debate each proposed amendment. The Convention would decide (by majority vote) whether to propose an amendment, and would also approve the final language of the amendment. The debate at the convention would thus be a second “filter” (or check).

    Third, any proposed amendments would be sent to the States for consideration (either by state legislatures, or by state conventions). This would provide the third “filter.”

    Finally, the Convention would be public, and would probably generate a great deal of media coverage and discussion. This openness would serve as a sort of “brake” on the convention, because the public would not accept a radical departure from the Constitution.

  17. Shannon C. says:

    Lillian Harvey , I live in Georgia. My desires would be the following Amendments:

    1. Balanced Budget
    2. Term Limits-one term each, as I am so anti Congress:)
    3. Repeal the 16th Amendment and say a human’s labor cannot be taxed (income tax). A consumption tax would be my choice.
    4. Reword the 10th Amendment to make it understandable to the Big Government Lovers: If it isn’t in theConstitution, stay out of it!

  18. Susan Craig says:

    I feel the relevant portion is as follows; on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; If called for by their governors the individual states legislatures concurring would constitute a call for such a convention and it also says nothing about needing to start from scratch the scope could be as confined as necessary.

  19. Thomas Soyars says:

    @Susan — can you point out a section of the Constitution that makes the Arizona law unconstitutional? What about Article IV Section 4. “and shall protect each of them against Invasion” Look sto me like the federal government has failed in their duty and the state is taking it upon itself to remedy the problem. Congress has also failed to “establish a uniform Rule of Naturalization” (Article I, Section 8).

    @Mike Lowry I agree with most of your recommendations but I have a problem with a balanced budget amendment that is too strict. There may be times (war, severe natural disaster, economic upheaval) that would require the government to run a temporarily unbalance budget. I would propose a measure that teh government be required to have a balanced budget over a rolling five year period. That way you could run a deficit in one or more years and be able to make it up in other years. It would give more flexibility but still provide for a balanced budget overall. I would also add an amendment that the federal government cannot pass unfunded mandates onto the states.

    @Joerg Knipprath — the best blog yet (in my humble opinion).

  20. Joe Rech says:

    -Term limits – three for House, two for senate, two for Pres. Retirement gained in thirds for House, halfs for Senate and Pres.
    -Balanced budget – except in times of national emergency (disaster or war)
    -Repeal taxes – any current taxes enacted for a specific purpose and that purpose no longer exists, immediate repeal.
    -VAT replace income tax, started at some level like 11% and NEVER to exceed 17%, not always levied on all levels of production and not always the same on all products (can be 11% on food, 17% on yachts?)
    -limits on other taxes – 25% inheritance tax on $1mil or more, cap gains tax limits 15%
    -reiterate oath – support and defend the constitution – not interpret the constitution.

  21. Donna Hardeman says:

    Lillian – I agree with Shannon’s List (which is almost identical to Mike’s list). The one thing I would point out, however, is my belief that Congress – either house – be allowed 2 terms. I believe you need some members in Congress who are not “lame ducks” i.e. who know they will have to vote with the will of the electorate if they expect to get elected again. However, by denying the long term benefits of continued “service” we would be denying the chance to get so firmly embedded that political favors, etc. become more important than the people.

    Susan – could you clarify your point about Suffrage being denied? I’m responding to what I think you said but am not totally sure I understood you. Suffrage (voting) rights in the U.S. Senate have not been denied to the States. All States still have 2 Senators representing them. What changed was the manner of selecting the Senators. Originally it was the state legislature and now it’s by popular vote.

  22. Shannon C. says:

    Suasn Craig, You tell ‘em! Good points. Man, I am so glad this site exists. The only thing I wish was a little different is if the guest bloggers could opine in on a few of these a few times a day to answer a few questions.

    Great site!!!

  23. Donna Hardeman says:

    Susan – you and your husband seem to be on 2 different issues in discussing the immigration law. He is certainly correct in saying Arizona took action because the federal government wouldn’t. You may also be correct in saying it’s unconstitutional. Problem is, I couldn’t find the actual text online so I can only comment on what news is out there. It has been suggested that immigration laws are federal rights and not states’ rights. However, if the Arizonalaw simply mirrors the federal law in making it a state crime to be in Arizona illegally, I don’t think this would pose an issue. Also, it’s been suggested that you can’t racially profile by stopping someone solely for the purpose of checking identification. Jan Brewer claims the law simply requires identification to be carried so proof of legality can be shown if someone is stopped for a crime. This also would pose no constitutional problem. If you figure out where the text is, let me know and I can blog a little more intelligently on the subject. Do you have a specific challenge to the constitutionality?

  24. Carolyn Attaway says:

    Hello Shannon C. from a fellow Georgian!

    Our State has to have a Balanced Budget, so I agree that those same rules should apply to the Federal Gov’t. The Pay As You Go is a complete disaster and Congress cannot even stick to their own rules.

    I think it should be a 2-term limit, just because I personally feel that 1 term is not enough time some really good congressmen need to get issues addressed and completed. However, I feel every congressman should pledge to uphold the Constitution, and that impeachment should be allowed if they abuse their time in Congress.

    Along with the 16th, I think the 17th Amendment should be repealed. Senators should represent their State’s interest, and quite going rogue.

    The 10th Amendment can be reworded to be more specific, but I think the problem lies with the States giving to much of their power away in exchange for funds. Over time, all those little crumbs they have been throwing away to the Fed. Gov’t, have now been gathered together, and the States are realizing half their bakery is gone, and managed by someone else.

  25. ERL says:

    Another amendment that should receive serious consideration is a “Single Topic Legislation” requirement. Several states have a provision that each bill considered by the legislature must have a single topic only. So-called “omnibus” bills are prohibited, as are “earmarks” and “riders” that are unpopular expenditures attached to an important bill. (The Stimulus Package passed last year was a hodgepodge of pet projects. It is unlikely that those projects would pass if they stood alone).

    In other words, every proposal considered by Congress would have to stand or fall on its own. This would help reduce deficit spending by forcing Congress to look at each proposal separately, and not as small earmarks on a gargantuan bill.

  26. Debbie Beardsley says:

    “Equally important, Article VI expressly binds the state courts to abide by the federal supreme law when there exists a conflict with state law. ” I am taking this to mean that the states must follow Federal law at a minimum. If so, how and why are the states allowed to “decide” to not follow federal law. Ie, California and the medical marijuana or the wonderful mayor of San Francisco declaring a sanctuary city????? Doesn’t this behavior and the lack of action on the part of the government a big slap in the face to the Constitution?

    I am loving reading and learning but at the same time it is very disheartening to see how far away from theConstitution we have strayed.

  27. Chuck Plano, Tx says:

    In regard to Texas being able to devide itself as was suggested by someone, reference California and Texas dividing in order to prevent a repeat of the 2000 Presidential election, Texas has that right as stated in the Joint Resolution for the annexiation of March 1, 1845 . This right was mantained and specifically quoted in other settlements of border disputes with Mexico in the Treaty of Gadulape Hidalgo and the Treaty of The Gadsden Purchase. This is only one question regarding Texas as Texas entered the United States as a free and Soviourn Nation and yet it’s annexiation was by joint resolution and not a treaty. The Senate rejected a treaty to annex Texas four times in 1844 so did Congress have the right under the Constution to Annex a Nation?? The Constution is silent on this as it refers to territories, article IV Section 3, and not nations.

  28. Andy Sparks says:

    @Robert: Does might make right? Historically there have been many occasions where states have threatened secession: some of the western states when it seemed the U.S. would support a Spanish decision to close off the Mississippi during the early days of the Republic, some radicals in the New England states during the War of 1812, Thomas Jefferson even initially had secessionist language in the Kentucky Resolutions he drafted in 1798 (he was convinced to remove the offending passage before it was submitted). Why would parties threaten to secede if they didn’t think it was a viable option. While the Texas vs. White case put a law on the books regarding the legality of secession in 1869 after the Civil War, it would be interesting to see if it could be held up if challenged. The fact is that the Constitution is fairly quiet regarding the constitutionality of the issue.

  29. Donna Hardeman says:

    Guest bloggers coming in at the end of the day to review some of the comments and questions is a supremely good idea. Shannon – I must admit, it had occurred to me also but I’m glad you put it in writing. Maybe this idea could be incorporated into our learning process. We all have great comments and questions but the experts here could help.

  30. Susan Craig says:

    States Suffrage has been taken away and another Representative has been put in the Senators place. As I read the original articles the House of Representatives was to have been the representative body of the ‘vox populi’ whereas the Senators were to be the corporate representation of the State as a corporate whole. Now there is no longer a corporate representation of the the State but another directly selected Representative of the people.

  31. WeThePeople says:

    Making it so that 2/3 was needed for ratification seems very strategic to me. It seems that the government enjoys that they don’t need everyone’s approval. (As in the 3/5 Compromise in 1787– WHY would being black ever make you less of a person?) I also appreciate that in Article 6 it is stated that “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.” If religious discrimination isn’t acceptable in government, why is it still so prevalent?
    If one state has a controversial law, like legalizing same sex marriage, would holding a convention be the first step towards creating an amendment? After that it would run through both the houses and then to the people…

  32. Hi all, great stuff again.AZ,Govner is a brave soul, she has pushed the hand as no one has managed to.After reading J, Knippraths comments it seems to me that in Art.4 section 4,(protection fom invasion) might be the key in fighting for the Constitutionality of the States new law.However I have this nagging feeling that there is probably grounds to overturn it… in that perhaps it could be construded that the long, long history of NOT inforcing the laws that are on the book already my be percieved as consent.On top of that when an act that is against the law is ignored, people begin to think of it as “their right” to continue an set aside the law they know exists,but have rendered it without any reach.
    Is this the reason that the laws have been ignored so long, was this the grounds that were maturing as the years wore on( I know that sounds like conspiracy stuff)but I find no sense is the past lack of willingness to act by DC.

  33. hey! It’s Janine Turner. I agree! I would LOVE to get the Constitutional Scholars of the day to chime in at least once more during the day to answer questions. This was my original intent. I am working on it! I am so glad y’all have joined our blog. Isn’t it wonderful to have this opportunity to study our Constitution. I am learning so much – such as why the Preamble states, “We the People of the United States..” That’s a cook piece of trivia. Yes?

  34. Shannon C. says:

    Janine, GREAT thing you are doing. As a dad of two little girls, this is so important for their futures.

    Can someone tell me if I have this right? The Supremacy Clause, as I understand it, means that federal lawsupercedes state law. However, I take the last sentence to mean in today’s language , “UNLESS the federal law is unconstitutional or goes against an existing state law.”

    My point is, just because the federal government mandates somthing like healthcare purchasing, that does not mean it is constitutional.

    Any thoughts?

  35. J.D. Wiggins says:

    Please comment on Article VI “Supremacy Clause.” Couldn’t this be used as a back door for making the Second Amendment null and void?

  36. There are a lot of terrific questions here. I wish we could have a seminar to discuss them all. Let me just address a couple. ERL asked whether the states could limit a constitutional convention to a particular topic. If 34 states call for a balanced budget amendment, technically Congress would call a convention to discuss only that topic. But what if the delegates decided to push further? This is unknown territory, and why most constitutional law professors and most politicians oppose this method. It is less the states than the Congress that is likely to fear a run-away convention. Congress could refuse to forward to the states anything that went beyond the charge to the convention. However, there is a precedent for a run-away convention going beyond their charge and then submitting their product directly to the states. That would be the Philadelphia Convention of 1787. Their action is based on the 18th/19th century theory of popular sovereignty that the people, as soon-to-be Supreme Court Justice James Wilson said at the time, “The people may change the constitutions whenever and however they please.” Kept within the context of Article V, this is not even that radical. Could the people change the Constitution outside Article V, simply by gathering in convention (say, a huge town hall meeting over the internet)? That issue was argued before the Supreme Court in 1849, arising out of just such an attempt to adopt a new constitution in Rhode Island (which controversy produced a small “insurrection”—the Dorr War). The attorneys, including Daniel Webster and other high-powered talent, argued the issue of popular constitutionalism exhaustively; the Supreme Court then ducked the issue, deeming it a non-justiciable political question not suited for the courts. There is insight in that. Ultimately, these basic constitutional issues are political. Could today’s Congress refuse to pass along other constitutional changes demanded by a convention, without appearing to disregard popular will? The Confederation Congress couldn’t oppose the political appeal of the Convention’s action. On the other hand, today’s Congress may not be as sensitive to the popular will.

  37. Let me answer a couple more. The single topic issue. There is a historical argument exactly like that. It arose out of the “line-item veto” controversy, when Congress in the 1990s tried to give the President a limited line-item veto over certain budgetary and tax issues. The Supreme Court found that to be unconstitutional. One argument in support of the law is that the Constitution requires each “bill” or joint resolution to pass both houses and be presented to the President. Some historians analyzed the term and argued that, at the time of the founding, the meaning of “bill” was understood to focus on a single subject. Plausibly, that would have required each budget item to be approved separately, rather than as one “Omnibus Budget Bill.” However, the practice since nearly the beginning has been to allow bills to address more than one subject.
    Merely having governors call for a convention is not enough. Legislatures have to act. Do legislatures have to phrase their petitions identically? Or just enough for Congress to get the message? Again, that is ultimately a matter of political pressure. Could states rescind their petition before a convention is called? Probably yes.
    As to the Supremacy Clause, for the states to be bound by a federal law, it would have to be constitutional. But sometimes states are prohibited from acting, even if there is no specific federal law against them. Sometimes the mere existence of a federal power in the Constitution prevents a state from acting is the state’s action conflicts with the purpose of the provision in the Constitution. That’s called “dormant federal power” theory. If the Constitutionis said to make a certain power “exclusive” in the federal government, the states cannot act in that area at all. One possible example is the federal power over immigration and naturalization. That is one potential problem for parts of the AZ law. If the Constitution intends for federal power to be exclusive, then states cannot act even in trhe absence of federal regulation or even in support of similar federal law. I have posted about this further on my blog.

  38. Robyn says:

    ERL, I agree with a Single Topic/Issue Legislation. Not only would the ‘we, the people’ see the text (hopefully), we would also know who supports the legislation (or is beholden to special interests/lobbyists. And need I say, it would be a short bill! KIS – Keep It Simple!

  39. Lillian Harvey says:

    Hi Georgians and others… Virginian here :-) ). These are my thoughts on the Constitutional Convention.
    First fix some problematic fixes: Repeal the 16th and 17th Amendments.
    -Repealing the 16th returns to Congress the authority to impose import and excise taxes only. How they work within that framework would be an interesting national discussion, whether it be through VAT or Fair Taxation. One thing I like in the Fair Tax proposal is that the percentage of your purchase that is the tax is on your sales receipt. If it is increased, the consumers, We the People, can demand to know why. I am against the Flat Income Tax because we all know that flat tax percentage will increase. Repealing the amendment that allows income to be taxed is critical to me.
    -Repealing the 17th would put Senators back to work for the States they represent. If they are going to be there forever, they better be working for the State legislatures that sent them instead of a political party machine.
    -I would love to see the language clarified on the recess appointments clause. If the Executive can’t get an appointment through the Senate during regular sessions, there is something wrong with the appointment. It sets up too much game playing and distracts from the work that needs to be done. Although worrying to me, it is not as important as the repeals of the aforementioned amendments. I am in a “less is more” mood.

    From what the Professor has written, the Omnibus-type bills Congress seems to love appear to be the source of our budgetary problems. When I think about it, the greatest objection to the Healthcare bill was its size and scope. The call to kill that bill and deal with each component separately so the issues of access, cost and the overall impact on the economy/businesses could be better anticipated was the loudest from We the People. But the Executive and Congressional leadership absolutely refused to do this. Why?
    Now we are in a real mess. You can’t just repeal the bad parts; the whole thing has to go. And it is my belief that it should. If the Congress can not do something correctly, that power to manage these issues should remain with the States. Then Congress can clean up their act or we clean up the Congress in the next election cycle.
    Is there a way to write constitutional language insisting upon one bill, or issue, being dealt with at a time? It seems that the Supreme Court ruling against the line item veto was based on the notion of Congress legislating one issue at a time. Since that is not the case, is the Supreme Court decision relevant?

  40. Shannon C. says:

    Mr. Knipprath, thanks for your willingness to come back and answer some questions!!! You did a good job.

  41. Gitel says:

    @WeThePeople – nobody ever said being black made someone “less of a person.” Remember, the more people in the state, the more representatives the state receives. The problem was if black slaves were counted as part of the population, the southern slave states would be entitled to more representatives. The northern states were against that. Of course, the southern states wanted to count the slaves so they could have the extra representatives.

    The compromise was made so the south wouldn’t be “over-represented” in the northerners’ view. It never says anywhere in the Constitution that a black is “less of a person.”

    Practically speaking, a state would get 1 representative for 30,000 white citizens, but it would take 50,000 black slaves to get another representative.

  42. Robert Shanbaum says:

    @Andy: I do not think that “might makes right”, but I think that might sometimes makes fact.

    As you suggest, the Constitution itself is silent on the issue, although one can trace the commitment to a “perpetual” union stated in the Articles of Confederation through the “more perfect union” objective stated in the Constitutionas one approach to arguing in favor of the voluntary act of union being legally undoable.

    Given that there is no power of secession clearly reserved to the states in the Constitution, it’s hard to see how the question matters much from a practical standpoint. Whether a state would be “allowed” to secede would be determined by the actions of the remainder of the Union, which could either force the issue or not – just like the last time the question arose. There’s no court in which the controversy might be meaningfully resolved; the seceding state would hardly be likely to recognize the jurisdiction of U.S. courts.

    Given our avowed (or maybe I should say “presumed”) commitment to the right of self-determination, at least when it comes to other peoples, I don’t think that the actions of the U.S. in the Civil War were necessarily “right”, but I think I’m glad the Union was preserved – “right” or not.

  43. Chuck Plano, Tx says:

    So Robert if preserving the Union is something that is best for the whole why did the United States at the time Texas declared it’s independence from Mexico the United States was one of the first to recognize that or when the State of Georga declared her independence from the USSR and the other Baltic and Eastern Block countries did the same we seemed as a Nation to think that was the “right” thing to do. It was because we believed that “People” retain the right to self determination and that right is granted to us by “God” not the state.

  44. Mary Lou Leddy says:

    I am so excited about this project. Studying the Constitution has been a real eye opener for me. I must admit it is frightening to see how far this great country has veered from the Constitution . I am however uplifted by reading the blogs from all of you. I firmly believe that by becomimg more aware of the founders thoughts and words we can make much better choices of candidates who run for office. Candidates who are believers and supporters of theConstitution.
    Special thanks to Janine & Cathy

  45. In readiing about a state honoring a homosexual marriage as law when they were not entered into this law was quite surprizing to me. This is what we call a slippery slope where it comes to recognizing something a violitile as this subject is. I would have a difficult time condoning this as constitutional but evidently it is. This is one thing I think the Framers of this constitution would never condone nor would give credence. So the amendment to this law had to be made so that a state would not have to be forced into an immoral state simply because they disagree and have a moral duty to uphold. These fianl articles have an impartail upholding in passing that they needed only witnesses and not a quorum of 2/3 of the staqtes representatives. This was so because one state never was there to cast its vote nd thereby be apart of this constitution.

  46. Andy Sparks says:

    Robert,

    Well put. I would point to the 10th amendment which specifies that those powers not specifically delegated to theConstitution are reserved to the States or the People as an argument for (at least) the possibility of secession. While I may disagree (somewhat) to your argument, I do not disagree with your sentiment. I, for one, am glad the Union won despite being born and raised in Texas.

  47. yguy says:

    “Currently, the federal Defense of Marriage Act protects non-recognition of a same-sex marriage granted in another state. But that law itself may be unconstitutional under Article IV. It’s a close case…”

    It shouldn’t be. The push for same sex marriage is clearly an attempt by some for whom liberty means license to impose their immorality on society at large, and clearly the full faith and credit clause was never intended to facilitate such perfidy.

 

Guest Essayist: Lawrence J. Spiwak, President of the Phoenix Center for Advanced Legal and Economic Public Policy Studies

Article III of the Constitution provides the parameters for the third and coequal branch of the federal government: the Federal Judiciary.  Today’s posting will focus on the importance of judicial independence as contemplated by the framers.

In Article III Section 1, the Constitution sets up the Supreme Court and “inferior” courts (i.e. Federal district courts and federal appeals courts), and provides that federal judges shall “hold their offices for good behavior” (i.e., life terms).  Article III Section 2 then defines what type of disputes fall within the Federal Judiciary’s jurisdiction.  (Article III Section 3 also sets forth the specific provisions for trying a case of treason, but discussion of this specialized topic is better left to a dedicated post.)

The Founding Fathers understood that a strong and independent judiciary was an integral part of the brilliant system of “checks and balances” they developed:  the Legislative Branch would pass a bill; the Executive Branch (i.e., the President) would sign the bill into law, and then the Judicial Branch would evaluate whether the law passed Constitutional muster.  If the courts found that a particular piece of legislation failed this test, then the Legislative Branch remains free to take another bite at the apple, and so the virtuous cycle of our Constitutional Democracy continues.

Perhaps one of the most often asked questions by non-lawyers about the Judicial Branch is why are members of the Federal Judiciary appointed for life (the aforementioned “good behavior” language mentioned above), while members of Legislative and Executive Branches have Constitutionally defined terms of office?  The answer is straightforward:  the Founding Fathers clearly understood that the judiciary must be impartial, dispassionate and, most importantly, free from political pressures that face the Executive and Legislative Branches.  By not having to constantly fear political reprisal, judges may administer the law fairly without regard to public reaction.

But what if a member of the Judiciary is guilty of malfeasance?  Certainly, for conduct unbecoming the office (malpractice, corruption, etc.), the Constitution provides for an impeachment process.

But what if you just don’t like a judge’s approach to a case?  Stated another way, you are convinced that the judge has engaged in some sort of “judicial activism” whereby the judge has “made” law rather than “interpreted” the law.  Is this ground for impeachment?  While technically the Constitution’s definition of impeachable offenses might be considered broad enough to cover “egregious“  judicial activism on the part of a judge, a more considered view is that the elected branches exercise restraint in their use of this tool perhaps for no other reason than that “judicial activism” often lies in the eyes of the beholder.  (See, for example, President Obama’s recent public chastisement of the Supreme Court for its Opinion in Citizen’s United before the full Congress at this year’s State of the Union Address.)

Instead, the appropriate mechanism for change in the Judicial Branch is to let the electoral process play out (which, by definition, reflects the will of the people) and allow these elected officials to appoint and confirm new judges as vacancies open.  As former Chief Justice William Rehnquist recognized before he died:

In this way, our Constitution has struck a balance between judicial independence and accountability, giving individual judges secure tenure but making the federal Judiciary subject ultimately to the popular will because judges are appointed and confirmed by elected officials.  It is not a perfect system—vacancies do not occur on regular schedules, and judges do not always decide cases the way their appointers might have anticipated.  But for over 200 years it has served our democracy well and ensured a commitment to the rule of law.

In sum, although our legal system may not be perfect, our Founding Fathers set forth a legal framework that remarkably still holds up nearly 225 years later.  To this end, I leave you with a small prayer by Chief Justice Rehnquist:

Let us hope that the Supreme Court and all of our courts will continue to command sufficient public respect to enable them to survive basic attacks on the judicial independence that has made our judicial system a model for much of the world.

Wise words indeed.

Friday, April 23rd, 2010

Lawrence J. Spiwak is president of the Phoenix Center for Advanced Legal and Economic Public Policy Studies (www.phoenix‑center.org), a non‑profit research organization based in Washington, DC.  He is a member in good standing in the bars of New York, Massachusetts and the District of Columbia.  The views expressed in this article do not represent the views of the Phoenix Center, its Adjunct Follows, or any if its individual Editorial Advisory Board Members.

40 Responses to “April 23, 2010Article III of the U.S. ConstitutionGuest Blogger: Lawrence J. Spiwak, President of the Phoenix Center for Advanced Legal and Economic Public Policy Studies

  1. Don Barton says:

    Judicial activism is a scourge on our country. In no way did the Founding Fathers provide for or envision a scenario where the Judiciary would make law. That is clearly within the realm of the legislative branch, to be aided by and enforced by the executive branch, and interpreted by the judicial branch.

    Those of us who hold this view are seen as Constitutional “purists”, with the word “purist” being a pejorative term. The implication is that we are stuck in 1787 and can’t quite adapt our views to the realities of the Modern Era. But since when is someone who loves and values the Constitution a regressive, backward-looking idealist?

    Though we have not read or studied yet the Amendments, the Founders allowed for–through an extremely rigorous process–the Constitution to be changed so that it would NOT become a tired and irrelevant document in the coming centuries. The mechanism, therefore, is already there to keep the Constitution relevant and fresh. The mechanism is the drafting of an amendment, which must be passed by super-majorities in Congress and then by three-quarters of the states.

    The mechanism is NOT for judges to make law from the bench.

  2. Jeff Parker says:

    I see two degrees of judicial activism.

    One that tends to make new law from the bench. The resulting case law can be consistent with proper court function when it corrects vague statutes or reconciles law to the constitution. Or it can simply presume to take over the function of the legislative branch, not good.

    The most worrisome activism is when the court so severely overreaches that it effectively amends the constitution, circumventing the correct process for such change.

  3. Susan Craig says:

    I wish just once that something dealing with the legal system would be written in common English not legalese. Even the Constitution sends me to the dictionary to try and understand what in God’s name are they talking about.

  4. Carolyn Attaway says:

    As I read Article III, images of the Supreme Court being reprimanded by our President during the State of the Union Address kept being played over in my mind. I am still embarrassed for our country every time I think about it. As I understand it, the Judicial Branch is an equal part of the U.S. Government, and should not be beholden to the other 2 branches; the Legislative and the Executive. At the State of the Union, the Supreme Court judges were guests, and should not have been held up for ridicule.

    In his book, ‘The 5000 Year Leap’, Cleon Skousen gives a great illustration of the Balance of Power using a Three-Headed Eagle. In his explanation, Mr. Skousen labels the third head as judiciary which was assigned the task of acting as a guardian of the Constitution and the interpretation of its principles as it was originally designed.

    That is why I am troubled when I hear our President say he wants to find judges that will take in account certain rights of special interest groups and interpret the law that takes in account the struggle of the individual. For example, in his comments to find a replacement for Judge Stevens he said he will choose a nominee who pays heed to the rights of women and the privacy of their bodies. Yet he said he won’t enforce any abortion rights “litmus tests.”

    Obama said it is “very important to me” that his court choice take women’s rights into account in interpreting the Constitution, his most expansive comments yet about how a woman’s right to choose will factor into his decision.

    The President’s last judicial pick of Judge Sotomayor was filled with controversy when she was noted of stating at a panel discussion at Duke University in 2005, where she told students that the federal Court of Appeals is where “policy is made.”
    “I know that this is on tape,” she then immediately said. “I should never say that. Because we don’t ‘make law’… I’m not promoting it, and I’m not advocating it. Having said that, the Court of Appeals is where … the law is percolating.

    I guess with everything, if you have a complete majority in two of the branches of government, the safeguards for the Balance of Power get distorted.

  5. Shannon C. says:

    I agree with the idea that it is OK to amend the Constitution to better be able to get judges out who make law. How about giving them a 10 year term? Stagger it for a certain number of years where a President could only make one appointment per term assuming he or she served two terms?

    Just as they did with the original Senate where they did a lottery to stagger it where both Senators from a state would not be up for reelection at the same time, make it where down the road a new nominee comes up every 10 years.

  6. Donna Hardeman says:

    @Susan Craig – don’t feel like the long ranger. The problem is not legalese – rather it’s “olde” English. My husband and I are both attorneys and, in reading the last paragraph of Article III last night, we were slightly bewildered. Extrapolating from the “olde” language, we came to the conclusion that the words simply mean that the family of the treasonous person won’t be stoned or cast out into the wilderness, etc. Treason is linked only to the person committing the treason.

  7. Donna Hardeman says:

    @Thomas – since you insist on bringing PTA rules into the discussion, I have e-mailed our Florida Republican senator (Lemieux) and provided him with my insight as to why the recess appointment of Craig Becker was outside Constitutional parameters. Am I now free to challenge the rest of you to do the same in your respective states?

  8. Carolyn Attaway says:

    @Donna – I took my complaint about the recess appointment of Craig Becker, along with several other issues, to my representative at his townhall meeting. I have expressed my concern about these appointments to my Senators as well in person, and in phone calls. I guess when you are in the minority, it is easy to have your objections overridden.

  9. Susan Craig says:

    Shannon, I don’t think term limits for SCOTUS would work, however, a review/oversight (a confirmation light) every 15 years from confirmation answering to usurpation of legislative prerogative might constrain the inclinations to legislate from the bench. I think this could be done in committee with up or down acceptance on the legislative floor.

  10. Susan Craig says:

    Thank you Donna, for your explanation.

  11. Carolyn Attaway says:

    If you haven’t listened to Judge Napolitano’s 5 Part Series of the Constitution and Freedom, you can access the link here: http://www.thefoxnation.com/judge-andrew-napolitano/2010/01/11/judge-andrew-napolitanos-constitution-and-freedom-part-1

    On the fifth video on this link, Judge Napolitano explains the Supreme Court and the Federal Court System in America. It’s brief, but very informative. It compliments Mr. Spiwak’s Blog very nicely.

  12. Will says:

    A fine couple of examples of the USSC exhibiting the separation of powers is in the cases of Hamdan v. Rumsfeld and United States v. Nixon. In both cases the Court reined in the Executive branch.

  13. Richard says:

    I don’t remember what I was reading but one of the founding fathers made the statement SCOTUS are to serve a term and then go back home and live among their people.
    That way they remain government of the people of the people. Maybe it was Thomas Paine?

  14. Susan says:

    @DonnaHardemon- After reading that section and a bit of Googling, my husband and I came to the same conclusion. We believe it was due to the English Common Law in which a person convicted of treason forfeited their property to the crown.

  15. Karla Blum says:

    The Judicial Branch is equal to the other two branches of government. My concern is why does the Supreme Court give deference to Congress when ruling whether legislation is constitutional or unconstitutional? The court is to be objective upholding the Constitution, not giving deference to the Legislative or Executive Branches.

    Also, our court system may be a great system, however, through history they have been very “schizophrenic” in considering legislation such as slavery and segregation. They did rule correctly in regard to President Jackson forcing Native Americans to reservations, however, Jackson thumbed his nose at the Judiciary.

  16. Chuck Plano, Tx says:

    The Supreme Court was not granted Constitutional review in the Constitution it assumed that power in 1803 when it ruled in Marbury vs Madison that part of the Judicary Act of 1789 to be unconstitutional.

  17. Spider says:

    @Chuck Plano, Tx: Your statement is only one side of the argument. Although the Constitution does not explicitly authorize judicial review, it also does not explicitly prevent it. I’ll leave my statement at that, and let the smarter and more informed than I work it out.

    This subject is more thoroughly explored by Alexander Hamilton in Federalist No. 78, the first of six essays by Hamilton on this issue. Stick around till then, and we can discuss it further.

  18. Donna Hardeman says:

    Thanks for the additional research Susan – makes perfect sense.

    Matt – how do you know it’s the end of the term of Congress? In re-reading the section, it makes sense since Session is the term used and the previous paragraph refers to Senate authorization. I tried to do some case law research and didn’t come up with anything. So, when is the end of the next Senate session – next time they go on a break – like July 4th or does the “Session” literally start once a year? What does that mean for Craig Becker? Is he supposed to be out? Will he be out? Will the Senate be given the chance to confirm somebody else? Even if the answer to all those questions is supposed to be “yes” what are the chances of it actually happening?

  19. Maggie says:

    I realize that all of these conversations are most likely being archived somewhere, but is someone making a hard copy of any of this? This could potentially be history in the making. We wouldn’t have many of the great resources that we do today to look back upon if someone didn’t write it all down and keep copies.

  20. While the founders may never have imagined the world we live in today since it has changes in so many ways, they clearly understood human nature, which has changed very little in the last several hundred years. The constitution is just fine the way it was written and amended. If you want to change it follow the rules and make an amendment.

  21. Teddy Howard says:

    The founding fathers said that the judges of the supreme court are apointed for life. Unless of course he/she resigns or commits treason. I like this because onces he/she is in, it’s for good. That means to me that if the judges in the supreme court do something that the president or someone in the government doesn’t like, it’s not like they can fire them.

  22. Lillian Harvey says:

    Wonderful discussion going on here! I am learning so much just reading your ideas and insights. This whole question of judicial activism has concerned me for some time. In considering Associate Justice Sotomayor’s comment during her confirmation hearings, “…we don’t ‘make law’… I’m not promoting it, and I’m not advocating it. Having said that, the Court of Appeals is where … the law is percolating.”, I can see where things get messy. A judge with a certain mind set is weighing politics, community issues, previous cases and the rights of the accused in a decision. One can only hope that common sense and right action are in integrity in these instances. Politics and resulting “activism” can insinuate into those decisions very easily. So, although I understand what she is saying, it is not a great comfort to me.
    Is this where the case law becomes the standard by which future cases are judged, at the appeals level? AJ Sotomayor also said often that she would have to review past case law in her rulings. I am only using her statements during the confirmation because they are fresh, not as a criticism of her per se. Still, is it the Supreme Court’s mandate to hold those case decisions against the original intent of the Constitution to assure that these “precedents” don’t get too far off the track? Thoughts?

  23. Jim Sykes says:

    It would be very beneficial if we could have someone discuss if, and when, circumstances would allow State Courts to refuse to enforce U.S. Supreme Court opinions. It is my understanding that the “Supremacy Clause” only results when the law passed by Congress is Constitutional. The reference to the Supreme Court’s decision regarding the Indians in Georgia being correct and that President Jackson elected to disregard that opinion indicates to me that the three divisions of the Federal government are EQUAL and should not be able to overrule each other when each are acting within the power granted by the Constitution. Since the Federal government derived it’s power from the States and the States derived it’s power from the governed (people), how is it possible for the Federal government to pass legislation that it doesn’t have the authority to pass. My understanding of our Republican form of government is that the Federal government was not to interfere with the States and the States were not to interfere with the local governments. All problems were to be resolved at the lowest level of government possible. Only when the lower level required the assistance of the higher level and requested help were they to become involved in solving the problems.

  24. Donna Hardeman says:

    Lillian. When my children were young, I was explaining to them why precedent alone (which is all I learned in law school) was insufficient. I gave them the example of a household where junk food is not allowed. Mommy gives in the first week and says – just sodas on the weekend. The kids push her into every day – since the precedent has been established. Then it’s pushed to allowing candy – but only after dinner. Well, lunch is a meal too so why not after lunch? Now that we have cokes and candy allowed, what’s wrong with McDonalds? It’s not nearly as bad as candy and we’ve already established that precedent. At some point Mommy needs to step back and say – “Remember the original rule, guys? We’re going back to that.” Yes, there will be screaming and yelling, but the original rule was a good one. I was gratified years later when my son was working on his legal badge in Boy Scouts and used this example to explain the judicial case law system to his fellow Scouts. It’s never too early to educate the kids. (The Progressives already know this so it’s time the strict Constructionists got the same message.) Good blogging girl.

  25. Bill says:

    Contrary to Mr. Spiwak’s post, Article III section 1 does not infer a lifetime appointment for federal judges. The duration of their appointment is limited to good behavior.
    Federal judges may be removed by Congress for misbehavior, which, historically, did not include only criminal behavior but also other misbehavior. Historically, federal judges have been removed from the bench by Congress for contradicting an order of Congress, for profanity, for rude treatment of witness in a courtroom, for drunkenness, for judicial high-handedness and a variety of other reasons.
    James Wilson, signer of the Constitution, original Justice on the U. S. Supreme Court: “[I]mpeachments are confined to political characters, to political crimes and misdemeanors, and to political punishments.
    Justice Joseph Story, a “Father of American Jurisprudence” appointed to the Supreme Court by President James Madison: “The offenses to which the power of impeachment has been and is ordinarily applied as a remedy. . . . are aptly termed political offences, growing out of personal misconduct, or gross neglect, or usurpation, or habitual disregard of the public interests.
    John Marshall, Chief Justice of the U. S. Supreme Court: “[T]he present doctrine seems to be that a Judge giving a legal opinion contrary to the opinion of the legislature is liable to impeachment.
    The judiciary is not ment to be independent or co-equal branch of government.
    Nathaniel Chipman, office in the Revolution, early Member of Congress, U. S. federal judge, Chief Justice of Vermont Supreme Court: “If the judges are made thus independent . . . they will become a dangerous body.
    Joseph Nicholson, early Member of Congress, successfully managed the impeachment of multiple early federal judges: “Give [judges] the powers and the independence now contended for and . . . your government becomes a despotism and they become your rulers. They are to decide upon the lives, the liberties, and the property of your citizens; they have an absolute veto upon your laws by declaring them null and void at pleasure; they are to introduce at will the laws of a foreign country…after being clothed with this arbitrary power, they are beyond the control of the nation. . . . If all this be true – if this doctrine be established in the extent which is now contended for – the Constitution is not worth the time we are now spending on it. It is – as it has been called by its enemies – mere parchment. For these judges, thus rendered omnipotent, may overleap the Constitution and trample on your laws.

  26. Bill says:

    Federalist #78: “The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither force nor will. . . . The judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution. . . . [T]he judiciary is, beyond comparison, the weakest of the three departments of power. . . . [and] the general liberty of the people can never be endangered from that quarter.
    The sword in the above text refers to the executive branch, and the purse refers to the legislative branch.
    Congress determines the operation of the Judiciary, not vice versa (Congress sets the number of judges and courts; what issues may come before the courts; judges’ salary and compensation; how often the courts meet and the length of their sessions; and just as Congress can establish and set the number of lowers courts, so, too, can Congress also abolish them; etc.)
    As Rep. Steve King correctly explains, “Constitutionally, Congress can reduce the Supreme Court to nothing more than Chief Justice Roberts sitting at a card table with a candle” – a power that the Judiciary cannot reciprocally exercise over Congress.
    The Supreme Court can only give opinion(that is why in all of their decision say” it is the opinion of this court) and have no ability to enforce their decision other than what the executive branch supplies.

  27. Great discussion!!!I have taken to reading the comments before I start writing,because I find it all so informative and thought provoking, thanks all.
    The conition of man was clearly taken into account when our founders hammered out our Constitution.I only wish that our Representatives (all branches) would work as hard as they did.
    I have a nagging reaction everytime there is need to appoint a new Supreme Court Justice, the conversations always without fail talks about the balance, Liberal /Conservative. This bothers me a lot, it surely seems to imply that there are at least two interpertations of our Constitution !!The casual way this is collasped into the various particulars that are considered seems to in some way pave the path for the things that bother me about some of the deciions the Court makes. (Emenant Domain to name one).
    The party that is in the majority can stop the appointment because the cadidate is not enough this way or that way idelogically speaking…. is that the way we keep the promises of our Constitution? Perhaps I am a hick but I am most interested in their character, their academic, qualifications and their experience that has made them stand out as special and good.
    One more comment, I was oh so embarassed of our President when he rallied his cronies to clap over the heads Justices during the last State of the Union. He was devisive through out the whole address . Casting himself and the Dems as THE ones. There were three equal branches presedent but he cut the Justices, the Republicans out.Shame on him.

  28. Carolyn Merritt says:

    Thank you Donna for explaining the last paragraph of Article III.

  29. Richard says:

    I would submit that our problem is the Senate does not “advise and consent” they merely vote for thier party ideology which is clearly not “advise and consent” What we need to do is have a block of Senators that have sworn to uphold thier oath in a contract with the Nation/people that they will not consent to approve any Federal Judge, at any level, that does not uphold the constitution as written. Any judge with documented activist views based on thier teachings, writings, speeches or involvement in legal cases will not be consented to. This group of senators can cut across party lines but are people with proven honesty and integrity with a track record of “non-flip-flopping”.
    Presently Senators bring up just such documentation of activism and the nominee softens thier prior tone or trys to explain away thier true intentions or words based by saying they also agrued the other side. They do this even though no Senator or citizen believes them and knows exactly what they will do. In my humble opinion there is no other side to the constitution. If the law needs to be changed the Legislature can amend using the constitutional process. Judicial activism has eliminated Christian values from our educational system and our public squares (clearly never the intent of the religious founders) which has hurt our culture in both government and the private sector. In additon, small human infants are legally murdered by thier own mothers (many who are scared, confused and under pressure from abortion activists) These are just two examples of activism in the last century. Now we may have forced government healthcare and a double taxation situation with a new Value added tax. Not to mention the existing double taxation on wages and then on investments made after taxes are already paid on the principal. No one has allowed these thing to occur but our elected officials. About 535 elected congressional members voluntarily choose to erode our constutional rights for what? Power? Money? A liberty and freedom restricting socialist form of goverment? It seems to me to be treason to do such a thing but sadly the founders never envisioned the moral breakdown of our society to this extent or they would have allowed for the people to impeach via a majority ballot vote instead of congress. I know we can turn this around if we have a firm strong backbone and dedicated sites like this one to educate our citizens and future citizens to take back our liberties.

  30. Lillian Harvey says:

    Hi all!
    Donna, the example you used to clarify the dangers of relying on precedents over first principles is wonderful. It has really made me uneasy to hear some of the decisions that have been made based on case precedent rather than constitutional understanding. Thank you!
    Bill, the words “good behavior” got my attention when I read them as well. If applied by today’s definition, President Obama could have fired the Justices who ruled “badly” right in the middle of the State of the Union address. Frankly, it made me a bit nervous to think this after reading your blog.
    Thanks for all of these great blogs. Really, really wonderful.

  31. Spider says:

    @Bill: Brilliant argument. Bravo.

  32. Susanne says:

    Lynne N,

    I agree with what you said about being bothered by the way Supreme Court Justices are selected. It’s sad that congressmen can’t agree if a judge has ruled in the past according to the constitution. Before the presidential election Obama said he would choose justices that used empathy to interpret the law. That sent up red flags at the time! Eminent domain rulings have been especially troubling in recent years, as you said.

  33. I see two things that keep legislation from the bench going. One is the somewhat twisted interpretation of certain passages in the Constitution, particularly the Commerce Clause. The second is the dependence on Legal Precedent (a concept from Common Law), rather than Original Intention of the Founders.

    Maybe what we need is an amendment, not to change what the Constitution says, but to make a little less ambiguous a few key passages. And I would like it also to put Original Intention above Legal Precedent.

  34. Susan Craig says:

    Part of this problem is exacerbated by the fact that sometime (I think in the 20th century) Law schools stopped teaching Constitutional Law and switched to Case Law. Now I think it is a rare law school that places an emphasis on Constitutional law.

  35. Robert Shanbaum says:

    @Richard, regarding your question about (what amounted to) term limits, I suspect from your description that you read The Virginia Declaration of Rights, an important predecessor to the federal Constitution, in which the following appears:

    Section 5. That the legislative and executive powers of the state should be separate and distinct from the judiciary; and that the members of the two first may be restrained from oppression, by feeling and participating the burdens of the people, they should, at fixed periods, be reduced to a private station, return into that body from which they were originally taken, and the vacancies be supplied by frequent, certain, and regular elections, in which all, or any part, of the former members, to be again eligible, or ineligible, as the laws shall direct.

    You may notice that the judiciary is explicitly excluded from the requirement.

    I also note the use of the precatory “should” in the cited section. Was it poor drafting, or intentional? The author (George Mason) seemed to have a tendency to write in that manner.

    Inasmuch as some of the Constitution’s language was borrowed from The Virginia Declaration (some of it verbatim), it is required reading:

    http://www.archives.gov/exhibits/charters/virginia_declaration_of_rights.html

  36. Gene Corno says:

    Don Barton is right on target. Jefferson wanted us to be ‘bound by the chains of the constitution’… There is a mechanism to change the constitution as Don Barton said so succinctly. To treat the constitution as a “living document” as some would have you believe it is…is to have no constitution at all. What you wind up with are politicians making rules as they go…a rule of man instead of the rule of law. Do not allow anyone to tell you the constitution is a LIVING DOCUMENT…if followed and adhered to it works just fine. It just doesnt suit the politicians mad dash to get all their bills through. I personally think that congress writes too many bills anyway. Which means they spend way to much. They should rather be more concerned with the perfection of a their bills, quality not quantity.

  37. Susan Craig says:

    One of the things that sparked the Revolution was that the King of England determined that the Magna Carta and the other documents governing England could mean whatever he wanted them to at the time (aka a living document).

  38. Linda LaFonte says:

    Your contributors are so knowledgeable — thanks for having them. I have been so curious about the origins of the judiciary and its independence. I now far better understand.

  39. Frieda says:

    It’s interesting to me that most of the comments focus on the role of the judiciary branch of government. What about treason? Have we commited treason against ourselves by giving to governments or organizations that use those resources to harm us? Are we giving, or have we given too generously as to commit treason against ourselves?

  40. yguy says:

    Chuck Plano, Tx says:

    “The Supreme Court was not granted Constitutional review in the Constitution it assumed that power in 1803 when it ruled in Marbury vs Madison that part of the Judicary Act of 1789 to be unconstitutional.”

    Actually Marshall made a good case for judicial review as a general principle in Marbury, though in the same opinion it seems he misapplied it to the exceptions clause so as to avoid a confrontation with the sitting President.

Guest Essayist: Andrew Langer, President of the Institute for Liberty

While much attention has been focused on Congress and Article One’s legislative powers, the Constitution provides for three branches of government and Article Two  of the U.S. Constitution outlines powers for the executive branch i.e., the office of the President and those who serve under him. In addition to enumerations of the powers to nominate appointees (with the advice and consent of Congress), the power to make treaties (which have to be ratified by the Senate),  and his executive or enforcement authority Article 2 also discusses the wholly unique system of electing a president, known as the electoral college.

In this particular post, we will focus on two aspects of Article Two: the enforcement of laws passed by Congress, as well as the issue of the Electoral College.

As is clear through the structure of the Constitution itself, power flows from the people to the government via the legal structure called the Constitution.  In its opening statement, Article 2 reaffirms this concept, making it clear that power “vests” in an “executive” branch of government—meaning that it administers, oversees, and “executes” what is the legislative “will” of the people.

Because the system is one of checks, balances, and diffusion of power (the founders were skeptical of concentrated government power), powers enumerated to the federal executive are undercut by powers enumerated to Congress under Article 1 (and vice-versa).  The President is  Commander-in-Chief of the military under Article 1, but it is only Congress that can declare war.  On the other hand, while Congress passes laws, Article Two vests with the Executive Branch the requirement that those laws are “faithfully executed”.  In the modern executive branch many of these tasks are carried out under what is called “administrative law” via the federal regulatory state.

Issues have arisen when the agencies carrying out the execution of Congressional laws appear to exceed their statutory mandate and often challenges arise charging that an agency has effectively undermined Congress’ power to make the law.  While there may be an inevitable tension between the executive and the legislative branch in terms of the scope of their power, Article Two contemplates that the Executive branch engage in enforcement and execution of laws with little to no lawmaking like behavior occurring.

Critics charge that as Congress grows more unwilling to take proper care in writing laws that are clear and limited in scope, they have invited the Executive Branch to assume far more authority in the interpretation and execution of those laws leading to a greatly convoluted regulatory state.    However as the writers of the Constitution make clear the powers of the executive are to be checked by those of the other two branches such that a significant deviation from the Constitution could be subject to challenge in Court or by Congress through its powers to tax and appropriate etc.

Now let us turn to the electoral college.

When envisioning the Republic, the founders recognized that competing interests would require that the demands of a majority group be weighed against the impact of those demands against the rights of minority groups (political or otherwise).  Thus, we are not a pure democracy, but a representative republic—and, the American Electoral College was born out of those notion.

One of the challenges to the Republic, the founders knew, would be the inherent conflict between the interests of rural Americans and those who lived in cities.  Different things are important to people living in farming communities than to those who live within urban centers—there are different public policy priorities, at the very least, and possibly different sets of values and societal mores.  But in a pure democracy, regions with the highest populations would drive the public policy agenda, potentially sacrificing the interests of those in rural or desolate regions on the altar of the regions with the most people.

The founders didn’t want the selection of the President to be by “urban center fiat”, so they devised a mechanism to level the playing field.  It is akin to how the World Series is played:  it isn’t decided in one single game, or which team scored the most runs in a series of different games.  It is broken down into a “best of seven” contest, leveling the playing field by allowing each time numerous chances to score incremental victories.

As initially envisioned, each state gets a number of votes equal to the sum of the number of House members plus the number of Senators.  That way, even the states with the smallest population have a minimum of three votes, and are thus equalized.  Moreover, when combined, the electoral votes of these smaller or less populous states could challenge or overcome the electoral votes of larger and more populated ones.  Thus, the common interests of more rural states could be effectively aggregated, and their rights protected.

Unlike many other systems which rely on simple majorities our system ensures that the President actually presides over “united” states and has a built in constituency that is broad and enduring.   The end result is the President of our nation ultimately chosen by the electoral college far more broadly represents the interests of the nation as a whole.

April 22, 2010

Posted in Article II of the United States Constitution, Constitutional Scholar Essays | Edit | 73 Comments »

Guest Essayist: David Bobb, Director and Lecturer in Political Science | Allan P. Kirby, Jr. Center for Constitutional Studies and Citizenship | Hillsdale College

“He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people, and eat out their substance.”

This complaint, however current it might sound, was lodged not against any occupant of the White House.  Rather, American revolutionaries made this claim against King George III in the Declaration of Independence.

Imbued with the “Spirit of ’76,” and given voice by a young Thomas Jefferson, early Americans also indicted the British King in the Declaration “for suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.”

The Crown had assumed all legislative, executive, and judicial powers, the colonists claimed.  Thus they declared that the “prince” (King George III) had become a “tyrant.”  And a tyrant “is unfit to be the ruler of a free people.”

To understand Article I of the Constitution—and the entirety of the “supreme law of the land”—you have to understand the argument of the Declaration of Independence.  The Declaration indicts the King for aggrandizing his power at the expense of the people.  It also acts as a blueprint for limited government by making the bold claim that our rights come not from any government but instead from the Creator.

The Constitution, then, gives structure to our liberties—and to limited government.  Article I of the Constitution is the foundation of this structure. Made up of ten sections, Article I is the longest of the Constitution’s seven articles.  Its length should not confuse us, however, for its meaning is clear if we read it carefully.

Article I, Section 1 says that the law-making authority in the national government resides in Congress.  Not in the Crown, and not directly with the people.  We the people should not vote directly on every issue, the Founding Fathers held.  That strictly democratic form of government can too easily lead to tyranny.  Instead, we the people will elect representatives.  This is republican rule, and conduces more to liberty than any other form of government.

The national legislature is bicameral, with a House of Representatives elected directly by the people, and a Senate originally composed of members elected by the state legislatures.  The Seventeenth Amendment, adopted as part of Progressive reforms in the early 20th century, required direct election of senators, a significant departure from the Founders’ Constitution.  Each state, the original Constitution specified, gets two senators (this is the only part of the Constitution today that cannot be amended).

Article I, Section 8 gives an enumeration, or list, of the powers of Congress.  When compared to the anemic Articles of Confederation, which even denied Congress the power to tax, the enumerated powers were quite expansive.  Compared to the scope and scale of congressional authority today, the enumerated powers seem quaint, kind of like a powdered wig or tri-cornered hat.

“That’s all we get to do?  That’s it?”  One can almost hear the response of many members of Congress today if they were to read Article I, Section 8 of the Constitution.  Asked to cite the constitutional justification for the recent health care bill, for example, one member of Congress said he doesn’t “worry about the Constitution on this.”  Another member, the chairman of the House Judiciary Committee, claimed that the legislation was authorized by the “good and welfare clause” (he was probably thinking of the General Welfare Clause of Article I, Section 8, Clause 1)  Still others have cited the Interstate Commerce Clause (I.8.3), while a number have cited the Necessary and Proper Clause (I.8.18).

I hope that we can discuss and debate the constitutional status of the health care law as part of this blog.  Whether you’re a Republican or Democrat, for or against the law, it seems that we should all agree that for a bill to legitimately become law it has to be grounded in the Constitution.  Otherwise Article I doesn’t mean what it says, and the foundation of our liberties is left shaky and unsure.

It’s lately been said that politicians should prepare for elections by abiding by one simple rule, “It’s the economy, stupid.”  The economy is important, to be sure, but I hope that in our national debate, today we can remember most of all that “It’s the Constitution.”  We’d be stupid not to.

Wednesday, April 21st, 2010

Posted in Article I of the United States Constitution, Constitutional Scholar Essays | Edit | 138 Comments »

140 Responses to “April 21, 2010Article I of the U.S. ConstitutionGuest Blogger: David Bobb, Director and Lecturer in Political Science | Allan P. Kirby, Jr. Center for Constitutional Studies and Citizenship | Hillsdale College

  1. Richard says:

    This is certainly an enlightening dialogue and many of the comments are well supported. I would like to add that taxes “being applied uniformly throughout the States” is interesting because we certainly do not have a fair tax system as so many pay nothing and get most of the benefits. Our Founding Fathers never intended to have this extreme level of “vote buying” by taxpayers funds. The progressive tax we have today is applied uniformly within the states, however it is not applied uniformly among the people. Whereas a flat tax would do this. A constitutional amendment limiting the tax to less than 15% would take away the congressional power and ability to “buy votes” through entitlements. Another view might be to restrict a citizens vote in any year in which they receive an entitlement exceeding $1000.00 or some similar amount. Niether would be unconstitutional.

  2. Richard says:

    This is certainly an enlightening dialogue and many of the comments are well supported. I would like to add that taxes “being applied uniformly throughout the States” is interesting because we certainly do not have a fair tax system as so many pay nothing and get most of the benefits while a few pay the majority and are constantly asked for more. It is a path to economic destruction. I have visited several socialist and communist nations in my travels and Americans have no idea of the human suffering, death, and poverty of a controlling communist or socialist goverment that always limits the individual freedoms we take for granted. Our Founding Fathers never intended for our “tax system” to have this extreme level of “vote buying” by taxpayers funds or social engineering. Envy is one of the biblical seven sins for a good reason. We have lost our national moral compass as we pit hatred (class envy) against hard work and success. Some citizens with a lacking moral compass want to covet what thier neighbor has. The Founding Fathers wanted to remove the chains of government on the individual and let them strive for thier own happiness and dreams. Progressives were certainly instumental in removing the biblical moral teaching from our schools. The progressive tax we have today is applied uniformly within the states, however it is not applied uniformly among the people. Whereas a flat tax would do this. A constitutional amendment limiting the tax to less than 15% would take away the congressional power and ability to “buy votes” through entitlements. Another view might be to restrict a citizens vote in any year in which they receive an entitlement exceeding $1,000.00 or some similar low amount. Niether would be unconstitutional.
    The constitution also grants power to the federal government to provide for the common defense. If we have to disband the armed forces every two years we would soon be overtaken by our enimies and if Officers we appointed by the states there would be no uniformity within the military. We would have lost WWII if we had to disband after two years, ditto for the Civil War, Revolutionary War, WWI, Korean War. We gain peace through military strength by constantly training, testing, and improving weapons systems so our enimies understand the high price they would pay for trying to dominate or rule our citizens.
    On heathcare, I beleive it violates all aspects of “the Right to Life, Liberty and the Pursuit of Happiness” as unelected goverment workers will decide who and what type of care an idividual may have. (Surgery or pain pills). A citizen can no longer pursue thier individual health choices. Government can directly limit thier life and happiness. I hope this can be repealed as it will cause severe pain to citizens to watch loved ones be denied the proper healthcare because the govenment has to ration care as in all other nations that have moved to socialized government healthcare.
    I look forward to tomorrows comments….

  3. Lillian Harvey says:

    Article 1, Section 7: the process for passing legislation states “..the votes of both Houses shall be determined by yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively.”

    When House Minority Leader Boehner called for the vote of each individual to be recorded at least one week before the Healthcare vote was taken in the House, and also that night on the floor of the House again, why did the “Speaker” ignore the request or call it “out of order”? It seems to me that it is out of order for the people being represented not to know exactly who voted Yes to this bill. We know all the Republicans voted no, but not which Democrats voted yes or no. It seems to me that this tactic makes things very slippery and murky for those being represented.

    Raymond mentioned needing an amendment to force government to be open. It appears the mechanism for transparency in the votes already in place for 220 years isn’t honored and We the People are left guessing. Someone above mentioned that the devil is in the details. I think God is in the details and this is another one of them for us to look at carefully.

  4. Tammy Beard says:

    Maggie,
    Question: If “all Duties, Imposts and Excises shall be uniform throughout the United States;”
    how can there constitutionally be different income tax brackets? Doesn’t seem very uniform.

    This deals with indirect taxes, not income taxes. The indirect taxes must be the same from state to state. In 1913, the Sixteenth Amendment was passed allowing income taxes.

  5. Richard says:

    I wanted to add one thought to my earlier comment on taxes. Actually the Constitution specifically said there will be no tax on individuals (Income Tax), but the progressives worked around this by adding the XVI amendment which will come later in our readings. This Amendment was originally passed to fund WWII and who was going to vote against funds to fight Germany and Japan’s agressive war of world dominance. It was to be repealed after the War but amazingly was not and has been modified to mirror class envy and morphed into a progressive tax on those who work hard and are successful. It will be interesting to hear the history from those who know on this matter as the current administration has openly confirmed the goal of redistribution of individual wealth by the government to whim they choose. It is similar to the british crown taxing colonist hard work to support the royal elitists power and position.

  6. Gitel says:

    @Richard – I’m not sure where you got your information. The income tax was proposed in 1909 and ratified in 1913. That was before WWI, and years before WWII.

  7. Gitel says:

    Actually, I meant to say the 16th Amendment, not “income tax.” There were income taxes before the 16th Amendment.

  8. Kristine says:

    Well-framed question, Debbie Beardsley, to which I say amen! What your blog entry asks is precisely what I would like to know. And in a related sense, Party aparatus in the Houses seem to be causing we the people who are supposed to be represented to feel as though we are being completely ignored! How can this be. How can Representatives be made to represent when they do not even listen? Being only 1/300 millionth of the population and with powerful moneyed interests, how do we know OUR STAND is represented for sure? We suspect, it is NOT. That begs the questions, WHAT DO WE DO ABOUT THAT?

  9. Will says:

    Anna Marie says:
    April 22, 2010 at 12:56 am
    “… in the end we will become a stronger nation, a nation UNDER GOD!!!”
    ——–

    Taking a strict constructionist viewpoint, neither God or Jesus is mentioned anywhere in the Constitution’s text and therefore has no place in federal governance.

  10. Thomas Soyars says:

    I have to disagree with some of what R. B. McGinnis said in relation to the economy. The power to tax, though no direct, capitated or income tax, tariffs, regulation of interstate commerce were not designed to regulate the economy but to pay for the functions of government enumerated in the Constitution. How else were they to pay the debt, their own salaries and the salaries of the militia? Was the intent to fund the limited operations of government laid out in the constitution or was the goal to regulate the economy?

    Another item relates to the quote relating to the KATZENBACH v. McCLUNG, 379 U.S. 294 (1964) case. The court ruling said “Confronted as we are with the facts laid before Congress, we must conclude that it had a rational basis for finding that racial discrimination in restaurants had a direct and adverse effect on the free flow of interstate commerce….” Note the term rational basis. It was not decided on a constitutional basis but on what they could rationally support. The court has continued to swing on the issue of what is allowed under the commerce clause. Cases have been decided that operating a steamship on a river within one state is interstate commerce and subject to regulation. Minimum wage, child labor, and agricultural relief laws were all found to be items that the U.S. government had no right to regulate under the commerce clause. Mining, liquor, oil and electrical production were all deemed to be outside the commerce clause while meat production and wheat were found to be within (production of wheat for one’s own consumption could be subject to national quotas because that could impact national wheat prices). After, Gibson v. United States, 166 U.S. 269 (1897) the court rarely ruled on the commerce clause. During the New Deal the court changed the focus of how the court viewed commerce and what was to be regulated. A central issue was whether the courts or the legislature should decide what commerce is and the courts began deferring to congress saying that determining whether legislation impacted commerce was a legislative function. At question was whether it was more appropriate to address the issue through the courts or the ballot box and they basically fell on the side of the ballot box, thereby abdicating their responsibility to be a check and balance over congress. Finally, the Supreme Court in United States v. Darby Lumber Co., 312 U.S. 100 (1941) said that the 10th Amendment is but a truism and was not considered to be an independent limitation on Congressional power, thereby essentially ruling that congress is not limited by the Constitution.

    I agree with the decisions of the court in the cases of Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964) and Daniel v. Paul. 395 U.S. 298 (1969) but not based on the commerce clause. For that, I go back to the preamble and rely on establish Justice. Slavery, the treatment of Native Americans, and Asians Americans during World War II and

  11. Thomas Soyars says:

    Debbie, there is no prohibition on the President proposing legislation to Congress or lobbying for specific items. the Constitution prohibits the President from passing legislation or acting as a judge over it other than by veto. The problem arises when one party holds the presidency and both houses of congress by a super-majority. In that case the president can propose legislation and have limited resistance.

  12. Ann says:

    How are the classes for Senators determined? Is it by State? My State has 1 class I Senator and 1 Class 2 Senator. Does that ever change? Am I correct in assuming the class only has to do with making sure only 1/3 is up for re-election at a time? They all serve 6 years regardless of class right?

  13. I must confess that I’m going to have to reread after I finish this 90/180. I’ve read the Amendments, but this is the first time I’ve read the Articles of the Constitution. Apparently I’m not the only one having a little trouble with the double negatives. I’ve been telling everyone I know about this, hopefully they will be able to go back on this Web site to the days they haven’t read to catch up. I love the dialogue and the experts input on the Constitution. I have just recently purchased “Original Intent” by David Barton I haven’t read it yet I’m trying to keep up with all the reading recommendations. I do know that “America’s God and Country” by William Federer is a must have, I love this book. It is an Encyclopedia of Quotations from our Founding Fathers and others. There is no question what the intent of the Constitution was and that it we were designed to be a Christian Nation.

  14. Thomas Soyars says:

    One last comment on commerce, in Gonzales v. Raich (previously Ashcroft v. Raich), 545 U.S. 1 (2005), the U.S. Supreme Court held that marijuana gone at home for personal use was subject to the Commerce Clause. Justice Thomas dissented saying “Respondents Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything – and the federal Government is no longer one of limited and enumerated powers.”

  15. Robert Shanbaum says:

    The question was raised as to whether the health care reform bill, as a bill requiring appropriations (whether that makes it a “bill for raising revenue” notwithstanding), did not have to originate in the House.

    The question may be mooted by the fact that it did originate in the House, having been introduced as H.R.3590 on 9/17/2009 by Rep. Rangel – even though it eventually became known as “the Senate Bill.”

    But there is an interesting Constitutional question here: the original contents of H.R.3590 were completely replaced by amendment in the Senate. So, did the bill “originate in the House?”

  16. Debbie Beardsley says:

    Thomas,
    It just seems to me that by the President strong arming members of Congress or bribing them to vote the way he wants he is in effect legislating. Isn’t Congress supposed to represent the people and not the President?? Once it is submitted to him he can then decide to sign it or veto it but until it gets to him he should keep his hands off.

  17. Spider says:

    I have seen a few comments on the 17th Amendment, and thought I might expand on it here, as well as give a couple of reasons why I believe it should be repealed. We will get into the Amendments when we read them on Monday, April 26, but I wanted to include this here, as it pertains directly to Article 1, Section 3, Clause 1.

    James Madison explained States representation in the Federal Government as such:

    “Whenever power may be necessary for the national government, a certain portion must be necessarily left with the states, it is impossible for one power to pervade the extreme parts of the United States so as to carry equal justice to them. The state legislatures also ought to have some means of defending themselves against the encroachments of the national government. In every other department we have studiously endeavored to provide for its self-defense. Shall we leave the states alone un-provided with the means for this purpose? And what better means can be provided than by giving them some share in, or rather make them a constituent part of, the national government?”

    At the time the Constitution was written, U.S. Representatives were to represent the people and were to be elected by the general population of a state by popular vote.

    U.S. Senators were to represent the States and were to be elected by the State Legislatures. From Wiki: “It was believed that while an unqualified candidate might win a popular-vote majority through demagoguery or superficial qualities, the legislature, which could deliberate on its choice, and whose members had been selected by their constituents and had experience in politics, would be safe from such folly.”

    The 17th Amendment took away the States representation by requiring that U.S. Senators be elected by the general population of a state, effectively reducing them from an equal partner with the Federal Government to, at best, another Representative, and at worst just another lobbyist, vulnerable to special interests influence, which has resulted with the loss of State Sovereignty and States’ Rights.

    There were two main reasons the 17th Amendment was adopted in 1913; One was the deadlock of State Legislatures when electing U.S. Senators. The other was the corruption of the State Legislators.

    One possible protection from dead-locked State Legislatures is the provision that if a State Legislature does not fill a vacancy or elect a U.S. Senator within say, 30 days for example, the Governor shall appoint the U.S. Senator.

    Our protection from corrupt State Legislatures are open caucuses, campaign disclosure statements, term limits, and the fact that we now have highly visible public information, freely accessible with the World Wide Web.

    Thanks for letting me expand on this subject. Tell me what you think, and keep up the great discussion!

  18. Robert Shanbaum says:

    @Gitel, a minor correction: there were indeed income taxes prior to the XVIth Amendment, from 1862-72, and again in 1894-95, when taxes based on income derived from property (interest, dividends, rents) were ruled unconstitutional by the Supreme Court in Pollock v. Farmer’s Loan & Trust (by a 5-4 vote!).

  19. Sharon Pharr says:

    It seems to me so far, that the Congress was to hold a few specific roles and jurisdictions, and the people, then the states everything else. Things are turning upside down. I think we should repeal the 17th amendment, return the selection of Senators to the states, and expand the 22nd Amendment, to include restricting terms of the members of Congress. The wisdom of that provision is shown in the career politicians that now dominate Congress, with power empires, and inflated influence. This would also attract talented people who have successful careers in other areas to serve. I also believe that in returning power to the states and local jurisdictions, it would be easier to weed out the potentially corrupt.

    I have a question, if the Healthcare Bill coerces a citizen to buy insurance under penalty of fines, and enforced by the IRS, doesn’t that make the insurance payment a form of taxation, even though the money goes to a 3rd party, the insurance company?

  20. Philip Thorrez says:

    I’m new at blogging and if my protocols and forms are incorrect, please excuse me:
    I realize I’m a bit late to this reading but have to ask:
    @Thomas Soyars said: “Finally, the Supreme Court in United States v. Darby Lumber Co., 312 U.S. 100 (1941) said that the 10th Amendment is but a truism and was not considered to be an independent limitation on Congressional power, thereby essentially ruling that congress is not limited by the Constitution.”

    This is the scariest comment I’ve ever heard and I wonder: has there been much further testing of this ruling and how entrenched in precedent is it? I mean “a truism”?! How much clearer does it need to be that this amendment was MEANT to be a restriction of federal power.

  21. Spider says:

    @Philip Thorrez: Welcome to the discussion – better late than never. Your “protocols and forms” are just fine. Leaving comments in a public forum such as this is just like any other public interaction; be polite and civil, and you’re way ahead of the game.

    As to your question, might I suggest taking a look at West’s Encyclopedia of American Law for a comprehensive overview of the Supreme Court’s various interpretations of the 10th Amendment through history.

    It’s really pretty stunning to realize just how often the 10th Amendment, something Thomas Jefferson once described as “the foundation of the Constitution,” has been virtually ignored or trivialized.

    I truly hope the upcoming challenges to the President’s health care reform law will once again put some more authority back into the 10th Amendment. I’ll probably be disappointed, but one can ‘hope,’ right?

  22. Anthony Viola says:

    Will says “Taking a strict constructionist viewpoint, neither God or Jesus is mentioned anywhere in the Constitution’s text and therefore has no place in federal governance.”

    You missed ths: “In the Year of our Lord one thousand seven hundred and eighty seven..”

  23. AllisonW says:

    Interesting fact I thought to share:

    According to Article I Section III, the Vice President, President of the Senate, can vote on any piece of legislation whenever the members of the Senate are “equally divided.” So whenever the vote is split 50-50, the Vice President can essentially decide the fate of the bill.

  24. […] April 21, 2010Article I of the U.S. ConstitutionGuest Blogger: David Bobb, Director and Le… […]

  25. Taylor Michael says:

    A very intriguing paragraph I discovered in the first article is the last paragraph in Section 9.
    It says ;

    “No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State”

    What I find so interesting about the subject is the fact that America already declared itself independent from Monarchal England, however the founding fathers make sure that we as a country do not associate ourselves at all with any Monarchy, and if someone does, than the United States shall not recognize it at all, and they will not accept any “present … of any kind whatever, from any King, Prince, or foreign State”, thus putting the icing on the cake, so to speak, of total detachment from any kind of English Monarchal society.

  26. Kristine says:

    I would like to understand the electoral college better from Article 1, section 2.

    I realize we are now beyond that, but it is not clear to me if we directly elect our representatives as I thought we did, or if electors are doing the electing .

    If anybody has insights and links, please reply.

    Thanks.

    Kristine

  27. Kristine says:

    I figured it out. Article 1, Section. 2 first paragraph meaning of Electors refers to a state’s voters and not electors in the electoral college for the presidential elections. That is what I thought; however, for a while there I thought I might have been wrong all my voting life. I’m relieved to have this cleared up and it was good to re-read Articles 1 and 2.

  28. Bob Greenslade says:

    Kristine-hope this helps.

    What are the constitutional provisions for the electoral system?

    The electoral process is set forth in Article II, Section I, Clauses 2-4 of the Constitution for the United States. Clause 3 has been superseded by the 12th Amendment as ratified by the several States in 1804. Provisions of the 12th Amendment have been superseded by the 20th Amendment as ratified by the States in 1933.

    Do the American people vote directly for a President and Vice President when they cast their ballot?

    No. When the American people cast their vote in a presidential election they are actually voting for individual within their State called an “elector.”

    Who are the electors?

    The electors are representatives just like the members of Congress. Unlike members of Congress who are elected for a specific term of years and cast numerous votes while in office, electors perform a single function once every four years. They are entrusted with the responsibility of voting for the President and Vice President of the United States.

    How are the electors chosen?

    The legislature of each State is authorized by Article II, Section I, Clause 2 of the Constitution to prescribe the mode for appointing its electors. State election laws generally entrust that duty to the various political parties because each party has a slate of electors pledged to their candidates. Thus, if a State has five political parties qualified for the ballot, it will have five separate blocks of electors―one block for each political party.

    How are the electors in each State chosen to vote?

    The electors chosen to vote for each State are those of the political party that wins a plurality of the popular vote within the State. For example. If an Independent Party candidate wins the popular vote in California by one vote, then that party’s slate of electors are elected to vote for the State of California. In Maine and Nebraska, two electors are chosen at-large by the statewide popular vote and the rest are selected by the popular vote in each congressional district. This allows for a split slate of electors to be chosen in those two States.

    In the event of a tie in a State’s popular vote, the laws of that State would determine the procedure for breaking the tie. If there was still a tie after a re-count, there would probably be a run-off election to determine the winner.

  29. Lillian Harvey says:

    Thomas, Philip & Spider, well said! I appreciate the real push back to what you’ve all implied is the trivializaion of the 10th Amendment. Almost half of the States are involved at this time, 42%. In an earlier post, I was reacting to these readings by thinking a Constitutional Convention was needed to solve some of the problems. Now, I feel that some amendments may need to be repealed and others have their language clarified to reflect life today, like the recess appointments clause. But even allowing a small opportunity for any group to do away with this incredible document is inconceivable to me. No convention for sure. But calls for Constititutional language that fortifies Amendments like the 10th, oh yes! I love that our clarifications and corrections are recorded into the document as amendments. As humans, we make mistakes, learn and grow. This amazing document records our growth as a free society, correction & forgiveness of mistakes included. The Federal gov’t has taken powers from the States never intended for it. No matter how long it takes, we can’t give up the fight to re-fortify the 10th Amendment. Enough is enough.

    I love the phrase, think globally and act locally. It is a modern day sound bite for James Madison’s eloquent explanation of where power really resides in a free society. A state or community problem may become part of the national narrative, but the way to resolve it works best as locally as possible. Let each community see the problem through its own special lens, apply meaningful solutions and the people are served well. If a national element is needed, add an amendment to the Constitution. It takes time to do that and, if the locality can’t resolve the problem themselves, the final amendment will help the process along.

    Taylor, I feel your post underscores the “kick in the gut” reaction most people have when they see any of our Presidents bowing to kings or foreign rulers. They represent the United States of America – We the People. We the People do not bow to kings. We do not serve their will. Americans shake hands in greeting. If these kings do not want to shake hands, fine. But no bowing in our name, thank you very much.

    Allison, great question! If a bill must be passed by 2/3 of the Senate, how is a tie ever significant? The bill passes or it doesn’t. Too simple?

  30. Bob Greenslade says:

    Philip Thorrez-the reason the 10th Amendment is a truism can be found in the words of James Wilson.

    In October of 1787, in a speech at Independence Hall, Wilson, a Federalist from Pennsylvania, explained the proposed constitution and answered some of the criticisms being leveled against it. In his speech, Wilson succinctly stated why a bill of rights had been omitted from the proposed constitution. He also explained the system of limited government that would be established if the document was ratified:

    “It will be proper…to mark the leading discrimination between the State constitutions and the Constitution of the United States. When the people established the powers of legislation under their separate governments, they invested their representatives with every right and authority which they did not in explicit terms reserve…if the frame of government is silent, the jurisdiction is efficient and complete. But in delegating federal powers, another criterion was necessarily introduced, and the congressional power is to be collected, not from tacit implication, but from the positive grant expressed in the instrument of the union. Hence, it is evident, that in the former case everything that is not reserved is given; but in the latter the reverse of the proposition prevails, and everything that is not given is reserved.

    This distinction being recognized, will furnish an answer to those who think the omission of a bill of rights a defect in the proposed constitution; for it would have been superfluous and absurd to have stipulated with a federal body of our own creation, that we should enjoy those privileges of which we are not divested, either by the intention or the act that has brought the body into existence. For instance, the liberty of the press…what control can proceed from the Federal government to shackle or destroy that sacred palladium of national freedom? * * [T]he proposed system possesses no influence whatever upon the press, and it would have been merely nugatory to have introduced a formal declaration upon the subject—nay, that very declaration might have been construed to imply that some degree of power was given, since we undertook to define its extent.”

    Wilson, who had unsuccessfully advocated a strong national form of government in the Federal Convention, clearly understood the system of limited government that would be established by the proposed constitution. Since the federal government would be granted limited enumerated powers, every power not granted would be denied irrespective of whether the document contained a bill of rights.

    Thus, even if the 10th Amendment, which was part of the Bill of Rights, had not been adopted, the principle, as stated by Wilson, that “everything…not given is reserved” would still be in operation-just not enumerated.

    The Amendment is a re-statement and affirmation of the principles of limited government and enumerated powers. They exist independent of the 10th Amendment.

  31. Robert Shanbaum says:

    @Lillian – Here’s an historical note that you may find interesting, since you mentioned shaking hands. After having been inaugurated as president, Washington refused to shake hands, thinking it beneath the dignity of the office.

    Also, for a bill to finally pass the Senate does not require a 2/3 vote – the procedural step that requires a 2/3 vote is to end debate on a motion (called “cloture”, a feature of the rules of the Senate, which you now know are left up to the Senate by the Constitution), which is a necessary step that precedes an actual vote on whether the motion shall be adopted or rejected.

    Yesterday, for example, in a vote to end debate on a motion to allow a financial reform bill to proceed to the floor (which is itself a required procedural step) the yeas came up short of the 60 votes required by the rules… so technically, I guess you could say that the debate on that motion will go on until the end of the current session, at which point, the motion vanishes, having never been directly voted upon.

    As mentioned, the only relation of Congressional rules to the Constitution is that it explicitly leaves them up to the each House. But I rather doubt that any of the participants at the Philadelphia Convention would have aniticpated a rule effectively requiring a supermajority in the Senate.

  32. Robert Shanbaum says:

    @Lillian – I neglected to mention Washington’s preferred mode of greeting, given that he did not shake hands.

    He bowed.

  33. Debbie Beardsley says:

    Re: Anthoney Viola – I do not think there was any reference to God intended by placing Year of our Lord before a date. It was a common term used at the time and is included in the Julian and Gregorain Calendars to reference the epoch after Jesus was born. Anno Domini is the Latin way to say the same thing.

    Stop looking for religious reference where none was intended. Thats how we get in trouble and move very far away from the Constitution.

    I fully believe the founders intent was not to support a specific belief or church but to allow everyone the freedom to choose what they belive in.

  34. yguy says:

    ‘…the 10th Amendment is a truism…’

    ‘Thus, even if the 10th Amendment, which was part of the Bill of Rights, had not been adopted, the principle, as stated by Wilson, that “everything…not given is reserved” would still be in operation-just not enumerated.’

    Similarly it could be argued that Congress would have no authority to legislate against freedom of speech and so on had the first amendment not been ratified, but I don’t think I’d call it a truism; and if Justice Marshall’s observation that “[i]t cannot be presumed that any clause in the Constitution is intended to be without effect” is accurate, I think we may rest assured that the framers of the tenth amendment considered it as necessary as the other “declaratory and restrictive clauses” in the Bill of Rights.

  35. JoeSwiss says:

    Art 1, S 10: No state shall, without the consent of Congress, … or engage in War, unless actually invaded …

    This was a point I had missed.

    First, it seems a state may engage in war with the consent of Congress.

    Second, it seems a state may engage in war without the consent of Congress once it has actually been invaded.

    Seem to be relevant points in the current contest of opinions over Arizona’s late legislative actions. Arizona is currently under invasion by illegal aliens.

  36. al williams says:

    Can anyone explain article 1 sec 9 para 4
    “No Capitation, or other direct, Tax shall be laid,unless in Proportion to the Census or Enumeration herein before directed to be taken.”

  37. Susan Craig says:

    Yes they did not want to tax incomes (head tax).

  38. al williams says:

    So,was this section repealed by the 16th amendment?

  39. Ralph T. Howarth, Jr. says:

    Will says:
    April 22, 2010 at 1:59 pm

    Taking a strict constructionist viewpoint, neither God or Jesus is mentioned anywhere in the Constitution’s text and therefore has no place in federal governance.
    ————
    True; but a strict constructionist must be thorough and construct from all the organic documents declared by the First Congress in the midst of passing the Bill of Rights.

    They are:

    1) The Unanimous Declaration (of Independence)
    2) US Articles of Confederation
    3) The Northwest Ordinance
    4) US Constitution

    Such can be found reproduced here and is at the very beginning of the US Code 1.
    http://uscode.house.gov/download/pls/organiclaws.txt

    The very first congress instituted the Organic Laws declaration as a reference of the founding documents of the US as a collection foundational proofs of where rights, laws, and governance comes from. The US Constitution alone does not stand alone and provide enough information to describe what the legal basis of the document stands on. Legal basis did not just appear out of thin air but is predicated on legal terms and underpinnings found in the Constitution that correlate to the English Common Law and the history of constitution writing.

    Inspection of the Organic Laws finds the following words concerning religion and morality:

    Year of our Lord (Constitution, Articles, Ordinance)
    Divine Providence (Declaration)
    Creator (Declaration)
    Nature’s God (Declaration)
    Appealing to the Supreme Judge of the world (Declaration)
    the Great Governor of the world (Articles)
    Religion (Bill of Rights, Articles, Ordinance)
    Establishment of Religion (Bill of Rights) [aka: state run church]
    Morality (Ordinance)
    Mode of worship (Ordinance)
    Religious sentiments (Ordinance)
    Blessings of Liberty (Constitution) [blessings: lit. “anoint with blood”]
    Good Behavior (Constitution, Ordinance) [syn. “morality”]
    Common law (Bill of Rights, Ordinance) [that law contains many Biblical references]

    Remember also, that some states would not ratify the Constitution without assurances of a bill or rights, which includes free exercise of religion. If you strictly construct just from the text of the Constitution alone without the amendments, you can rest assure that the Constitution would not have been ratified and be moot. The Bill of Rights had to be pushed for ratification quickly to head of a call for another constitutional convention that would have rewritten the constitution. Had that movement been successful, then it may have happened that the original would have been another anal to the Organic Laws and we have a different constitution today.

    So for a strict constructionist to stop right at the Constitution and observe Jesus and God is not mentioned, and to possibly excuse Lord as being a cultural custom, and not consult supporting text, is akin to taking out an insurance policy and saying that any riders, insurance laws, and governing policies have no place in insurance governance and insurance claims.

  40. Ralph T. Howarth, Jr. says:

    @yguy — James Madison, and other Federalists, contended that the Constitution did not need a bill of rights because it was strictly a positive law document: what the federal government can do. He contended that introducing a negative law document such as a bill or rights: what the federal government cannot do, would wiggle leave room for creative inventions of new powers of government by implication and completely bypass the amendment process.

    @al williams says: so,was this section repealed by the 16th amendment?
    –Capitation tax is a head tax…not exactly an income tax. Such was more akin to a poll tax or census tax. A direct tax essentially was any tax on property like real estate or durable goods; hence the federal government does not do property taxes; but such was not entirely prohibited. If the federal made a capitation or direct tax scheme that was proportional to actual populations in a state, then the federal could lay such a tax and it would be regardless of a person’s level of income. When the income tax amendment came along, it removed the census proportion requirement on that form of tax as it would be construed as a direct tax on property being income considered as a form of your property or estate. For perspective: an indirect tax would be akin to a sales tax as a tax on commerce.