Citizens United v. Federal Election Commission (2010) – Guest Essayist: Joerg Knipprath

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In 2011, the Supreme Court decided Brown v. Entertainment Merchants Association (EMA). A California law prohibited the sale of violent video games to minors and required labelling of content and designation of suitable users. Parents would still have the choice to buy video games deemed violent and give them to their children. The law was challenged as violating the free speech rights of minors. Without getting into the raw details, as described in the state’s brief and acknowledged by some of the justices, these games invited the players to torture, murder, and humiliate characters. The attorneys for the purveyors of this entertainment assured the justices that such displays of violence were a traditional teaching tool for America’s youth, and that, unless children have unrestricted opportunity to purchase these materials, freedom of speech would be devastated.

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Justice Antonin Scalia (1936-2016) – Guest Essayist: Joerg Knipprath

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During the Senate hearings on his nomination to the Supreme Court, Judge Neil Gorsuch commented, “Justice [Antonin] Scalia’s legacy will live on a lot longer than mine.” Whether or not this is a prophetic remark is too early to tell. However, Judge Gorsuch’s statement recognizes the enormous impact that Scalia has had–and will have–on American constitutional law.

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Griswold v. Connecticut (1965) – Guest Essayist: Joerg Knipprath

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In June, 1961, the Supreme Court declined to rule on the constitutionality of an 1879 Connecticut law that prohibited the use of contraceptive devices for the purpose of preventing pregnancy, as well as the counseling of such use. The law applied to married and unmarried couples. However, the law had apparently only been enforced once, in 1940, in a test case, where the charges were dismissed after the state supreme court upheld the law. In the more recent challenge, Poe v. Ullman, two couples and their doctor from the Yale University Medical School sought a declaratory judgment that the statute was unconstitutional. The Supreme Court noted that there had been no threat of prosecution by the state, the statute had not been enforced in the past, and contraceptives were freely sold in Connecticut drugstores, so that the case lacked the genuine dispute required by the Constitution for federal court action. Several justices dissented, one of whom, Justice John Marshall Harlan II, would pave the way for the next challenger.

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Abrams v. United States (1919) – Guest Essayist: Joerg Knipprath

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“Congress shall make no law…abridging the freedom of speech, or of the press ….” Though there is some debate over its original meaning, the First Amendment is commonly thought to have prohibited administrative prior restraint on public speaking or writing. Still, a speaker or publisher was responsible for the consequences of his words. If the words were, broadly speaking, directed to incite people against the established authority of the government, it was common to punish such spoken words as sedition and printed words as seditious libel.

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The Insular Cases (1901) – Guest Essayist: Joerg Knipprath

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A large mural in the Capitol Building in Washington is titled “Westward the Course of Empire Takes Its Way.” It was painted by Emanuel Leutze in 1861 as a representation of Manifest Destiny, the optimistic world view of 19th century Americans that the country inevitably would be settled from the Atlantic Ocean to the Pacific. Manifest destiny was not a strategy or even a policy, but a slogan that represented an aspiration. It was the emergence of an American Empire. It might be a republic in form, but it would be an empire in expanse, wealth, and glory. The term was frequently used even by good American republicans, such as Thomas Jefferson, James Madison and John Marshall, when discussing their political philosophy.

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Justice Stephen J. Field (1816-1899) – Guest Essayist: Joerg Knipprath

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It is an understatement to describe Stephen Johnson Field as a giant among Supreme Court justices. He served more than 34 years on the Court, longer than any but Justice William Douglas. He authored 544 opinions, exceeded only by Justice Samuel Miller. He and his fellow justices during the 1880s, including Miller, Joseph Bradley, and John Marshall Harlan composed what, collectively, was likely the most intellectual bench in Supreme Court history.

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The Slaughterhouse Cases (1873) – Guest Essayist: Joerg Knipprath

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Presiding over a trial in the federal Circuit Court in Corfield v. Coryell (1825) to recover a seized vessel, Supreme Court Justice Bushrod Washington took the occasion to ponder the expansive scope of the Privileges and Immunities Clause of Article IV of the Constitution. Because the clause is to facilitate interstate comity and harmony, it protects citizens traveling from one state to another against having the host state abridge their rights compared to those enjoyed by its own citizens, simply on account of the visitors’ out-of-state status. Not all rights are equally important, so Washington attempted a definition. The rights were those “which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments.”

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Meyer v. Nebraska (1923) And Pierce v. Society of Sisters (1925) – Guest Essayist: Joerg Knipprath

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In The Republic, Plato designed his ideal society as one in which the wives and children of the Guardians (the ruling elite) would be held in common. This would prevent the corrosive societal effects of nepotism that result when parents raise their children and, due to their natural affinity, seek to secure wealth and status for their offspring at the expense of the common welfare. The children would be reared by officials of the State: “The proper officers will take the offspring of the good parents to the pen or fold, and there they will deposit them with certain nurses who dwell in a separate quarter.” There was also the eugenicist angle: “[B]ut the offspring of the inferior, or of the better when they chance to be deformed, will be put away in some mysterious, unknown place, as they should be.” The “children of gold,” though, would undergo rigorous, State-controlled training to prepare them for their leadership role.

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Garcia v. San Antonio Metropolitan Transit Authority (1985) – Guest Essayist: Joerg Knipprath

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In 1976, Americans celebrated a bicentennial, the anniversary of a revolution against an intrusive, heavy-handed, and unresponsive national government. Repeated petitions and remonstrances by the people’s elected local representatives had been dismissed and ignored by the political elite who controlled that far-away national government, and who considered the people ignorant bumpkins. Among the causes of revolution listed in the published indictment of that elite in 1776 had been the chief executive’s use of his quill to veto beneficial laws; his failure to enforce laws properly enacted; his actions and obstructions that clashed with pressing immigration issues; his expansion of uncontrolled bureaucracies, when he “erected a multitude of New Offices, and sent hither swarms of Officers to harass our People, and eat out their substance”; his policies that failed to secure the frontier and protect the inhabitants there against violence by marauders; and his encouragement of “domestic insurrections” that threatened social peace. Yet that chief executive had not acted alone. The legislature of that distant government had passed unconstitutional laws, such as those that overrode the people’s own local laws and altered fundamentally the constitutional relationship between the national government and theirs.

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National Labor Relations Board v. Jones And Laughlin Steel Company (1937) – Guest Essayist: Joerg Knipprath

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After his landslide reelection victory in 1936, President Franklin Roosevelt delivered a message to Congress on February 5, 1937, that decried the alleged, but fictional, congestion of judicial dockets due in part, he explained, to the incapacity of aged or infirm judges. He proposed a law that would allow him to appoint up to six new Supreme Court justices in addition to the current number, one for each justice over age 70. He repeated the gist of what came to be known as his Court-packing plan in a “Fireside Chat” to the American people on March 9, 1937.

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Champion v. Ames (1903) – Guest Essayist: Joerg Knipprath

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The Industrial Revolution created theretofore unimaginable wealth, some of which trickled down as wages to workers in the mills and factories of the 19th century. Though substandard by today’s measure, those wages were sufficiently high and working conditions sufficiently appealing to attract people from farms to the growing cities. Waves of immigrants, mostly impoverished Europeans, flooded the labor pool, as well. That labor surplus depressed wages, which, in turn, kept low-skilled workers poor, at least in relation to the growing middle and upper classes. Churches and other private relief societies undertook the increasingly urgent efforts to ameliorate the poverty of the working class.

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Baker v. Carr (1962) – Guest Essayist: Joerg Knipprath

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In 1962, the Supreme Court embarked on what has been described by one scholar as “the most significant reformist activism in which the Warren Court engaged,” other than civil rights cases involving blacks. The constitutional arena was the apportionment of legislative districts, and the case was Baker v. Carr. Chief Justice Earl Warren called Baker “the most important case of [his] tenure on the Court.” Apportionment is the periodic drawing of lines by a state for its congressional districts and for its state legislative districts. Until Baker, federal courts had stayed out of what Justice Felix Frankfurter in a prior case had called a “political thicket,” because it was a “non-justiciable political question.” Such questions could not be resolved by courts for reasons that Justice William Brennan addressed in Baker.

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Cooley v. Board of Wardens (1851) – Guest Essayist: Joerg Knipprath

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Unlike many of his decisions, Chief Justice John Marshall’s opinion in the foundational case Gibbons v. Ogden (1824), which upheld the right of Gibbons to operate a ferry between Elizabethtown, New Jersey, and New York City in competition with his former partner, Ogden, was well-received by the public. It negated a New York State monopoly grant and struck a blow in favor of restive younger entrepreneurs who hoped to prosper by providing technological innovation and expanding infrastructure as the country’s population and commerce grew.

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Charles River Bridge v. Warren Bridge (1837) – Guest Essayist: Joerg Knipprath

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In 1785, Boston’s population was around 18,000; across the Charles River, Charlestown counted 1,200. Forty years later, Boston’s population had more than tripled, to 60,000; that of Charlestown to 8,000. The need to accommodate the increased travel and commerce between Boston and points inland resulted in protracted litigation before the Supreme Court in the 1830s in the Charles River Bridge v. Warren Bridge case.

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Fletcher v. Peck (1810) – Guest Essayist: Joerg Knipprath

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At the Peace of Paris that ended the Revolutionary War, the United States (defined, as in the Declaration of Independence, as the individual states) were recognized by the British as free and independent. While the British relinquished to those United States territory from the Atlantic to the Mississippi, the several states did not thereby relinquish their own, sometimes conflicting, claims to that land. The Articles of Confederation provided procedures for the settlement of boundary disputes between states under the aegis of Congress and also anticipated that there might be disputes between grantees of land from two different states. Yet, no state was to be deprived of land for the benefit of the United States, so the Confederation Congress could not force the states to cede their western land. Still, a number of states released their claims, so that Congress gained de facto control over those lands and organized the Old Northwest under the Northwest Ordinance of 1787.

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Ex Parte McCardle (1869) – Guest Essayist: Joerg Knipprath

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Ex parte McCardle was forged in the superheated atmosphere of Southern reconstruction after the Civil War. The struggle to shape that reconstruction pitted the “Radical” Republicans (representing the pre-war abolitionist wing) against moderates within the party. Democrats, reduced to a rump faction, could do little more than get out of the way and, if palatable, delicately offer support to the Republican moderates. The political and constitutional fault line cut between the restrained Lincoln-Johnson presidential reconstruction based on maintaining the existing federalism, but with abolition of slavery, and the program of congressional radicals to treat the South as a conquered province reduced to territorial status, prostrate before Northern arms and to be cleansed of the twin stains of slavery and secession by stripping the erstwhile states of their old constitutional privileges.

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Propeller Genesee Chief v. Fitzhugh (1851) – Guest Essayist: Joerg Knipprath

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On June 19, 1846, the Rochester, New York, Democrat newspaper reported that over 4,000 people assembled to witness the launch of a new steamship (then often called a “propeller” due to the novel screw propulsion mechanism), the Genesee Chief. She was described as “faultless in her model and appointments.” At 144 feet long, with 20 state rooms, and berths for 75 cabin and 100 steerage passengers, with room for more, she was to be the start of regular steamship service between Rochester and Chicago.

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Cohens v. Virginia (1821) – Guest Essayist: Joerg Knipprath

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Over the years, the Supreme Court has addressed several constitutional topics in cases involving lotteries. Perhaps none is as significant as Chief Justice John Marshall’s opinion in Cohens v. Virginia. The case was the third major act in a decades-long contest over the nature of the Union and, more specifically, over the constitutional relationship between federal and state laws and between the federal and state judiciaries. On the last point the contest directly involved repeated clashes between the United States Supreme Court and the Virginia Court of Appeals (the state supreme court), and between two dominant jurists, Marshall and the chief judge of Virginia, Spencer Roane. Cohens v. Virginia is the climax in the story of those two rivals.

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1936, Franklin D. Roosevelt Defeats Alfred Landon: Administrative Centralization And Its Implications For Constitutionalism – Guest Essayist: Professor Joerg Knipprath

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Franklin Delano Roosevelt, running for re-election in 1936, received 60.8% of the popular vote, second-highest popular vote percentage since that method of selecting presidential electors became dominant in the 1830s. Only Lyndon Johnson’s 61.1% over Barry Goldwater in 1964, Richard Nixon’s 60.7% over George McGovern in 1972, and Warren Harding’s 60.3% over James Cox in 1920 are on a similar scale. The electoral vote was even more lopsided, as Roosevelt defeated Kansas Governor Alf Landon 523 votes to 8 (46 states to 2). Only Ronald Reagan in 1984 (525 votes to 13; 49 states to 1 plus D.C.) and Richard Nixon in 1972 (520 votes to 17; 49 states to 1 plus D.C.) enjoyed similarly impressive margins since the modern two-party system emerged.

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1912, Eugene Debs’ Socialism And The U. S. Constitution – Guest Essayist: Professor Joerg Knipprath

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Dissenting from the Supreme Court’s 1905 opinion in Lochner v. New York that found unconstitutional a maximum-hour law for bakery employees, Justice Oliver Wendell Holmes, Jr., declared, “[A] constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the State or of laissez faire.” Holmes’s point is valid at least to the extent that the Framers–most of whom adhered to the then-dominant mercantilism–did not encrypt the grand contours of a particular system of political economy in the Constitution’s provisions aligning and balancing individual liberties and governmental powers. Yet, the Constitution also protects personal rights whose exercise is more likely to be realized in a political system premised on fundamentally liberal (in the classic meaning) conceptions of the role of the government and the individual’s relationship to the State than in a system that rests on a different view of such essential matters.

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1864, Holding A Presidential Election During A Civil War – Guest Essayist: Professor Joerg Knipprath

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When asked what might derail his agenda for his new Conservative Party government, former British Prime Minister Harold MacMillan is said to have responded, “Events, dear boy. Events.” That aptly describes how the political fortunes of war-time Presidents play out. It is surprisingly difficult for incumbent commanders-in-chief to win even if military campaigns are successful. True, Franklin Roosevelt won in 1944. But, even as the Allies were defeating the Axis powers, the popular Roosevelt won with the lowest percentage margin of victory of his campaigns. When elections occurred while the war effort appeared to be flagging, incumbents have fared badly. In 1952, as a result of the Korean War stalemate, President Harry Truman could not even win re-nomination by his own party, and the Democrats lost decisively. In a similar vein, in 1968, President Lyndon Johnson declined to pursue the Democratic Party nomination for re-election after the newscaster Walter Cronkite and other elements of the media turned the disastrous and strategic military defeat of the Viet Cong during the Tet offensive into a prevailing popular tale of American defeat.

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1860, John C. Breckinridge’s Understanding Of The Constitution – Guest Essayist: Professor Joerg Knipprath

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Election of 1860

John C. Breckinridge of Kentucky entered the year 1860 as Vice President, having been elected to that office in 1856 as a Democrat from the Stephen Douglas wing of the party. Taking the oath of office when barely 36 years old, one year above the constitutional minimum, he remains the youngest man elected to that office. When the Whig party collapsed because its intrinsic identity as a national party was ground up between the sectional millstones over slavery, the Republican Party emerged as, initially, a staunch anti-slavery movement. Buoyed by its success in the 1858 congressional elections, the party expanded its political agenda. It strongly supported the Union, and moderated, but did not abandon, its official opposition on slavery. By 1860, it was the party of the North, which former Northern Whigs joined enthusiastically.

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1856, The Rise Of The Republican Party – Guest Essayist: Professor Joerg Knipprath

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The 1850s was, for the American political party system, a decade of “creative destruction,” to borrow a concept from the Austrian economist Joseph Schumpeter. This process of collapse and rebirth, sometimes referred to as a political “realignment,” was triggered by the internal contradictions of a constitutional order resting simultaneously on the animating principle of liberty and the continued protection of slavery. The catalyst was the 1854 Kansas-Nebraska Act, the Lewis Cass-Henry Clay-Stephen Douglas “popular sovereignty” approach to slavery in the territories, and the resultant spectacle of “Bleeding Kansas” as the preface to the Civil War.

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1848, Zachary Taylor Defeats Martin Van Buren, Lewis Cass: Popular Sovereignty In The Territories, Cass’s Issue That Would Affect U. S. Constitutional Politics For The Next Decade – Guest Essayist: Professor Joerg Knipprath

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The Missouri Compromise of 1820, it has been said often, delayed the Civil War for a generation. The act could not, however, eliminate the reality of slavery and the inherent contradiction of such an institution existing in a society founded on the idea of freedom. The Compromise had loaded the dice in favor of at least a gradual erosion of the slave states’ power, thereby also virtually guaranteeing a serious clash, if those states eventually found themselves in an existential political trap.

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1832, Andrew Jackson Defeats Henry Clay, William Wirt: Re-Chartering Of The Bank Of The U.S. – Guest Essayist: Professor Joerg Knipprath

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“The Bank, Mr. Van Buren, is trying to kill me, but I shall kill it,” President Andrew Jackson ominously declared on July 4, 1832, to his political confidante and future vice-president, Martin Van Buren, during the apex of his struggle with the Second Bank of the United States.

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1816, James Monroe Defeats Rufus King: The Hartford Convention – Guest Essayist: Professor Joerg Knipprath

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Rufus King: delegate from Massachusetts to both the Confederation Congress and the Constitutional Convention in Philadelphia (where, he was one of five members of the influential Committee of Style), long-time U.S. Senator from New York, unsuccessful candidate for governor of New York, two-time American ambassador to Great Britain (where his first successor was James Monroe), and three times unsuccessful Federalist Party candidate for high executive office in the general government—twice for vice-president and once for president. It was this patriot’s lot to lead the disgraced and disintegrating rump of the Federalist Party in its last national campaign.

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1800, Electoral College Tie Between Jefferson And Burr, Throwing An Election Into The House Of Representatives For The First Time – Guest Essayist: Professor Joerg Knipprath

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Today, having the House of Representatives elect the president seems strange, almost freakish. But to the Framers, the participation of the House in this process was expected to be common-place. The problem arises out of the practical need for at least a two-step procedure. There first must be a mechanism to nominate a number of candidates for the office and, second, a process to select the winner from those nominees.

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1796, John Adams Defeats Thomas Jefferson: Surviving America’s First Election Between Competing Political Parties – Guest Essayist: Professor Joerg Knipprath

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Six months before his retirement from the presidency, George Washington gave a farewell address to the nation. Among several memorable passages is his warning about the evils of the spirit of party, particularly as it manifests itself in republican forms of government. “This spirit, unfortunately, is inseparable from our nature having its roots in the strongest passions of the human mind. It exists under different shapes in all governments…; but in those of the popular form, it is seen in its greatest rankness, and is truly their worst enemy.” Read more

1792, George Washington Sets The Tone For America As Its First Elected President – Guest Essayist: Professor Joerg Knipprath

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In early 1790, in just the second year of the general government under the new constitution, Treasury Secretary Alexander Hamilton delivered on the charge made to him by the first Congress in 1789 to prepare a plan for the “adequate support of public credit.” This First Report on the Public Credit proposed to pay off the foreign and domestic debt at par through new U.S. bonds, which, in turn, were to be paid off through import duties and excise taxes, such as those on whiskey. To help tie disparate creditors of the states to the national program, the general government also would assume the Revolutionary War debts of the states. Later that year, he submitted the related Report on the Bank of the United States. This analogue to the Bank of England, but owned principally by private investors and with branches set up in various states, was to provide the core of a nascent banking system necessary for the country’s commercial development.

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Executive Overreach And Its Effect On The Constitution’s Structural Safeguards Of Liberty – Guest Essayist: Professor Joerg Knipprath

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A t-shirt I saw recently embodies the ultimate justification for parental authority, “I’m the Dad, That’s Why.” Of course, substituting “Mom” works, as well. President Obama’s claims of executive authority to act when Congress fails to enact his vision about immigration matters, Obamacare, or the environment, similarly appears to be, “I’m the President, that’s why.” As a t-shirt slogan, it works; as constitutional doctrine, not so much.

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The Constitutional Tools Of Foreign Relations – Guest Essayist: Professor Joerg Knipprath

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When Barack Obama was elected in 2008, much was made in the press of the perception that this event reflected voters’ fatigue with foreign entanglements and a turning inward to domestic issues. While there is truth to that, events are not controlled by voters’ sentiments and have a way of upsetting comfortable delusions. It might be said, with apology to Leon Trotsky, “You may not be interested in international conflict, but international conflict is interested in you.” Thus, by 2012, Russia rising, Iraq fracturing, Syria boiling, China blustering once again placed foreign relations on the political radar. Still, Mitt Romney’s warnings about, for example, Russia as the preeminent geopolitical threat, fell on insufficient numbers of listening voters’ ears, and Barack Obama was re-elected.

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Presidential Power And The “Nuclear Deal” With Iran – Guest Essayist: Joerg Knipprath

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One of the most controversial recent presidential actions is the Obama administration’s desire to enter a “nuclear deal” with Iran. To prod Iran into an agreement that he appears desperately to want, President Obama intends to waive sanctions imposed under earlier legislation and executive action. As shown by an open letter to the Iranian government authored by Senator Tom Cotton and signed by 47 Republican senators, a hotly-debated aspect of the deal is which role, if any, Congress would play in this spectacle.

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Could a President Take Over The Coal Industry? It Happened With The Steel Industry And Congress Did Nothing – Guest Essayist: Professor Joerg Knipprath

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As introduced in the previous post, the 1952 Steel Seizure Case is a cornerstone of the Court’s separation of powers jurisprudence. The case arose out of President Harry Truman’s decision to seize the steel mills to prevent a labor strike that, he claimed, threatened steel production for the war effort in Korea. The Court was presented with the difficult problem of resolving, in a legal setting, the essentially political wrangling between Congress and the President, with the latter pressing his constitutional power claims to the maximum. At another level, the case exposed the fault lines between the American view of the Constitution as both the source and the basic formal law of government, and the classical view of constitutions as mere reflections of formal and informal political accommodations already made otherwise. Read more

This Week, 63 Years Ago-April 8, 1952: Truman Seizes Control of the Steel Industry by Executive Order-What Did the Supreme Court Decide & Why? Part I – Guest Essayist: Professor Joerg Knipprath

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Separation Of Powers Case: Youngstown Sheet & Tube Co. v. Sawyer (Part 1)

When the Supreme Court addresses constitutional aspects of executive “overreach,” it often does so in the context of a clash between the President relying on a broad reading of his constitutional powers and the Congress attempting to limit those powers through the use of its own. The controversy that raises the issue is usually said to involve the Court in the delicate, but vital, role of “policing the boundaries established by the Constitution.” To decide just where the boundaries relating to the separation of powers lie, the Court typically looks to the framework established in the foundational case, Youngstown Sheet & Tube Co. v. Sawyer (1952). Read more

Friday, June 7, 2013 – Essay #80 – Progressive Democracy by Herbert Croly – Guest Essayist: Professor Joerg Knipprath, Professor of Law at Southwestern Law School

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Herbert Croly was perhaps the most important intellectual of Progressivism, which seems odd, given the tortuous language and convoluted emotive passages that characterize his work. Progressive Democracy was not Croly’s most significant book. That was his earlier work, The Promise of American Life, a book that supposedly so influenced Theodore Roosevelt it is said to have provided the catalyst for Roosevelt’s return to politics as a third-party “Bull Moose” presidential candidate in the 1912 election.

Progressive Democracy is of the same style and substance as Croly’s other writings. It rests on the usual Progressive premises, such as the omnipotent, all-caring, and morally perfect Hegelian God-state that is the inevitable evolutionary end of Progressive politics. It reflects the notion—so common in Progressive and other leftist theory—of stages of human social and political development that have been left behind and whose outdated institutions are an impediment to ultimate progress into the promised land. Hence, Croly’s insistence that the Constitution’s structure of representative government and separation and division of powers needed to be, and would be, changed. Read more

Monday, June 3, 2013 – Essay #76 – The President of the United States by Woodrow Wilson – Guest Essayist: Professor Joerg Knipprath, Professor of Law at Southwestern Law School

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Thomas Woodrow Wilson was dour, humorless, and convinced of the fallen nature of all but the elect few and of the need for strong leaders with proper principles who would provide the discipline and vision for the moral guidance of the weak at home and abroad. Calvinist in appearance, outlook, and family background, he perfectly matched the caricature of a Puritan. Those traits also made him a perfect Progressive.

Wilson was strongly influenced by 19th century German intellectual thought, especially Hegel’s views of the State as the evolutionary path of an Idea through history, and by contemporary adaptations of Darwinian theories to social science. He enthusiastically embraced the nascent ideology of the State. Read more

Monday, May 20, 2013 – Essay #66 -Farewell Address to the Senate by Jefferson Davis – Guest Essayist: Professor Joerg Knipprath, Professor of Law at Southwestern Law School

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In 1830, at a dinner on the anniversary of Jefferson’s birthday, an exchange of toasts occurred between President Andrew Jackson and Vice-President John Calhoun. Jackson’s challenge, “Our Federal Union—it must be preserved!” was returned with another from Calhoun, “The Union—next to our liberty, the most dear.” The rhetorical volleys crystallized the fundamentally different views of the combatants during the later secession crisis, not only on the nature of the Union, but on the very values each thought paramount. Read more

Wednesday, May 15, 2013 – Essay #63 – Reply in the Senate to Stephen Douglas by Jefferson Davis – Guest Essayist: Professor Joerg Knipprath, Professor of Law at Southwestern Law School

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American politics in the 1850s were dominated by the polarization over slavery, which was reflected in the increasingly menacing tone of the national political “conversation” and the retreat into starker sectionalism of political allegiances. Attempts at political compromise over this national sickness initially appeared promising, but ultimately provided only bandages, not cures. When politics failed, the doctors of the law on the Supreme Court stepped in with a massive dose of controversial and untried constitutional medicine in the Dred Scott decision. When that, too, failed, the only means left to stop the spread of the poison was through the extreme surgery of military conflict that cost the blood of over 600,000 Americans. The South wanted amputation of what it saw as the source of the poison—the North’s crusade of political domination. The North rejected amputation and wanted to save the whole patient through radical surgery to cut out the evil—Southern slavery. Read more

Monday, May 6, 2013 – Essay #56 – Speech on the Dred Scott Decision by Abraham Lincoln – Guest Essayist: Professor Joerg Knipprath, Professor of Law at Southwestern Law School

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Abraham Lincoln’s speech on the Dred Scott Case reveals the complex nature of his views on slavery and racial equality, complexity that reflected the divided national psyche. Many Americans in the broad middle rejected the Southern defense of slavery and believed that the “peculiar institution” violated basic human rights and the fundamental equality of life, liberty, and the pursuit of happiness promised to all in the Declaration of Independence. Read more

Friday, March 8, 2013 – Essay #15 – The Farmer Refuted by Alexander Hamilton – Guest Essayist: Professor Joerg Knipprath, Professor of Law at Southwestern Law School

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With the certitude of wisdom and the patronizing tone one might recall from one’s own youth, the precocious young Alexander Hamilton offers to teach the Loyalist Samuel Seabury the true meaning of the rights of man. The pointed words used and Hamilton’s sarcastic references to the “Farmer’s” ignorance of the God-given nature of those rights are put in even greater relief when one is reminded that Seabury was one of a long line of bishops, rectors, and professors in the American Episcopal Church and extremely influential in the development of the American church’s doctrine after the Revolution. “If you will follow my advice, there still may be hopes of your reformation,” takes on more layers of meaning, when addressed to a Protestant Read more

Wednesday, March 6, 2013 – Essay #13 – A Summary View of the Rights of British America by Thomas Jefferson – Guest Essayist: Professor Joerg Knipprath, Professor of Law at Southwestern Law School

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On July 4, 1776, the Continental Congress, after months of preparation and weeks of political wrangling, announced that it had adopted an independence declaration. That document was written by Thomas Jefferson and substantially revised (“mangled,” according to Jefferson) by the Congress. Due to his other obligations, Jefferson had little time to spend on this task. Fortunately, he had composed his Summary View of the Rights of British America just two years earlier, from which he could draw much of the substance of the new document.

The Summary View resonates quite differently from the petitions, remonstrances, and declarations of a decade earlier. Read more

Tuesday, March 5, 2013 – Essay #12 – Rights of the British Colonies Asserted and Proved by James Otis – Guest Essayist: Professor Joerg Knipprath, Professor of Law at Southwestern Law School

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Rights of the British Colonies Asserted and Proved-James Otis

The Declaration of Rights of the Stamp Act Congress of 1765 set forth the fundamental principle that no taxes could be imposed on them, “but with their own consent, given personally, or by their representatives.” This principle was reduced to the aphorism “taxation without representation is tyranny” and, eventually, “no taxation without representation.” One cannot assign this idea to any individual or movement, as it reflects a long historical struggle between King and Parliament that culminated in the Glorious Revolution and the English Bill of Rights of 1689. Read more

Wednesday, February 27, 2013 – Essay #8 – Discourses Concerning Government by Algernon Sidney – Guest Essayist: Professor Joerg Knipprath, Professor of Law at Southwestern Law School

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Algernon Sidney, the author of the Discourses, was a man of the 17th century’s Age of Reason. He was skeptical of organized religion though not by that measure doubting of God. He was firmly convinced of the inherent rationality of the human will and the essential equality of all humans as children of God, from which he deduced the ultimate sovereignty of individuals and the basis of the ethical state in the consent of the governed. That made him a foundational figure in the emerging English Whig republicanism, but one about whom history has given a divided verdict.

He was executed in 1683 for plotting to instigate rebellion against Charles II. Many historians believe that the evidence for that particular charge was procured. It is clear, however, that for many years he was supported in his machinations and plotting against the English government by generous support from the French king, Louis XIV. Read more

June 4, 2012 – Essay #76 – Amendment XXIV, Section 2 – Guest Essayist: Joerg Knipprath, Professor of Law at Southwestern Law School

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http://vimeo.com/43382879

Amendment XXIV:

1:  The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any state by reason of failure to pay any poll tax or other tax.

2:  The Congress shall have power to enforce this article by appropriate legislation.

A poll tax is an ancient device to collect money. It is a tax on persons rather than property or activity. As a regressive tax from the standpoint of wealth, it is often unpopular if the amount at issue is steep. But it can also be unpopular for other reasons.

In the United States, such a capitation tax was assessed in many states on the privilege of voting. Amounts and methods varied. One of the last poll taxes of this type, that of Virginia, was just $1.50 per person at the time it was struck down by the Supreme Court in 1966. That is not more than $10.00 in current money, hardly an exorbitant price, except for the truly destitute. But the problem was more than the amount. It was the manner of administration.

The common practice was to require that the tax be paid at each election, and that a potential voter demonstrate that he had paid the tax for a specified number of previous elections. If not, those arrearages had to be paid to register to vote in the ongoing election. The effect of the tax was to hit many lower income groups, but primarily Southern blacks, whose participation in elections dropped to less than 5% during the first part of the 20th century. To be sure, that low rate of participation was not entirely due to the poll tax, but that tax was a particular manifestation of a regime of suppression of political participation by blacks.

The 15th Amendment had been adopted to prohibit overt racial discrimination in qualifying to vote. However, the poll tax and other restrictive measures, such as literacy tests, were not, strictly speaking, race-based, so they did not come within the 15th Amendment. A different solution was needed, according to those who saw the poll tax as intolerable. Literacy tests, if fairly administered (though often they were not), had a clear connection to the responsible exercise of the voting franchise that poll taxes lacked. After all, especially in those years before the electronic media, having a literate electorate was a significant community interest. Republican theory has traditionally looked to having those with the most interest and highest stake take the leading role in the community. Literacy provided a foundation to acquire the knowledge needed for a wise and effective participation in res publica. Poll taxes, on the other hand, are just revenue-raising devices, and, since they are applied equally per capita, they are removed from republican considerations of having those with the highest economic stake in society direct the political affairs of that society.

Opposition to the poll tax increased during the 1930s and President Roosevelt briefly attacked it in 1938. But FDR had to be mindful of the powerful influence of Southern Democratic barons in the Senate and the crucial role that the Southern states played in the politically dominant Democratic coalition. By the 1940s, the House of Representatives passed legislation to outlaw poll taxes but a Southern-led filibuster in the Senate killed the effort. By 1944, the Republican Party platform and President Roosevelt (though not his party’s platform) called for the tax’s abolition.

Eventually, qualms arose about using ordinary legislation to block the tax. Article I of the Constitution places principal control over voter qualification in the hands of the states. The 15th Amendment (race) and the 19th Amendment (sex) had limited the states’ discretion. To many—even opponents of the poll tax—the message from those amendments was that limitations on state power had to proceed through specific constitutional amendment. The opinions issued by the Supreme Court seemed to echo those sentiments, as the Court had accepted the predominant role of the states in that area even when it struck down the racially-discriminatory “white primaries” in the South in the 1940s and 1950s. The debate allowed Southern supporters of the poll tax to characterize the controversy as a states’ rights issue.

The effort to adopt a constitutional amendment to ban poll taxes dragged on through the 1950s into the 1960s, even as support for the tax grew weaker. Literacy tests remained widespread, even in the North. But Southern states, too, abandoned poll taxes until, in 1960, only 5 states retained them. Finally, in March, 1962, the Senate approved what would become the 24th Amendment. This time, no Southern filibuster occurred. In August of that year, the House concurred. The concerns over state sovereignty remained, in that the amendment proposed to abolish poll taxes only in federal elections, leaving states and municipalities free to continue the practice for their internal affairs.

When the amendment was sent out to the states, every state of the old Confederacy, but two, refused to participate, still portraying the matter as a states’ rights issue. The two exceptions were Mississippi, which formally rejected the amendment, and Tennessee, which approved it. Outside the South, every state adopted the amendment between November, 1962, and March, 1964, except Arizona and Wyoming.

But, as mentioned, states were still free to adopt poll taxes for local elections. This apparently was a call to action for the Supreme Court. Casting constitutional caution to the wind, the Court in Harper v. Virginia Board of Elections in 1966 struck down the Virginia poll tax for state and local elections. Creating an odd alloy of different constitutional concepts, due process and equal protection, Justice William Douglas announced for the majority that poll taxes impermissibly discriminated on the basis of wealth and/or improperly burdened a fundamental right to vote. In any event, the opinion announced, the Virginia tax violated the 14th Amendment.

The Court obviously was aware of the 24th Amendment, so recently adopted. But the learned justices must have found the effort to amend the Constitution through the proper Article V process unsatisfying. It appears that the 24th Amendment, having been limited to federal elections to avoid further intrusion into state sovereignty over voting qualifications, was not constitutionally rigorous enough. The Constitution, as it thus stood, was unconstitutional in the eyes of the Supreme Solomons. If the Court was right in Harper, members of Congress and of the state legislatures could have saved themselves much trouble and just used the 14th Amendment to declare all poll taxes unconstitutional. Congress could have accomplished the goals of the 24th Amendment, and more, just by passing a law to enforce these supposed rights protected under the 14th Amendment.

Of course, traditionally the 14th Amendment was not understood to provide direct restrictions on state control of voting qualifications. Otherwise, the 15th Amendment, as it applies to states, would have been unnecessary. The Court had used the 15th Amendment to strike down certain voting restrictions on race earlier in the 20th century, and did not even begin to take gingerly steps towards the 14th Amendment until striking down the “white primaries.”

Not much significance, other than as a symbol and a constitutional curiosity remains of Harper. The Court since then has repudiated the notion of wealth as a constitutionally “suspect” classification entitled to strict judicial scrutiny under the equal protection clause. As well, the notion of voting as a fundamental right protected under the due process clause, has had a checkered history.

Rights conceptually are “fundamental” if they do not depend on a political system for their existence; they are “pre-political” in the sense of the Anglo-American social contract construct that the Framers accepted. Freedom of speech and the right to carry arms for self-defense come to mind. Voting is an inherently political concept that does not exist outside a political commonwealth, and the scope of the voting privilege (that is the meaning of “franchise”) is, necessarily, a political accommodation. Even republics, never mind monarchies, have no uniform understanding of who may be qualified to vote. The great historical variety of arrangements of republican forms of government, and the inherently political nature of defining them, is one reason the Supreme Court has not officially involved itself in defining what is a republican form of government guaranteed under the Constitution.

A final word about the 24th Amendment: Historically, many republics, including the states in our system, required voters to meet designated property qualifications, as a reflection of having a sufficient stake in the community to vote responsibly (and to pay for the cost of government). Strictly speaking, the 24th Amendment does not forbid those. The Supreme Court has upheld property qualifications for voting for special governmental units, such as water districts. One wonders, whether the abolition of such qualifications, if they were required in all elections, would need a constitutional amendment today, or whether the Supreme Court would just wave the magic wand of the 14th Amendment, as it did in Harper.

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/.

May 9, 2012 – Essay #58 – Amendment XV, Section Two – Guest Essayist: Professor Joerg Knipprath, Professor of Law at Southwestern Law School

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Amendment XV:

Section 1: The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

Section 2: The Congress shall have power to enforce this article by appropriate legislation.

As do its older companions among the three Reconstruction Amendments, the Fifteenth Amendment authorizes Congress to make laws to enforce its provisions. Congress acted almost immediately after the amendment’s adoption to protect the voting rights of black citizens through the Enforcement Act of 1870. Just six years later, however, the Supreme Court blunted that statute’s use as a practical tool to prevent Southern interference with the voting rights of blacks.

For the next eighty years, the focus of 15th Amendment law shifted to the Supreme Court as it struck down various ingenious ways, such as “grandfather clauses” and literacy tests, that states developed to continue the disenfranchisement of blacks. Not until 1957 did Congress involve itself again. Finally, in 1965, Congress used Section 2 to pass the Voting Rights Act of 1965. That statute is the most significant law passed under this section, and its constitutionality was quickly upheld in two major Supreme Court rulings in 1966.

The statute prohibits the use of any procedure or test that has the purpose or effect of abridging a citizen’s right to vote on account of race. Moreover, it requires that certain states and other political units that seek to change voting procedures must obtain pre-clearance from the Justice Department. These mechanisms, direct prohibition and pre-clearance from federal authorities, are key features of this potentially far-reaching statute. The latter requirement especially is controversial. Justice Hugo Black noted, a “federal law which assumes the power to compel the States to submit in advance any proposed legislation they have for approval by federal agents” threatens the system of structural federalism because it “approaches dangerously near to wiping the States out as useful and effective units in the government of our country.”

Section 2 is a remedial provision, similar to Section 2 of the 13th Amendment and Section 5 of the 14th Amendment. As to the last of these, the Supreme Court has held that any Congressional act must solely remedy violations by the states of the 14th Amendment and must not simply create new statutory rights to sue. Congress must show that the action by the states that the law prohibits is a violation of the 14th Amendment, as determined by Supreme Court precedent. Once such a violation is established, the law must seek to remedy that violation. The characteristics of a remedy are that it targets only the wrongdoers and the offending behavior, and is in place only as long as is needed to cure the problem. Under the 14th Amendment, that test would be met if the law targeted governmental bodies or government officials for sanction, was limited to states that engaged in the unconstitutional conduct, and applied only as long as the violation continued. The Court has coined a fancy and sonorous phrase for this requirement, calling it one of “congruence and proportionality.”

While the Court has not formally adopted the same test for Section 2 of the 15th Amendment, language from the lower courts and from the Supreme Court in the 2009 decision in Northwest Austin Municipal Utility District v. Holder suggests that this is the likely test that will be applied to laws under this section. The provisions of the Voting Rights Act originally met this test. The most controversial section of the Act, the pre-clearance provision, only applies to states or other political units, and only to those that engaged in violations of the 15th Amendment and abridged the right to vote of various racial or ethnic groups (usually blacks or citizens of Mexican ancestry). The statute was in effect only for five years and allowed a “bail-out” if a political subdivision could show that the reason it was covered by the statute (determined through a voting participation formula) was not due to any unlawful discriminatory practice.

Since then, however, the Act’s constitutionality has become more problematic. It has been re-adopted four times, the latest extension, in 2007, for 25 years. Entire states, such as Texas, continue to be subject to its restrictions. Bail-outs were rare, if they occurred at all, before 1982. Between 1982 and 2009, only 17 political units (e.g. towns or cities) out of 12,000 that are covered by the law successfully bailed out. The Justice Department consistently opposed and blocked bail-out suits.

Conditions in the states have changed since 1965. Indeed, the evils of unbalanced voting rates between whites and others are greater today in some states that are not subject to the Act’s coverage formula. All changes in election law are covered by the statute and must be shown not to have a racially discriminatory effect on voting and must receive Justice Department approval. As one frustrated Georgia Congressman tartly remarked, “If you move a polling place from the Baptist church to the Methodist church, you’ve got to go through the Justice Department.”

This was precisely the problem faced by a small water district in Texas that wanted to move the voting place for election of its board from a private house to a public school. The district was formed in 1987 and never engaged in voting discrimination in violation of the 15th Amendment. But, since Texas was covered by the Act, the district was covered, and the Justice Department opposed the district’s suit to bail out of coverage.

The Supreme Court heard the Northwest Austin case in 2009. While the justices did not reach the constitutionality of the Act, the oral argument and the opinion served strong notice that the Court was skeptical that current social and political conditions warranted a “remedy” based on a formula reflecting nearly 50-year-old evidence. At argument, Chief Justice Roberts and Justice Alito wondered why the Act had not been extended to other states where there were greater voting disparities between whites and racial and ethnic minorities than in the covered states. Such unequal treatment goes against the basic constitutional presumption of equality among the states and can only be avoided in unusual cases. The opinion noted the “federalism cost” of interference with the fundamental political decisions of states, the same concern that Justice Black had raised 40 years earlier.

Since Northwest Austin, several additional political subdivisions have been able to extricate themselves from the Act’s preclearance requirement, including the first outside the state of Virginia. Local politicians, the Justice Department, and the lower courts may have received the Court’s signal and are facilitating bail-outs as a way to avoid having the Court declare the Act unconstitutional.

The Act is an object lesson of how a problem begets a law that remains long after the events that gave rise to it are past. The Act was to be “temporary,” but such measures rarely are. It is in truth a remedy without an ill and becomes thereby part of a political spoils system.

Constituencies develop whose economic livelihood or political influence depends on the continued existence of the law and the perpetuation of the appearance of need for it. Those constituencies include the bureaucrats and lawyers in the Justice Department, but also the politicians—federal, state, and local—who can use their support for the Act as evidence of political virtue to further their own power. The political system may be unable to reform itself under such circumstances, and it remains for the courts to declare that the emperor lacks clothes.

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.org/.

 

Monday, April 30, 2012 – Essay #51 – Amendment XIV, Section 1: Equal Protection Under the Law – Guest Essayist: Professor Joerg Knipprath, Professor of Law at Southwestern Law School

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http://vimeo.com/41276250

Amendment XIV, Section 1:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws

Supreme Court Justice Oliver Wendell Holmes once dismissively declared the equal protection clause to be the “usual last resort of constitutional arguments.” At the time, 1927 in the notorious case of Buck v. Bell, Holmes could not have foreseen the explosion in the use of the equal protection clause that would occur a generation later.

The Declaration of Independence had famously asserted the proposition, self-evident to the Founders, that “all Men are created equal.” But this was a metaphysical proposition in that there was to be no aristocracy by birthright, a moral one in that we are all (with allowance for the truly insane) equally imbued with free will, and a religious one in that we are all children of God. The Founders were hardly so naïve to believe that all people are physically, intellectually, and emotionally equal, never mind that they are alike. Aristotle had written in the Politics, “Democracy arises out of the notion that those who are equal in any respect are equal in all respects; because men are equally free, they claim to be absolutely equal.” Aristotle viewed this as a fatal flaw of democracy, a theme echoed in Madison’s Federalist 10. In a trenchant dissection of the instability of democracies, Madison sarcastically observed, “Theoretic politicians, who have patronized this species of government, have erroneously supposed that, by reducing mankind to a perfect equality in their political rights, they would, at the same time, be perfectly equalized and assimilated in their possessions, their opinions, and their passions.”

Moreover, the very real presence of slavery in the great majority of the states demonstrated the limitations of the concrete application of the Declaration’s sentiments. While Thomas Jefferson, agonizing over the institution of slavery from which he personally benefitted, might write, “I tremble for my country when I reflect that God is just,” it was also the case, as the historian Forrest McDonald observed, “Few of his countrymen trembled with him.”

In practice, then, both simple human differences as well as more profound human inequalities have to be taken into account in a successful social order. Regarding the former, the law routinely discriminates by drawing lines that target some in the community for unfavorable treatment. The tax code, for example, is a mass of discriminations. As to the latter, attempts to equalize conditions that arise from the human inequalities about which Madison wrote is a prescription for totalitarian government. That is the dark side of egalitarianism and exposes the tension between equality and liberty.

Moving from a manifesto for independence to a plan for governing the Union, the Framers did not imbed either a general principle of non-discrimination or one of equality of condition in the Constitution. There are only specific limited instantiations of non-discrimination, such as the protection offered under the privileges and immunities clause of Article IV to persons coming into a state from another and under the commerce clause to out-of-staters competing with local businesses.

There is, however, no equal protection clause. That had to await the adoption of the 14th Amendment. However, as was the case with the 13th and 15th Amendments, that provision had to do solely with race discrimination and, more directly, the conditions that resulted from institutionalized slavery based on the black man’s race. The 14th Amendment was the immediate product of concern over the constitutionality of the Civil Rights Act of 1866, a law passed under the 13th Amendment. That statute was an anti-discrimination law. Since it prohibited race discrimination in various matters and did not limit itself to slavery as such or apply only in former slave states, there were doubts about the ability of the 13th Amendment to support this law. To cure that defect, a movement for another constitutional amendment, the eventual 14th, arose in Congress under the auspices of the Joint Committee on Reconstruction and the leadership of Congressman John Bingham of Ohio and Senator Jacob Howard of Michigan.

The equal protection clause was only intended to insure formal equality before the law and only regarding race discrimination. That its reach did not extend further was made clear by the Supreme Court in 1872 in the Slaughterhouse Cases, in which a claim by butchers that a Louisiana law violated, among others, their right to equal protection under the 14th Amendment was rejected almost summarily. As Justice Samuel Miller declared, “We doubt very much whether any action of a State not directed by way of discrimination against the negroes as a class, or on account of their race, will ever be held to come within the purview of this provision.” In a companion case decided on the same day, Bradwell v. Illinois, a claim by a woman that the state’s refusal to allow women to practice law violated the 14th Amendment did not even produce an argument by her attorneys or a discussion by the Court of a violation of the equal protection clause. The singularly race-focused nature of the equal protection clause was reiterated by the Court of that era in the Civil Rights Cases and Plessy v. Ferguson.

Leaving aside a few odd cases involving unenumerated fundamental rights, it was not until the 1950s that the Supreme Court began to consider non-race-related equal protection claims, and it was not until Reed v. Reed in 1971 that a claim of unconstitutional sex discrimination was successful. In the last several decades, the Court has used the equal protection clause to strike down state laws that discriminate against various classes of aliens, illegitimate children, and homosexuals. Race, ethnicity, religion, national origin and (many) alienage classifications are considered constitutionally “suspect,” meaning that they are presumptively unconstitutional and subject to “strict judicial scrutiny.” Sex and illegitimacy are “quasi-suspect” classifications subject to “intermediate” scrutiny. In either case, the government must show greater need for such discrimination than would be required for ordinary discriminations by government, such as age, wealth, disability, or other classifications. This means effectively that racial and other such differences must not be formally recognized in laws.

The expansion of non-discrimination protection has made obsolete Justice Holmes’ comment about the futility of equal protection clause claims. The Constitution now protects more broadly against discrimination by government than was the case in the 1920s, and certainly than in the 1790s. Still, there is generally no obligation by government to eliminate inequalities that result from human nature and capabilities or from what might be called expansively the human condition. President Obama, speaking years ago at an academic gathering, bemoaned the Supreme Court’s failure to use the equal protection clause to equalize economic and social conditions of inequality, but the Court has generally avoided such judicial legislation. The only exceptions have been in matters related to access to courts, such as the right of an indigent defendant to a paid attorney.

Beyond those few cases, the justices have declined numerous invitations to turn the Constitution from one of rights against the community (a “negative” constitution) to one of rights from the community (a “positive” constitution). Human experience shows that the latter always becomes one of obligations to the community, as government grows and individual liberty shrinks. Certain justices would be happy to move in the direction of the European model to enact their ideal egalitarian world. Justice Ruth Ginsburg’s admonition to the Egyptians that they follow the South African constitution rather than the American in establishing their new system comes to mind. But the increasingly precarious economic status of the welfare state shows the wisdom of the Court in not amending the Constitution to remake the equal protection clause into a constitutional forge of egalitarianism.

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/.

April 25, 2012 – Essay #48 – Amendment XIV, Section 1 – Citizenship Defined – Guest Essayist: Professor Joerg Knipprath, Professor of Law at Southwestern Law School

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Amendment XIV, Section 1:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The citizenship clause of the 14th Amendment is one of four amendments to the Constitution that were intended to overturn or clarify Supreme Court rulings (the 11th, 16th, and 26th were the others). Prior to 1857, there had been much scholarly discussion and political debate, but no resolution or consensus, whether the basis of American citizenship was dependent or independent of state citizenship. Many supported the view expressed by South Carolina’s John C. Calhoun in his famous Senate speech on the Force Bill in 1833, “[Every] citizen is a citizen of some State or Territory, and as such, under an express provision of the Constitution, is entitled to all privileges and immunities of citizens in the several States; and it is in this and no other sense that we are citizens of the United States.” On the other hand, James Madison, discussing the need for Congress to provide uniformity in naturalization in Federalist 42, appears to assume that American citizenship cannot be left to the vagaries of state definitions.

The Supreme Court thoroughly examined the issue in the Dred Scott case in 1857. Chief Justice Roger Taney’s majority opinion addressed the interplay between state citizenship and American citizenship. He reasoned that “people of the United States” in the preamble and “citizens” in other parts were synonymous. The people of the United States were composed of the people of the States, as it was they who were the parties to the Constitution in light of the adoption process by state conventions. The “people” of those states were the “free” inhabitants. This was a concept of specific meaning, referring to whites only, not people brought to the colonies as slaves or their descendants, even if thereafter they had been freed. Accordingly, only those descended from white inhabitants and those people naturalized under federal law (since the first statute in 1790, only whites) could be American citizens. This fundamental principle overrode later decisions by individual states to recognize additional classes of state citizens. Scott had no basis claiming citizenship as that term was used in the Constitution. Therefore, he had no power to sue in federal court as a “citizen” of Missouri.

Taney’s argument had a weak link in that there were freed blacks, some of whom could vote in 5 of the 13 states at the adoption of the Constitution. Moreover, the privileges and immunities clause of the Articles of Confederation (the pre-cursor to its counterpart in the Constitution of 1787) had discussed the body of the states’ citizens in terms of their “free inhabitants.” An amendment proposed by South Carolina to insert “white” after “free” was overwhelmingly rejected in 1778. If that was correct, slaves could not claim citizenship, but free blacks could. Just in case, Taney cut off that argument by stating that Scott’s residence with his master in Wisconsin territory could not transmute his status from slave to free.

The main dissenting opinion, by Justice Benjamin Curtis, exploited that weakness, insisting that the Constitution established an understanding of American citizenship that plausibly could extend to all free persons born in the United States. Curtis agreed, however, that the states determined the basic parameters of citizenship, and that American citizenship was derived from the scope of citizenship recognized by the state of birth. The laws of Scott’s state of birth, Virginia, treated him as a slave; therefore he was not at that time a citizen of the United States. Nor would a slave who was temporarily taken into a free state thereby be made free. But when his master took him to reside in a free territory, Wisconsin, that action made Scott a free man and a citizen of the United States. When taken back to live in Missouri, he returned as a free man and became a citizen of that state.

Curtis accepted a unitary basis of citizenship for those born in the United States, one that was determined basically by state law. Taney, on the other hand, accepted a duality: United States citizenship was established by the understanding of the Framers of what made someone part of the “people of the United States.” While states could define state citizenship for themselves, they (or the Congress) could not go against this fundamental principle. Hence, even after the Civil War, freed blacks could not be citizens of the United States, short of a constitutional amendment.

Accepting Taney’s constitutional argument, Congress took that path with the 14th Amendment. United States citizenship was de-coupled from state citizenship, and the latter was made subordinate to the former. National citizenship appears based on place of birth (“jus soli”), the English common law principle going back to feudal antecedents when one’s station was connected to the soil where one was born. However, the amendment also adds that the person must be “subject to the jurisdiction” of the United States. This clearly excludes those children born in the United States to foreign diplomats. Does it also exclude those who are born in the United States to parents who happen to be here temporarily or illegally?

The Supreme Court addressed that clause in 1898 in U.S. v. Wong Kim Ark. The majority ruled very broadly that anyone (other than the children of foreign diplomats) born on U.S. soil was a U.S. citizen. The dissent argued that the competing international law doctrine of blood relationship (“jus sanguinis”) applied, which required not only birth in the U.S. but that the child’s father did not owe allegiance to a foreign power. This was an old principle of Roman law and ancient Greek practice still used in many countries today. It would keep the native-born children at least of those who are here merely as visitors from claiming birthright citizenship.

How does this affect the current debate about “anchor babies” in connection with illegal entrants into the United States? Proponents of unrestricted citizenship argue for the broad language of Wong Kim Ark that generally has prevailed in the courts. However, there are several weaknesses. First, the issue of illegal entrants, or even of temporary visitors, was not addressed there. Mr. Wong himself had lived in the U.S. all of his life. Wong’s parents had been duly admitted as immigrants to the U.S. with a permanent domicile and were engaged in a business. They were not mere passers-through. Nor were they here illegally, a concept that was not an issue in American immigration law until the Chinese Exclusion Act of 1882, years after the Wongs arrived. It was unnecessary for the Court to give such a broad reading to the 14th Amendment, and the justices simply may not have been aware of the ramifications of their language.

Second, the law-of-the-soil tradition carried with it “indelible allegiance.” Thus, a British subject could not renounce British citizenship, which led the British navy, after American independence, to search American vessels and “impress” into British service naturalized American citizens of British ancestry. Americans have roundly rejected that principle.

Third, the debates over the 14th Amendment included remarks by Senator Jacob Howard of Michigan, the amendment’s sponsor, that seem to say that the amendment does not apply to children of any foreigners or aliens, even if those children are born in the United States.

Fourth, Congress on several occasions throughout American history has employed jus sanguinis, for example, in legislation to recognize as citizens by birth the children born abroad to American citizens. This suggests that the 14th Amendment’s jus soli principle applies, unless Congress, as part of the sovereign powers of the national government, passes a law that rests on a different principle.

Overturning a century-old precedent is difficult, but distinguishing it due to changed social circumstances unanticipated at the time is more persuasive. Still, eroding the jus soli interpretation of the citizenship clause is a longshot, but the public debate likely will intensify the pressure for some political or constitutional accommodation.

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/.

April 17, 2012 – Essay #42 – Amendment XI: Right of States to Sovereign Immunity – Guest Essayist: Joerg Knipprath, Professor of Law at Southwestern Law School

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http://vimeo.com/40522514

Amendment XI:

The Judicial power of the United States shall not be construed to extend to any suit or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

“The prince is not bound by the laws.” Thus wrote the lawyer-scribes who compiled the early-6th century compendium of Roman law known as the Code of Justinian. This aphorism defined a fundamental attribute of sovereignty. The sovereign has ultimate authority to make law. Therefore, he cannot be subject to a superior power that could adjudicate a claim that he has violated the law, since that would deny his ultimate authority.

In English constitutional theory, this principle became, “The King can do no wrong.” It was a mainstay of the early modern state and the Tudor and Stuart kings. In somewhat more circumscribed manner, it survived the Glorious Revolution of 1688 and became sufficiently tame as a political construct to be acceptable to English republicans and, through a later formulation, to their counterparts in the American states.

Few, if any, took this point literally, any more than Catholics deem the Pope literally infallible. As William Blackstone explained, the principle was simply that, “whatever may be amiss in the conduct of public affairs is not chargeable personally on the king.” In addition, the law “feels itself incapable of furnishing any adequate remedy, without infringing the dignity and destroying the sovereignty of the royal person.” For Blackstone, as for Justinian’s lawyers and for jurists before and since, the principle was driven by practicality, of not subjecting the ultimate political decision makers to suit over every injury, grave or slight, arising from making and executing public policy. Blackstone allows, however, that the king’s officials and ministers could be called to account for the wrongs that they did in erroneously carrying out public affairs to the injury of someone’s person or property.

Under American theory, constitutional sovereignty shifted from the king to the people. The “people” are incorporated into the states and the United States. In ordinary matters of public policy, practical sovereignty lies in the legislatures. Despite the unfortunate tendency of some political groups towards deification of the State, a fiction that “the people can do no wrong” sounds alien to our ears. Still, the Supreme Court has broadly recognized the principle of “sovereign immunity” as having been carried over from English common law to the states when they declared independence in 1776. Moreover, the Court has underscored the universal nature of sovereign immunity by endorsing it for the United States, as well. One justification the Court has given sounds positively Blackstonian, namely, that a power to haul a state into court without its consent would be an affront to the state’s “dignity.”

The justices have also expressed particular opposition to money claims against a state. Their position may reflect the constitutional reticence of an unelected body to order funds to be appropriated when such funds would have to be raised by taxing or borrowing (“No taxation without representation”). More likely, it recognizes the political reality that courts have no real means to enforce such an order against an unwilling legislature.

Yet, Article III of the Constitution explicitly permits suits in federal court between states and various opponents, from the United States to foreign countries and their citizens, to other states and their citizens. It was argued that, by approving the Constitution, the states to that extent surrendered their sovereign immunity. So, too, thought Alexander Chisholm, the executor for one Robert Farquhar of South Carolina, when he attempted in 1793 to collect on a debt owed to the deceased by the State of Georgia for goods supplied to that state during the Revolutionary War. Georgia had refused to pay for the supplies on the convenient excuse that Farquhar was a British loyalist, though apparently a not-too-principled one.

Chisholm sued Georgia in the Supreme Court. Indeed, he was able to get the attorney general of the United States, Edmund Randolph, to argue the case for him. Georgia, relying on its sovereignty, deigned not even to appear so as not to give legitimacy to this judicial affront to its dignity, though it sent the justices a letter of protest denying their jurisdiction to hear the case. The justices ruled 4-1 against the state, on the aforementioned ground that the states had surrendered aspects of their sovereignty as the text of Article III makes clear, and, in Justice James Wilson’s scholarly opinion, on the ground that states as such were not sovereigns at all.

However, the majority may have got it wrong. The Constitution permits suits “between a State and Citizens of another State.” The Chisholm justices suggested that “between” meant the suit could be brought by the state or by the citizen. But the order of parties in the text could also mean that only the state could bring the suit, especially in light of the common law prohibition of suits against unwilling sovereigns.

Significantly, the wording of Article III alarmed Antifederalists during the ratification debates. Alexander Hamilton, in Federalist 81, responded by imagining a hypothetical dispute brought by a citizen of one state against another state over public securities, such as bonds, issued by the latter. This almost exactly foretold Chisholm. Hamilton strongly defended the states’ immunity from suit as natural to sovereignty and reflecting general practice. He belittled the reasoning later advanced by the Chisholm justices as arising from mere implication and a “forced and unwarrantable” construction of the Constitution’s language.

The virulent reaction in the states against the Chisholm case supports Hamilton’s reading of the Constitution. States-rights supporters saw the decision as confirming their suspicion that the new constitution’s federal structure was a smokescreen to deprive the states of their sovereignty and reduce them to “tributary corporations” to the national government. A more concrete and immediate concern was that the decision opened the door for states to be sued over many unresolved war claims, a course that threatened their financial solvency.

In response, Congress proposed the Eleventh Amendment in 1794, which the states approved in less than one year, a record speed. While the Amendment prohibits only suits in federal court and only against a state by citizens of other states or foreign countries, the Supreme Court has held that the Amendment is just a particular example of the broader principle of sovereign immunity. The Court has ruled that a state also cannot be sued by its own citizens or in its own courts without its consent.

Does that mean that citizens are unable to have their rights vindicated against injurious government conduct? Not at all. Similar to what Blackstone opined was English practice, the Supreme Court has recognized a significant exception that allows suits against state officials, if such suits do not, in effect, seek money damages to be pried out of the state treasury. Thus, a state official can be sued to order him to refrain from engaging in violations of the petitioner’s constitutional rights. State sovereign immunity also does not prevent suits against cities and other local bodies. In limited cases, Congress can restrict the states’ sovereign immunity by statute. The United States in some instances can sue states to challenge violations of individual rights created under federal statutes. If a state initiates an action against a defendant, he can bring claims and defenses against the state arising out of the state’s suit.

Finally, the states can consent to be sued for injuries committed by their officials. It may seem counter-intuitive that governments would agree to be sued, but they generally have done so by laws that wholly waive their immunity (California) or that waive it in specified instances (the United States). Such consent meets political demands for compensation of injured parties, and it is more efficient than the previous alternative of having legislators laboriously introduce private bills of relief to be passed as ordinary laws.

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/.

 

March 27, 2012 – Essay #27 – Amendment VI: Right to be Informed of the Charge – Guest Essayist: Professor Joerg Knipprath, Professor of Law at Southwestern Law School

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http://vimeo.com/39239148
Amendment VI:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of counsel for his defence.

The due process clause of the Fifth Amendment embodies the principle that those vested with the power to govern must not act arbitrarily towards the citizenry. This principle has been a long-established and deeply-held value in Western Civilization, dating back to Stoic (and, subsequently, Judeo-Christian) conceptions of individual dignity. It was incorporated into the canon law of the medieval Catholic Church on the argument that, before banishing Adam and Eve from the Garden of Eden, God gave them a hearing. In Anglo-American constitutional history, it found expression in a provision of the Magna Charta extracted from King John by the nobles that “No free man shall be taken or imprisoned or dispossessed, or outlawed, or banished, or in any way destroyed, nor will we go upon him, nor send upon him, except by the legal judgment of his peers or by the law of the land.” Closer in time to the Constitution, that protection was included in substantially similar language, in the paradigmatic Massachusetts constitution of 1780.

It is self-evident that among the most fundamental protections against governmental caprice is the requirement that, before one is tried and subject to losing life, liberty, or property, one must be notified of the reasons by grand jury indictment or criminal information. Languishing in jail, or living under a cloud of unspecified suspicion, with the overbearing power of the State poised to strike at his life, liberty, or property for a reason not made known, exacts an emotional toll and prevents the targeted individual from preparing his defense. In the more modern context provided by the movie “Animal House,” operating under “double secret probation” puts the recipient at the whim of a vindictive governing bureaucracy.

Then why did the Framers not simply limit themselves to a due process protection, but provide various more precise protections for the accused? Individual clauses in the Fifth (the protection against compelled self-incrimination), Sixth, and Eighth Amendments (no excessive bail) Amendments are specifications of the broader contours of the due process guarantee in the Fifth Amendment. Many of these specifications arose out of the particular experiences of the Americans with British rule. The specific requirement of notification of criminal charges began to appear frequently in early state constitutions, but, unlike other specific protections such as jury trials, had been rare in earlier colonial charters and declarations of privileges and liberties. The Massachusetts constitution of 1780 again provides a model, “No subject shall be held to answer for any crime or offence until the same is plainly, substantially and formally, described to him….” Thus, an indictment must not only be clear, but must “contain the elements of the offense intended to be charged and sufficiently apprise the defendant of what he must be prepared to meet,” as the Supreme Court has opined.

The requirement of notice of charges applies not only to procedural steps that must be taken in regard to the accused. There is also a substantive component that the law under which he is charged be written in a way that furnishes him a reasonably definite standard of guilt. Again, this ties into more general due process notions that a law is unconstitutionally vague if the “average person is left to guess at its meaning,” or if, “based on common understanding and practices, the language of the law reasonably could be construed in several ways, one of which would make the conduct legal.” The old saw that “ignorance of the law is no defense” loses all force if the language of the law is unduly vague.

One historical example of the dangerous malleability of law, especially in the hands of crafty and overbearing prosecutors, was the application of English treason law. Before the Statute of Treason was adopted in 1352, it included various crimes other than warring against the king or aiding his enemies. The contours changed as the king saw fit and extended to ordinary crimes against the “peace of the realm,” such as the murder of the king’s messengers and armed robbery Even after the statute, it included counterfeiting and listed such oddities as “imagining the death of the king, his consort, or his eldest son; violating his consort, or eldest unmarried daughter, or the wife of his eldest son” even before the text discussed levying war against the king. That statute itself was frequently altered and applied in unpredictable ways until a series of reforms by, curiously, the 17th century court of Star Chamber and later Parliaments. Due to this history, as well as the harsh, even brutal, consequences that could result from conviction for treason, colonial charters and state constitutions sought to tighten the definition and reign in the consequences. The Framers of the Constitution followed suit and made treason the only clearly defined crime in the Constitution.

More recently, the Supreme Court has addressed the “notice” issue in striking down vagrancy laws and laws based on certain personal “characteristics.” For example, an ordinance from Jacksonville, Florida, was declared unconstitutional that punished, among others, “persons who use juggling or unlawful games or plays…persons wandering or strolling around from place to place without any lawful purpose or object, habitual loafers…persons neglecting all lawful business and habitually spending their time by frequenting houses of ill fame, gaming houses, or places where alcoholic beverages are sold or served, persons able to work but habitually living upon the earnings of their wives or minor children” as vagrants. To the Court, this law cast too wide a net and left too much unpredictable discretion to the police to provide a suitable (and constitutional) rule of law. Punishing (defined) aggressive begging is one thing; punishing people “hanging out” is another.

In similar vein, a New Jersey statute that penalized “gangsters” was struck down because it did not provide a usable definition. More recent anti-gang statutes and injunctions have survived constitutional scrutiny because they prohibit defined gang activities, rather than mere status as a gangster. Led by California’s Street Terrorism Enforcement and Prevention Act and the state’s pioneering use of anti-gang injunctions, a majority of states have enacted this type of legislation. The federal government also targets gangs through the Racketeer Influenced and Corrupt Organizations Act (RICO), which punishes gangster-focused conduct. The latter example also shows the dangers of broadly-worded laws, as the statute for a couple of decades was used against targets, such as financial institutions and other businesses, well beyond the intent of the statute’s drafters. One critic claimed that the only groups not targeted under the law were actual racketeers.

The courts recognize, however, that statutes are inherently vague. Language has its limits. Indeed, requiring too much definition would likely make a statute more ambiguous by increasing its complexity and verbosity. Moreover, statutes look forward and are intended to address actions still undone by persons still unknown. There has to be play in the joints. Conspiracy laws, and statutes that prohibit mail and wire fraud, “unreasonable” restraints of trade, or conduct that the “reasonable person knows would annoy another by creating an unreasonable noise” provide sufficiently precise notice. Insufficiency of notice of the charges based on the purported vagueness of a law is almost invariably a futile argument. A defendant whose only hope for avoiding conviction is based on such a tactic is well advised to seek a plea bargain.

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/.

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March 15, 2012 – Essay #19 – Amendment V: Right Against Double Jeopardy – Guest Essayist: Professor Joerg Knipprath, Professor of Law at Southwestern Law School

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http://vimeo.com/38540555

Amendment V:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The 1999 movie Double Jeopardy, starring Ashley Judd and Tommie Lee Jones, focused on a wife who was wrongfully convicted of murdering her husband who had staged his own killing. One theme suggested by the title and by some scenes of prison lawyering is that, having once been convicted of murder, the wife could not be tried again if she now murdered her husband. Hardly.

The protection against double jeopardy is deemed a fundamental human right with a tradition well-entrenched in Western Civilization going back at least to ancient Roman law. The doctrine was part of the English common law long before the Constitution, although, curiously, express double jeopardy protections were not well-represented in the early state constitutions or in the proposals for amendments submitted by the state conventions that ratified the Constitution. Incidentally, the phrase “life or limb” today is read as “life or [physical] liberty,” since drawing-and-quartering and other punishments that produce corporal maiming have gone out of style and would likely constitute “cruel and unusual punishment” in violation of the 8th Amendment.

In Green v. U.S. in 1957, the Supreme Court justified the doctrine as reflecting

“the underlying idea…that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense, and ordeal compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.”

On that last point, if the state gets numerous turns at bat, it only needs to be successful once, which produces significant incentive to try repeatedly. At the very least, such tactics will cause more defendants, emotionally and financially exhausted and faced with the deeper resources of taxpayer-funded prosecutors, to enter factually dubious guilty pleas.

The clause raises several questions. First, when does jeopardy “attach”? Second, what exactly can the government not do? Third, what exceptions are there?

Jeopardy attaches when a jury is empanelled and sworn. If the trial is to a judge only, it attaches when the first witness is sworn. If there is a guilty plea, it attaches when the court accepts the plea. An acquittal by the judge or jury bars the government from appeal because a retrial for that offense would violate the double jeopardy rule.

Notice that the government cannot retry the offender for the same offense. What if a defendant is acquitted of robbery, which combines larceny (taking and carrying away another’s personal property without consent and with the intent to deprive him of the property permanently) and assault (intentionally creating a reasonable apprehension of immediate bodily injury)? Can the prosecutor now seek to try the defendant for larceny and/or assault arising out of the same criminal act? The common sense reaction is “no.” That is also the legal stance, because two crimes constitute the “same offense,” unless each of them has at least one additional element that is different from the other. Here, while robbery has a different element than either larceny or assault (since it is a combination of the two), neither larceny nor assault has any additional element from robbery. A prosecutor who has failed in a prior trial cannot proceed against the same defendant for a “lesser-and-included” offense.

Likewise, a prosecutor who, for example, successfully prosecuted a defendant for larceny and has that conviction under his belt subsequently cannot roll the dice again and seek to try that defendant for the greater crime of robbery out of the same transaction. The lone exception to that rule is that a prosecution for battery (unlawfully using force against another that causes bodily injury) does not bar a subsequent trial for murder if the victim eventually succumbs to his wounds from the attack.

While the rule gives defendants some basic and significant protections, it is also riddled with exceptions and qualifications. In that vein, a hung jury is no bar to retrial. Neither are certain motions for mistrial by the defendant where the mistrial is not caused by prosecutorial misconduct. For example, conditions arise that make a continuing fair trial impossible in that location. There is also generally no violation of double jeopardy for a retrial if the defendant appealed and was successful in overturning the earlier verdict, or if the prosecution successfully appealed a trial court dismissal of the case when there was no acquittal but the trial court based its decision on a legal motion.

Significantly, double jeopardy does not apply to non-criminal proceedings. A public official who is impeached and removed from office for a crime can also be prosecuted for that act under the criminal law. In similar vein, a defendant who is convicted or acquitted in a criminal trial can be sued by the victim for a civil wrong. A notorious example of that is the former football star and advertising pitchman O.J. Simpson. Despite his acquittal of murder charges for the killing of his estranged wife and another victim, he was subsequently found liable for civil damages for “wrongful death.”

Returning to our movie, yet another exception shows the lack of reliability of jailhouse lawyering (or of Hollywood screenwriters). The double jeopardy clause does not apply to different sovereigns. Conviction or acquittal under the laws of one sovereign does not bar a different sovereign from prosecuting the defendant under its law for the same charge arising out of the same conduct if the conduct affected that sovereign. Although they usually avoid duplication, the state of California could prosecute a drug dealer for violation of its drug laws and then turn the perpetrator over to the federal government for prosecution under federal drug laws. A version of that was the 1993 federal prosecution of four Los Angeles police officers for violation of federal civil rights laws arising out of the use of excessive force in arresting Rodney King in 1991. The officers had mostly been acquitted in a 1992 state prosecution arising out of the same incident.

The legal assumptions of the movie are flawed. Being wrongfully convicted of murder may entitle the defendant to civil damages from the government. But it does not create a dispensation from prosecution for a subsequent murder. The Constitution has no “get-out-of-jail-free-for-murder” coupons to be redeemed as the occasion demands. More pertinent, had Louisiana prosecuted the movie’s protagonist for the murder of her husband, the prior prosecution by the state of Washington would not have placed her twice in jeopardy of life or limb for the same offense.

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/.

March 5, 2012 – Essay #11 – Amendment II: Well Regulated Militia Being Necessary to the Security of a Free State – Guest Essayist: Professor Joerg Knipprath, Professor of Law at Southwestern Law School

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Amendment II:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

 

Amendment II: A Well Regulated Militia Being Necessary to the Security of a Free State

When Paul Revere and his companions alerted the Massachusetts countryside of the movement of British troops, he warned his fellow-British subjects, “The Regulars are coming out.” In contrast to those troops, with their standard drill, formations, equipment, and armament, the Patriot combatants at Lexington and Concord (as well as Revere himself) were “Minutemen,” a lightly-armed, organized rapid-response component of the colonial militia. As all such militias at the time, they were “irregulars,” though the quality of the Minutemen’s equipment and training was superior to that of the militia as a whole. The distinction between such organized parts and the general militia was continued by the states, and, beginning in 1792, in the second federal Militia Act. It is a distinction that, despite changes in the nature of the militia concept, is preserved in current law.

Militia service in the colonies/states extended to all men able to bear arms, subject to some variations as to age and race. Universal service was both a practical necessity—the need to deal with insurrections and with Indian raids—and a reflection of the ancient republican idea that military service was a necessary, though not sufficient, qualification for participation in the community’s governance. Laws also typically required that individuals keep arms sufficient to serve in the militia. In fact, the armament of individual militiamen varied widely, from military-style smooth-bore muskets (e.g. the “Brown Bess”), to—more rarely—longer-range but slower-to-reload rifles, to fowling pieces and other less useful weaponry. Due to these and other limitations, militia units were found ineffective and unsuitable for pitched battle. In the field, they were used mainly for irregular, partisan-style warfare and, as adjuncts to regular units, for sniping and for harassment from the flanks of the line of battle.

There were frequent complaints about the militia’s performance. In a letter to the Continental Congress, General George Washington acidly passed judgment:

To place any dependence on the Militia, is, assuredly, resting upon a broken staff. Men just dragged from the tender Scenes of domestic life; unaccustomed to the din of Arms; totally unacquainted with every kind of military skill, which being followed by a want of confidence in themselves, when opposed to Troops regularly trained, disciplined, and appointed, superior in knowledge and superior in Arms, makes them timid, and ready to fly from their own shadows….

Alexander Hamilton, who made the jump from a New York militia artillery unit to the Continental Army, was more conciliatory, magnanimously softening his criticism with praise in Federalist 25:

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 know and feel, that the liberty of their country could not have been established by their efforts alone, however great and valuable they were. War, like most other things, is a science to be acquired and perfected by diligence, by perseverance, by time, and by practice.

Hamilton supported a standing army. But, as Elbridge Gerry and other anti-federalists argued, the militia was a necessary bulwark against the dangers from a national standing army. Still, the war-time experience described above could not be ignored. To be effective, such a militia had to be “well-regulated.” To “regulate” was to standardize, to conform to a norm, here, standard weaponry, equipment, and drill. The word did not have today’s principal connotation, to “control”; the early American word for the latter was the government’s power to “police.”

The Constitution’s critics were alarmed that Congress was given the power under the Constitution to “provide for organizing, arming, and disciplining the Militia….” In the minds of suspicious republicans, this afforded Congress the means to establish only a “select militia” under national control, in effect creating a national standing army by another name and laying the states prostrate at the feet of the national Leviathan. Moreover, like the 17-th century Stuart kings, Congress could complete the tyranny by passing laws to disarm individual Americans.

To lessen that potentiality, the Second Amendment was adopted for what has been described today as, figuratively speaking, a “nuclear option.” To the extent that Congress does not regulate the militia, the states are free to do so under general principles of federalism, as the Supreme Court recognized in 1820 in Houston v. Moore. The Second Amendment is not needed for that possibility. But if the Congress seeks to disarm the citizenry that composes the militia, recourse has to exist to first causes, here, the ultimate right of the people to defend their liberties, their “unalienable rights” with which they are “endowed by their Creator.” As the Minutemen did in opposition to King George, the people have the right to organize themselves into militias if the states are impotent to oppose a national tyrant. That right belongs to each individual, though it would be exercised collectively, just as the First Amendment’s right to assemble to petition the government for a redress of grievances would be. It is crucial to an understanding of the Second Amendment to keep this point in focus.

Then why did the Framers not just write that there is a personal right to own guns? Describing the Second Amendment, Supreme Court Justice Joseph Story wrote in his influential 1833 treatise on the Constitution, “The militia is the natural defence of a free country….” He then famously continued, “The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers….”

Notice the division and simultaneous relation between the reason for the policy and the definition of the right itself. It mirrors the division in the Second Amendment, both in the original draft version presented by James Madison to the First Congress and in the restyled final version. The pattern for the Second Amendment, as for much of the rest of the Bill of Rights, was the English Bill of Rights of 1689, which, too, set up a similar textual division between concerns over the threat from standing armies and the right of the people to have arms. With some internal variations, early state constitutions maintained that distinction. Within the states, the danger from standing armies would come from their own governments, which would also be the ones to organize their militias. If the right to keep and bear arms in those constitutions applied only within the state-organized militia, rather than as an individual right, it would hardly present an obstacle to a potentially tyrannical state government. Continuing the trend, petitions for a bill of rights submitted by the state conventions ratifying the Constitution again contained this familiar distinction.

Nor is the existence of a prefatory clause in the Second Amendment unusual. While the structure is different from that of the other amendments, the Second Amendment’s style was quite ordinary at the time, as a quick review of the English Bill of Rights, colonial charters, the Northwest Ordinance of 1787, state constitutions, state convention petitions, and other foundational documents amply shows. During the early Republic, such bills of rights were often viewed, as Hamilton dismissively argued in Federalist 84, as mere “aphorisms…which would sound much better in a treatise of ethics, than in a constitution of government.” Such explanatory clauses allowed for ringing philosophical declarations. Today, such clauses have no legal effect but can shed light on the ratifiers’ motivation for mentioning the provision and can help clarify ambiguities. Still, as Justice Antonin Scalia wrote in his extensive analysis in the 2008 gun rights case, D.C. v. Heller, a prefatory clause cannot limit a well-understood right.

If it is said that a vigorous First Amendment makes possible a healthy republic, a vigorous Second Amendment is needed to ensure it.

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/.

 

June 21, 2011 – Amendment XXIV of the United States Constitution – Guest Essayist: Joerg Knipprath, Professor of Law at Southwestern Law School

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Amendment XXIV

1:  The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any state by reason of failure to pay any poll tax or other tax.

2:  The Congress shall have power to enforce this article by appropriate legislation.

A poll tax is an ancient device to collect money. It is a tax on persons rather than property or activity. As a regressive tax from the standpoint of wealth, it is often unpopular if the amount at issue is steep. But it can also be unpopular for other reasons.

In the United States, such a capitation tax was assessed in many states on the privilege of voting. Amounts and methods varied. One of the last poll taxes of this type, that of Virginia, was just $1.50 per person at the time it was struck down by the Supreme Court in 1966. That is not more than $10.00 in current money, hardly an exorbitant price, except for the truly destitute. But the problem was more than the amount. It was the manner of administration.

The common practice was to require that the tax be paid at each election, and that a potential voter demonstrate that he had paid the tax for a specified number of previous elections. If not, those arrearages had to be paid to register to vote in the ongoing election. The effect of the tax was to hit many lower income groups, but primarily Southern blacks, whose participation in elections dropped to less than 5% during the first part of the 20th century. To be sure, that low rate of participation was not entirely due to the poll tax, but that tax was a particular manifestation of a regime of suppression of political participation by blacks.

The 15th Amendment had been adopted to prohibit overt racial discrimination in qualifying to vote. However, the poll tax and other restrictive measures, such as literacy tests, were not, strictly speaking, race-based, so they did not come within the 15th Amendment. A different solution was needed, according to those who saw the poll tax as intolerable. Literacy tests, if fairly administered (though often they were not), had a clear connection to the responsible exercise of the voting franchise that poll taxes lacked. After all, especially in those years before the electronic media, having a literate electorate was a significant community interest. Republican theory has traditionally looked to having those with the most interest and highest stake take the leading role in the community. Literacy provided a foundation to acquire the knowledge needed for a wise and effective participation in res publica. Poll taxes, on the other hand, are just revenue-raising devices, and, since they are applied equally per capita, they are removed from republican considerations of having those with the highest economic stake in society direct the political affairs of that society.

Opposition to the poll tax increased during the 1930s and President Roosevelt briefly attacked it in 1938. But FDR had to be mindful of the powerful influence of Southern Democratic barons in the Senate and the crucial role that the Southern states played in the politically dominant Democratic coalition. By the 1940s, the House of Representatives passed legislation to outlaw poll taxes but a Southern-led filibuster in the Senate killed the effort. By 1944, the Republican Party platform and President Roosevelt (though not his party’s platform) called for the tax’s abolition.

Eventually, qualms arose about using ordinary legislation to block the tax. Article I of the Constitution places principal control over voter qualification in the hands of the states. The 15th Amendment (race) and the 19th Amendment (sex) had limited the states’ discretion. To many—even opponents of the poll tax—the message from those amendments was that limitations on state power had to proceed through specific constitutional amendment. The opinions issued by the Supreme Court seemed to echo those sentiments, as the Court had accepted the predominant role of the states in that area even when it struck down the racially-discriminatory “white primaries” in the South in the 1940s and 1950s. The debate allowed Southern supporters of the poll tax to characterize the controversy as a states’ rights issue.

The effort to adopt a constitutional amendment to ban poll taxes dragged on through the 1950s into the 1960s, even as support for the tax grew weaker. Literacy tests remained widespread, even in the North. But Southern states, too, abandoned poll taxes until, in 1960, only 5 states retained them. Finally, in March, 1962, the Senate approved what would become the 24th Amendment. This time, no Southern filibuster occurred. In August of that year, the House concurred. The concerns over state sovereignty remained, in that the amendment proposed to abolish poll taxes only in federal elections, leaving states and municipalities free to continue the practice for their internal affairs.

When the amendment was sent out to the states, every state of the old Confederacy, but two, refused to participate, still portraying the matter as a states’ rights issue. The two exceptions were Mississippi, which formally rejected the amendment, and Tennessee, which approved it. Outside the South, every state adopted the amendment between November, 1962, and March, 1964, except Arizona and Wyoming.

But, as mentioned, states were still free to adopt poll taxes for local elections. This apparently was a call to action for the Supreme Court. Casting constitutional caution to the wind, the Court in Harper v. Virginia Board of Elections in 1966 struck down the Virginia poll tax for state and local elections. Creating an odd alloy of different constitutional concepts, due process and equal protection, Justice William Douglas announced for the majority that poll taxes impermissibly discriminated on the basis of wealth and/or improperly burdened a fundamental right to vote. In any event, the opinion announced, the Virginia tax violated the 14th Amendment.

The Court obviously was aware of the 24th Amendment, so recently adopted. But the learned justices must have found the effort to amend the Constitution through the proper Article V process unsatisfying. It appears that the 24th Amendment, having been limited to federal elections to avoid further intrusion into state sovereignty over voting qualifications, was not constitutionally rigorous enough. The Constitution, as it thus stood, was unconstitutional in the eyes of the Supreme Solomons. If the Court was right in Harper, members of Congress and of the state legislatures could have saved themselves much trouble and just used the 14th Amendment to declare all poll taxes unconstitutional. Congress could have accomplished the goals of the 24th Amendment, and more, just by passing a law to enforce these supposed rights protected under the 14th Amendment.

Of course, traditionally the 14th Amendment was not understood to provide direct restrictions on state control of voting qualifications. Otherwise, the 15th Amendment, as it applies to states, would have been unnecessary. The Court had used the 15th Amendment to strike down certain voting restrictions on race earlier in the 20th century, and did not even begin to take gingerly steps towards the 14th Amendment until striking down the “white primaries.”

Not much significance, other than as a symbol and a constitutional curiosity remains of Harper. The Court since then has repudiated the notion of wealth as a constitutionally “suspect” classification entitled to strict judicial scrutiny under the equal protection clause. As well, the notion of voting as a fundamental right protected under the due process clause, has had a checkered history.

Rights conceptually are “fundamental” if they do not depend on a political system for their existence; they are “pre-political” in the sense of the Anglo-American social contract construct that the Framers accepted. Freedom of speech and the right to carry arms for self-defense come to mind. Voting is an inherently political concept that does not exist outside a political commonwealth, and the scope of the voting privilege (that is the meaning of “franchise”) is, necessarily, a political accommodation. Even republics, never mind monarchies, have no uniform understanding of who may be qualified to vote. The great historical variety of arrangements of republican forms of government, and the inherently political nature of defining them, is one reason the Supreme Court has not officially involved itself in defining what is a republican form of government guaranteed under the Constitution.

A final word about the 24th Amendment: Historically, many republics, including the states in our system, required voters to meet designated property qualifications, as a reflection of having a sufficient stake in the community to vote responsibly (and to pay for the cost of government). Strictly speaking, the 24th Amendment does not forbid those. The Supreme Court has upheld property qualifications for voting for special governmental units, such as water districts. One wonders, whether the abolition of such qualifications, if they were required in all elections, would need a constitutional amendment today, or whether the Supreme Court would just wave the magic wand of the 14th Amendment, as it did in Harper.

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/.

June 13, 2011 – Amendment XVIII of the United States Constitution – Guest Essayist: Joerg Knipprath, Professor of Law at Southwestern Law School

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Amendment XVIII

 

1:  After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.

2:  The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.

3:  This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.

Prohibition was not a novel idea in 1919. It was part of a social reform movement, the first waves of which had lapped American shores during the middle of the 19th century. It was a movement different from the ecclesiastical Great Awakenings that had surged periodically through the American colonies, though it shared some connection with those movements. Still, these reforms were sufficiently novel and widespread to lead Ralph Waldo Emerson to characterize them as a “war between intellect and affection” and its adherents as “young men…born with knives in their brain.”

Thirteen states had passed laws that prohibited the sale of alcohol by 1857, including, incredibly from a 20th-century perspective, New York. Following the Civil War and abolition of slavery, the enthusiasm for social reforms in general was exhausted in favor of a general yearning for a return to normalcy. But it returned with a vengeance towards the end of the century, with prohibitionists joining women’s rights groups to combat “demon rum.” That urge fed into a broader social movement to better the human condition and, indeed, human nature. While reformation of the human soul previously had been mainly the province of religion, the remaking of human nature had become, by the 20th century, as much a secular as a religious project. The growing middle class, “social science” movements in the study of human institutions, modern psychology, and old-style political power calculations combined in the Progressive Movement. Its adherents sought to improve human beings, as well as institutions, whether or not those human beings or institutions wanted to be improved.

The Progressives looked to the power of the state, not to individuals or private groups, to get things done efficiently. For many of their leaders, such as Princeton professor (and eventual U.S. President) Woodrow Wilson and his later advisers, such as Herbert Croly, the old institutions, such as the Constitution and the courts, were anachronisms that prevented the emergence of a better order, led by an enlightened and [P]rogressive elite. To achieve what critics then and now have characterized as totalitarianism of more or less soft type, these Progressives looked to the law as the tool to forge the new order. Law was no longer a series of constructs that reflected an inherent reason and that was useful to provide some rules to maintain a basic order in society. For the Progressives, the law was nothing less than an extension of social policy.

Alcohol prohibition also reflected the Progressive impulse to national mobilization to address issues, and the desire for a strong national government led by a strong and charismatic leader. It is not coincidental that these traits were also found in various continental European mass movements that sought to establish the new man, freed of traditional human weaknesses. The American version may have lacked some of the more pugnacious aspects of its European counterparts in Italy, Spain, Germany, and the Soviet Union, but it was close enough. As the National Review writer Jonah Goldberg has written, the period was one episode of America’s “Liberal Fascism.”

Prohibition previously had primarily been the project of the states, with Congress and the Supreme Court assisting “dry” states by declaring that their prohibitions did not violate federal control over interstate commerce. By 1913, in the Webb-Kenyon Act, Congress went further, by affirmatively forbidding the shipment of liquor in interstate commerce into dry states. Thus, prohibition became a national matter, a development also reflected in federal criminalization of drug trafficking, gambling, and prostitution. All of those were vices that the Progressives (just like their reformist ancestors) saw as products of a craven humanity that needed to be—and could be—reformed, while their critics saw such activities as necessary social safety valves, inevitable for societies composed of humans that could, at most, be nudged towards slight and gradual enlightenment at the cost of great personal effort of which most people were incapable. For the critics, laws against such behavior had the same effect as telling the tides not to come in (or commanding the sea levels not to rise).

By 1919, the Eighteenth Amendment completed the process by prohibiting the manufacture, transportation, and sale of intoxicating liquors within the United States. Later that year, Congress acted on the authority it had under that amendment and enforced national prohibition through the Volstead Act. That law set the maximum permissible alcohol content at 0.5%, an amount that outlawed anything stronger than juice from stored oranges.

In light of the negative historical reputation that has developed around Prohibition, it bears remembering that the concept was hugely popular initially. It took barely one year for the needed 36 states to approve the 18th Amendment. However, that support turned to opposition within a very brief time, in the process raising a number of constitutional questions about that amendment specifically, and about the constitutional amendment process more generally.

A novel attribute of the 18th Amendment was a clause that required the amendment to be adopted within 7 years. When the issue was presented to the Supreme Court in Dillon v. Gloss in 1921, Justice Willis Van Devanter upheld this limitation for a unanimous court. Van Devanter concluded this clause was not part of the amendment, but part of Congress’s resolution of submission of the amendment to the states. Therefore, such a clause did not violate Article V, which deals with amendment of the Constitution.

Van Devanter’s opinion was important for the proposed Equal Rights Amendment of the 1970s. When that amendment failed to gain passage during the time (7 years) set, Congress by a majority vote—but not two-thirds—added three years to the timetable for adoption. While this action arguably was constitutional in light of Dillon, it came at a political price. Opponents made an effective case that the extension was political overreaching, at best, and unconstitutional, at worst.

The Dillon court had also declared that it was a good idea that constitutional amendments be adopted within a certain time-frame, to reflect a dominant political consensus at a particular time. Van Devanter noted that there were still several proposed amendments that had not been ratified, including two from the original twelve in the Bill of Rights. He questioned whether such an amendment would be legitimate, if adopted after such long dormancy. That hypothetical became concrete when the 27th Amendment (dealing with Congressional pay changes) was adopted by the requisite number of states in 1992, after two centuries of constitutional purgatory.

Interestingly, Van Devanter may have had a point because the practice has been not to allow states to rescind their approval of an amendment even though the amendment may not have been adopted on the date of the attempted rescission. Of course, states are free to approve after having previously refused to adopt the proposal. This one-way ratchet in favor of approval has little to recommend it jurisprudentially over the opposite view. It was simply the product of political necessity, when Congress refused to allow states to rescind approval of the 14th Amendment because the unpopular and controversial amendment’s congressional supporters needed every state they could to get it past the constitutional finish line.

Another curiosity of the 18th Amendment was that, as disillusion set in, many of the new opponents were Progressives and elites of all political stripes. Due to the perceived difficulty of repealing the amendment, they urged nullification by having the states refuse to enforce the federal laws and decline to make their own. The irony of their position was not lost on them, as they openly appealed to the success that Southerners had enjoyed with their refusal to enforce the 14th and 15th Amendments. Sounding like John C. Calhoun and other 19th-century Southern apostles of nullification, these good liberals distinguished between lawbreaking and orderly, principled, majoritarian nullification.

Another question involved whether the Ohio legislature could approve the 18th Amendment when a non-binding popular referendum had resoundingly rejected it. In Hawke v. Smith in 1920, Justice William Day’s opinion for a unanimous Supreme Court held that the legislature, voting on a constitutional amendment was performing a federal function under Article V, not a state function. Since Article V did not provide for popular referenda, the voters of Ohio had nothing to say about the matter, a proposition of some delicacy, since state legislative elections rarely turn on how a legislator proposes to vote on a federal constitutional amendment that, typically, is not submitted until after such election.

Finally, a number of opponents urged that any amendment, such as the 18th, that curtailed individual rights, must be adopted by state constitutional conventions, not state legislatures. Though it was not expressly required by Article V, such had been the approach for the Bill of Rights. The Supreme Court rejected that argument unanimously in U.S. v. Sprague in 1931, but the argument had such political appeal that Congress directed that the repeal of prohibition through the 21st Amendment be decided by state constitutional conventions.

 

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/.

May 30, 2011 – Amendment VIII of the United States Constitution – Guest Essayist: Joerg Knipprath, Professor of Law at Southwestern Law School

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Amendment VIII

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

The text of the Eighth Amendment, concise and plain, masks the fluidity that the Supreme Court has assigned to its words. The more intensely scrutinized portion, by far, is the prohibition against cruel and unusual punishments. There are two applications that have been particularly significant in recent years, the constitutionality of the death penalty and the application of the amendment to “enhanced interrogations.”

It would be fatuous for opponents of the death penalty to claim that the Framers understood the death penalty to be unconstitutional. The Constitution’s text belies such an assertion, because the Fifth Amendment three times makes it plain that the death penalty is a proper punishment for crime: “No person shall be held to answer for a capital…crime, unless on…indictment of a Grand Jury…; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb…, nor be deprived of life, liberty, or property, without due process of law.” Moreover, the common law at various times recognized capital punishment for a couple of hundred criminal offense.  Given the additional availability of whipping, branding, ear cropping, and other such forms of corporal chastisement, the Framers’ understanding of “cruel and unusual punishment” was restricted to those torturous punishments that stood out for their infliction of extended periods of particularly gruesome pain for no end other than the infliction of that pain, and that were applied with such extreme rarity as to undercut any realistic claim that they served a moral purpose such as retributive justice or moral reformation. An example would be the rarely-used, but then still available, punishment of drawing and quartering applied in exceptional treason cases in Britain.

To further the cause of modern death penalty abolitionists, the Court was obliged to impress upon the Eighth Amendment an interpretive mechanism that could supersede the specific textual recognition of the death penalty’s legitimacy. That mechanism is the judicial matrix of “evolving standards of societal decency” that would “guide” the Court’s interpretation of the Eighth Amendment.  Using “cruel” in a qualitative sense and “unusual” in a quantitative sense, this approach allows for a judicial finding that punishments that fall into comparative disuse, either by change in legislation or even through failure of prosecutors to seek the death penalty or of juries to impose it on a regular basis for certain crimes, become violations of the Eighth Amendment. Particularly galling to the opponents of this approach, such as Justice Scalia, is that the procedural hurdles created for the imposition of the penalty in past cases themselves are much to blame for the (comparatively) infrequent use of the death penalty.

Although the Court has not finally found the death penalty to violate the Eighth Amendment, the end is clear. Death penalty jurisprudence has been one instance of ad hoc judicial law-making after another.  Capital punishment, the Court once opined, is applied too haphazardly.  When states responded with mandatory death penalty laws and other restrictions on jury discretion, the Court found those wanting in that juries must be able to exercise discretion to impose the death penalty or not.  However, further decisions then determined that the jury discretion must be subject to specific guidance. Moreover, the judge must have the power to override a jury’s imposition of the death sentence, but not the other way around.  Juries must be able to hear any and all mitigating personal evidence for the defendant, dredging up every aspect of the defendant’s life that would place some blame for the crime, somehow, on some person other than the defendant.  On the other hand, aggravating evidence, such as about the victim whose life was snuffed out, had to be very carefully limited.

As to the “evolving standards of decency” test, the Court once declared that the Eighth Amendment must not cut off the normal democratic process. Yet, more recently, the Court, led by Justice Kennedy, has taken great pains to do just that, overturning laws that provided the death penalty for older juveniles who commit particularly heinous murders and for non-homicide crimes. Kennedy, in particular, while dutifully declaring the contrary, seems intent on imposing through the Constitution his own vision of the moral and “decent” society. The Court earlier pronounced that the “Eighth Amendment is not a ratchet, whereby a temporary consensus on leniency for a particular crime fixes a permanent constitutional maximum, disabling States from giving effect to altered beliefs and responding to changed social conditions.” Once more assuming the role of philosopher-king, Kennedy in the last capital punishment case, Kennedy v. Louisiana (2008), rejected the idea that the death penalty could be expanded (though, in fact, the law at issue there, capital punishment for aggravated child rape, did not “expand” the death penalty).  After all, that would not fit Kennedy’s Hegelian march of “evolving standards of decency…on the way to full progress and mature judgment.” So, there is only one direction of evolution, regardless of what the people might enact, one that leads, Kennedy all but assured the abolitionists, to the eventual demise of the death penalty.

In Roper v. Illinois (2005), the juvenile death penalty case, Justice Kennedy resorted to comparing the United States unfavorably with European systems, as well as with other, even less savory, exemplars of justice, and, as he has done in some other areas of constitutional law, invoked the decisions of his fellow Platonic guardians on tribunals overseas.  Due to the rebukes launched by Justice Scalia in his dissents, the Court is less inclined these days to feature that line of internationalist argumentation as a basis for guidance of the American Constitution in a direction Justice Kennedy finds to be more civilized.

International standards have also been used in attempts to limit the use of techniques to interrogate suspected terrorists. Leaving aside specific anti-torture statutes or treaty obligations, note that the Eighth Amendment itself only prohibits cruel and unusual “punishment.” Not only is this limited to torture and other extreme actions; the Court in past cases repeatedly has held that it applies only to punishment, not to other actions by the government. Hence the challenged behavior must be directed at “punishing” the individual. This distinction between punishment and other objectives in the use of force against prisoners is one long established in many Western systems of law, and one that the Framers clearly understood.

If a prisoner brings a claim that excessive force was used in violation of the Eighth Amendment, he must show that this was for the purpose of punishment. If the force or condition of confinement was for another purpose, the Eighth Amendment is not implicated.  Thus, the state of mind of the persons conducting the interrogation becomes important. Did they do so for purpose of discipline, security, or information gathering, or did they do so simply to punish? That state of mind can be demonstrated circumstantially by a number of factors, such as the asserted purpose of the treatment and the degree of force used in relation to the many varied circumstances that triggered the interrogation, an evaluation that implicates the proportionality principle that lurks in Eighth Amendment jurisprudence. Only if the actions go beyond the asserted disciplinary or investigatory needs, might the treatment amount to cruel and unusual punishment. As the Court has said in several cases, the prisoner must show that the government agent acted “maliciously and sadistically for the very purpose of causing harm.”

The prisoner might assert claims that the government violated Fourth Amendment standards against unreasonable searches and seizures, or, more likely, nebulous Fifth Amendment due process standards against treatment that “shocks the conscience.” Even if a foreign terror suspect kept overseas is entitled to those constitutional protections as a matter of right (an issue not resolved even by the Court’s Boumediene decision that, for the first time, granted such detainees access to the writ of habeas corpus), they might not help him.  The “shocks-the-conscience” test is particularly difficult to confine, and the Court employs a utilitarian approach. The Justices have made it clear that it is not just the severity of the method, but the degree of necessity for the challenged action, that will determine whether the consciences of at least five of them are shocked.  In any event, whether or not the justices are suitably shocked under the Fifth Amendment, the Eighth Amendment does not apply to careful methods used demonstrably for the purpose of extracting information.

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/.

May 16, 2011 – Article V of the United States Constitution – Guest Essayist: Joerg Knipprath, Professor of Law at Southwestern Law School

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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.

Article V, which provides the methods for formal amendment is, arguably, the most important provision in the Constitution outside the creation of the structure of government.  That article embodies a compromise over a very contentious issue that was grounded in conflicting doctrines of republicanism and higher law theory swirling during the Revolutionary War period.

On the one hand, 17th and 18th century republican theory called for decisions by majority vote, albeit under a restricted franchise.  This was a proposition that manifested itself in the post-Glorious Revolution English constitutional system in which a majority of the Parliament (effectively, the House of Commons) not only enacted “ordinary” legislation but controlled constitutional change, as well. Under the English system, there was no categorical distinction between ordinary laws and those of a foundational, i.e., constitutional, nature.  For example, the Charter of Rights did not become politically binding until passed in 1689 as a parliamentary bill. This was a manifestation of a “constitution” that, being unwritten, was considered solely a fundamental political ordering, rather than also a fundamental law.  Hence, there was no formal constitutional amendment process outside an appeal to Parliament to pass or repeal laws that were “constitutional” in the operative sense.

This English Whig republicanism had many adherents in the United States among leaders of the Revolution. For them, the problem was not the theory but the practitioners.  Not surprising, then, some early state constitutions, too, placed the amending power with the legislatures.  Even if a state constitution contained a bill of rights that was immune from legislative tinkering, any violation of that command was to be resolved through political action.  Moreover, anything outside that bill of rights was left to legislative change.

Yet, by the 1780s, an entirely different conception became dominant. To be sure, reaction against the entrenched constitutional order arose from the experience of Americans with the militant republicanism of the day embodied in legislative majorities that, in too many states, contributed to political and economic turmoil exacerbated by class warfare rumblings and the trampling of rights in property. Experience may have sufficed to cause disenchantment with the existing constitutional structure, but it was not enough to explain the emergence of the alternative.

Enter the “higher law” conception of constitutions. Americans had lived in colonies governed, directly or indirectly, by royal charters. By their thinking, Americans were in a contractual, and therefore “legal,” relationship with their proprietors and the Crown through these charters and patents, and Parliament simply had no control over them. Local laws were valid, as long as they conformed to the charter.

This emergent “higher law” constitutionalism also had religious and political roots. Focusing on the latter, it was a component of social contract theory. The republican version of the legitimacy of governmental action under the social contract focused on the political mechanism to be used after the commonwealth was formed, namely, legislative majorities. The higher law doctrine focused on the relationship of the majority’s act to the qualitatively superior action of creating the commonwealth. In a strict version of that view, unanimous consent was required to form the social contract.  In the American experience, the Mayflower Compact provided one such example. At the same time, looking at disparate social contract theorists, such as Thomas Hobbes and John Locke, one finds much ambiguity and question-begging assumptions about how exactly the social contract’s obligations arise.

The colonial experience with royal charters fairly early suggested that such documents were first, law; second, fundamental; and third, not amendable as ordinary legislation. They were law because written and, being in the nature of contracts, binding on all signatories (and, perhaps, their successors). They were fundamental because they dealt with matters that went to the very organization of the political commonwealth. They were not amendable as ordinary laws because each free person had to consent to the changing of the deal that created the basis of political obligation and made the acts of government different from those of a brigand. If unanimity was impractical, at least a supermajority ought to be required. Thus, the charter for Pennsylvania as early as 1701 called for amendments to be adopted only upon 6/7 vote of the assembly.

A pure form of this approach was found in the Articles of Confederation. As the Articles can be considered the formal basis for the formation of a political commonwealth, the United States of America, and in light of the fact that the document repeatedly refers to that commonwealth as a “perpetual union,” it is a social contract.  As such, it could only be amended by the consent of all signatories to the compact, though, of course, a state might provide that a majority within its legislature sufficed to bind the state.

That unanimity requirement was quickly perceived as a parlyzing defect of the Articles.  When the Framers of the Constitution considered the matter, they believed that they had to find a way that avoided the potential for constitutional turbulence from radical republican majoritarianism as well as for constitutional sclerosis from rigid social contract-based unanimity. They urged that the supermajority requirements of Article V appropriately split the difference. This is not a matter readily settled.  The procedure has only been invoked successfully 18 times (the original ten amendments having been adopted at one time). What is clear, though, is that the relative difficulty of the procedure has allowed the unelected judiciary to take on the role of de facto constitutional amendment to a much greater extent than the Framers likely anticipated and than what is consistent with classic republican ideals.

Judging by early state experimentation, constitutional change was to occur, if anything, more directly through the people than Article V allows. Constitutions were typically the job of special conventions whose work would be ratified by popular vote.  Actions by such special bodies and by the people themselves were more immediate realizations of popular sovereignty than actions by legislatures, even by legislative supermajorities. George Washington characterized them as “explicit and authentic acts of the whole people.” It was impractical, however, at the national level, to have all people gather at town halls. Nor was it deemed practical — or wise — to have a national vote on amendments.

In Article V, the mechanism of popular participation is the convention. That mechanism is available for the proposal of amendments emanating from the states and the adoption of the amendments by the states. It is interesting, and perhaps disappointing from the republican perspective, that the first has never been used and the second has been used only to repeal another constitutional amendment, regarding alcohol prohibition. Instead, Congress typically proposes, and state legislatures dispose.

There is, however, an institutional reason why no constitutional convention has been called to draft amendments. Plainly put, Congress and the political elites fear that a convention could ignore any specific charge from Congress and draft a whole new constitution. That is, after all, what happened in Philadelphia in 1787. If a matter came close to receiving the requisite number of petitions from states, it is likely that the Congress would itself adopt an amendment and submit it to the states. That is precisely how Congress got around to proposing the 17th Amendment for the direct election of Senators after enough states submitted petitions to put them one short of the required 2/3. Currently, the proposed balanced budget amendment is just two states short.

More troubling to some is whether the people could go outside Article V to form a convention.  That was an issue raised, but not resolved, before the Supreme Court in 1849 in a case involving an insurrection in Rhode Island under the guise of adoption of a “popular constitution.”  Traditionalists point to Article V as providing the means the people have chosen to limit themselves, lest constitutional instability be the order of the day.  In response, republicans assert that American bedrock principles of popular sovereignty (found, among other places in the Federalist Papers) do not admit of so limiting the people’s power. The people ultimately control their constitution, not vice versa. James Wilson, no wide-eyed radical, speaking in the Pennsylvania ratifying convention, defended the Framers’ alleged departure from their charge by the Confederation Congress by declaring what was a self-evident truth to most Americans at the time, that “the people may change the constitutions whenever and however they please.”

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/.

May 11, 2011 – Article IV, Section 2 of the United States Constitution – Guest Essayist: Joerg Knipprath, Professor of Law at Southwestern Law School

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Article IV, Section 2, Clause 1-3

1: The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.
2: A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.
3: No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.

Of these clauses in Article IV, Section 2, the last, the Fugitive Slave Clause, similar to one adopted by the Confederation Congress in the Northwest Ordinance contemporaneous with the drafting of the Constitution, is now a dead letter. Another, the Extradition Clause, imposes a theoretical duty (“shall…be delivered”) on the state governors. But the Supreme Court ruled in 1861 that judicial compulsion, by writ of mandamus, was unavailable. As a result, governors have considered themselves at liberty to refuse requests for extradition when, in their opinions, justice so demands. Rather, the clause is enforced (more or less) politically through interstate compacts, uniform state laws, and (indirectly) federal fugitive-from-justice legislation.

The first clause, the (“Interstate”) Privileges and Immunities Clause, has a long pedigree, yet remains murky in meaning and ambiguous in scope. It is derived from Article IV of the Articles of Confederation (as are the Constitution’s Extradition and Full Faith and Credit Clauses). The existence of these clauses in both charters is evidence of the continuity reflected in the Constitution’s Preamble “to form a more perfect [not a new] Union.” These clauses also are one more manifestation of the bedrock federalism principle of union among states (rather than simply creation of a national government over the states) that runs through both charters.

The Constitution’s version of the P&I Clause is a redaction of the more compendious version in the Articles. Unfortunately, concision did not bestow clarity. Four different meanings have been advanced. The first is that the clause is actually a restriction on Congress not to pass laws that discriminate among different states and the citizens thereof. This interpretation received support from Justice Catron in his concurring opinion in the Dred Scott Case. It is constitutionally obsolete today.

Another interpretation is that the clause guarantees the citizens of each state various rights that are enjoyed by citizens in any other state. That view was specifically rejected by the Supreme Court a century ago. It would have given the Supreme Court the kind of power of review over state laws that it came to acquire more gradually through judicial expansion of the 14th Amendment by the “incorporation” of various Bill of Rights guarantees into the due process clause and the creation of new categories of unconstitutional discrimination under the equal protection clause.

A third interpretation is that the clause guarantees the right of a citizen of a state to exercise the rights that he has in his own state even when visiting another state, that is, to carry his rights of state citizenship throughout the Union. That view, as well, has been rejected by the Supreme Court, albeit implicitly, well over a hundred years.

The fourth, and constitutionally accepted, understanding is that the clause prohibits certain forms of discrimination by a state against citizens from other states who are sojourning within its borders. This creates a kind of equal protection principle. The Constitution had no clause that prohibited discrimination against (some) individuals overtly as the 14th Amendment’s Equal Protection Clause does today. But there were some clauses that operated through a limited and implied non-discrimination principle. The P&I Clause is one.

The P&I clause does not apply to corporations or other merely “legal” persons. Nor does it apply to aliens. Neither of those limits is significant today, in light of the Court’s expansive reading of the 14th Amendment. The P&I Clause also provides no minimum protections of rights. To the extent the state limits the exercise of rights of its own citizens, it may do so for outsiders coming into the state, at least under this provision. Outsiders have the right not to be treated unfavorably due to their status as visitors, but have no right to be treated more favorably.

Not all rights are protected. The exact definition has always been elusive. The seminal opinion in this area is a circuit court opinion by Justice Bushrod Washington from 1823, Corfield v. Coryell. He wrote: “We have no hesitation in confining these expressions to those privileges and immunities which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments; and which have, at all times, been enjoyed by the citizens of the several states which compose this Union, from the time of their becoming free, independent, and sovereign.”

Such flourishes, while rhetorically satisfying, do not provide concrete guidance. Justice Washington carries on, but does little to penetrate the verbal fog; “What these fundamental principles are, it would perhaps be more tedious than difficult to enumerate. They may, however, be all comprehended under the following general heads: Protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety; subject nevertheless to such restraints as the government may justly prescribe for the general good of the whole.”

He finally delivers himself of some examples of protected rights, privileges, and immunities. “The right of a citizen of one state to pass through, or to reside in any other state, for purposes of trade, agriculture, professional pursuits, or otherwise;…to institute and maintain actions of any kind in the courts of the state; to take, hold and dispose of property, either real or personal; and an exemption from higher taxes or impositions than are paid by the other citizens of the state….These, and many others which might be mentioned, are, strictly speaking, privileges and immunities, and the enjoyment of them by the citizens of each state, in every other state, was manifestly calculated (to use the expressions of the preamble of the corresponding provision in the old articles of confederation) ‘the better to secure and perpetuate mutual friendship and intercourse among the people of the different states of the Union.’”

Such rights, deemed fundamental to the concept of a single nation, do not include the right to hunt game, to fish, or to engage in certain “quasi-public” businesses, such as insurance. Nor does it include a right to vote or to attend college at in-state rates, though, oddly, it includes the right not only to receive welfare payments without residency requirements, but to receive the same level of payment as those who have lived in the state for many years. To curtail even marginally the opportunities of welfare recipients to spend their “down time” in a state with higher benefits than their current domicile by having to meet the new state’s residency requirement is an intolerable burden on the right to travel. To be sure, the Supreme Court’s decisions on the matter rest on uncertain constitutional foundations, that eminent tribunal having referred to Article IV, to the Commerce Clause, to the 14th Amendment’s Equal Protection and (most recently) Privileges or Immunities Clauses as havens for a right to travel. Since states would like these welfare recipients to keep traveling, the Court has also re-characterized the right as “moving to another state.”

The P&I Clause of Article IV apparently was intended as a significant part of the constitutional edifice. With the Supreme Court’s inflation of the 14th Amendment, and Congress’ frequent resort to legislation under the commerce clause, it has become virtually redundant. Still, every decade or so, a case comes along to remind us that there is “still some life left in the carcass.”

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/.

May 4, 2011 – Article III, Section 2, Clause 1 of the United States Constitution – Guest Essayist: Joerg Knipprath, Professor of Law at Southwestern Law School

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Article III, Section 2, Clause 1

1: The judicial Power shall extend to all Cases, in Law and Equity, arising under this 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;10 –between Citizens of different States, –between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

Article III, Section 2 defines the universe of federal jurisdiction (“shall extend to”). The kinds of issues included are defined either by the nature of the cause or the character of the parties. An example of the first is “federal question” jurisdiction, i.e., cases “arising under this Constitution, the laws of the United States and treaties ….” The second might be a dispute “between two or more States.”

This is not necessarily federal court jurisdiction. As some other provisions of the Constitution also underscore, the Framers expected that state courts would be significant, if not the principal, forums for federal jurisdiction. In that vein, the federal courts have never exercised the full federal jurisdiction available under Article III, Section 2. Moreover, unless Congress expressly requires that federal courts exercise exclusive jurisdiction over a matter, state courts have concurrent jurisdiction to hear “federal” issues. Congress rarely imposes such “exclusive” jurisdiction outside bankruptcy, patents, federal taxes, and immigration, and cases involving the United States as a party.

The focus of federal jurisdiction can change. During the early years of the Republic, there were few federal statutes, but much attachment to one’s state, with potential local prejudice against outsiders. Therefore, “diversity” jurisdiction (suits between citizens of different states) was more significant than “federal question” jurisdiction. Today, with the increased homogenization of Americans across states, and the explosion of federal law, the relative importance of the types of jurisdiction is reversed.

Federal courts, then, are courts of limited jurisdiction. The jurisdiction, indeed the very existence, of lower federal courts depends on affirmative grants from Congress. Only the original jurisdiction of the Supreme Court is guaranteed under the Constitution, though academics have argued (and Supreme Court opinions have strongly implied) that the Supreme Court also has the inherent power to review at least those lower court opinions that interpret the Constitution.

Once a federal court is authorized to hear a certain type of issue, it can exercise the full “judicial power,” a somewhat amorphous term that describes what courts “do” (e.g, resolve disputes between parties, issue final relief). However, the judicial power requires “cases” and “controversies.” A “controversy” in this context refers to a civil action or suit. A “case” can be either civil or criminal. The Supreme Court has declared that there is no functional significance from the use of one term or the other in the Constitution.

The “case or controversy” requirement limits the exercise of federal jurisdiction. There must be a concrete matter that involves a “live” dispute between adversaries. About a dozen states, such as Massachusetts, allow designated courts to issue “advisory opinions” on the constitutionality of laws at the request of certain parties, such as the state legislature. This is a common feature in foreign constitutional systems, preeminently the German Constitutional Court, which has emerged as the dominant alternative to the American approach. That system is “centralized” judicial review by a specialized court. The American system is “decentralized” judicial review, as any federal “Article III” court, as well as state courts, can decide constitutional questions. Such American courts also are not specialized, as they decide a host of other legal questions.

In a decentralized system of judicial review, the case or controversy requirement represents an important restraint on the inclination of a vast array of courts to inject themselves into constitutional matters. That said, the judiciary has often found ways to hear cases that appear collusive and to avoid hearing disputes it finds impolitic to decide. Related doctrines, such as the “standing” of a plaintiff to sue (has he suffered a clear enough injury) or the “ripeness” or “mootness” of a dispute (is there yet–or still–enough of a dispute), are very much driven by the facts of the particular case and do not lend themselves to neat and readily-applied tests.

Moreover, the Supreme Court as an institution may expand or contract these doctrines based on the attitudes of the justices towards the role of courts. Thus, the Warren Court greatly expanded the “standing” doctrine and made it easier in a number of ways for litigants to bring their disputes to federal courts. That judicial philosophy changed during the Burger and Rehnquist Courts, beginning in the mid-1970s, as Warren Court-era justices began to be replaced. The latest “standing” cases, decided by the Roberts Court concerning establishment clause claims, continue that trend.

More amorphous and less defined even than standing is the “non-justiciable political questions” doctrine. As early as Marbury v. Madison, the Supreme Court emphasized that there are certain kinds of cases beyond judicial review, even if all other particulars are met that would allow a court to hear the matter. Such cases may involve suits to enjoin the other departments from making discretionary political decisions, or attempts to review decisions by the other branches in military or diplomatic matters.

But the application of the doctrine is unpredictable, as a review of the federal courts’ recent approach regarding executive power in the conduct of the fight against terrorists shows. On the one hand, the Supreme Court injected itself into the executive’s domain by recognizing, for the first time (and implicitly overruling a contrary precedent), a right to habeas corpus for enemy combatant detainees not held in the U.S. On the other hand, the Court has not injected itself in other related matters, such as the admission of former detainees into the U.S. contrary to federal law and executive decision. Lower courts have cited the non-justiciable political questions doctrine to that end.

Article III, Section 2, clause 1, is also a pillar for the legitimacy of constitutional judicial review itself. It authorizes the courts to hear cases arising under the Constitution. Though the clause does not conclusively settle the question whether courts are free to disregard unconstitutional laws or must let the legislature repeal such laws (as some state courts determined), the federal judges early took the position that they are not bound by unconstitutional actions. During the 1790s, federal courts in several cases declared their power to exercise judicial review over state laws. More significant, one can identify four cases in which the Supreme Court explicitly or implicitly assumed a power to review the constitutionality of acts of Congress. All arose before Marbury.

Marbury v. Madison, decided in 1803, is the iconic case for judicial review. It has often been portrayed as revolutionary in that it “established” judicial review. It is more accurate to say that it is a political manifesto that provided a coherent defense of judicial review, but one that had already been made in other venues, such as Hamilton’s Federalist 78.

With one qualification, Chief Justice Marshall’s opinion is very cautious. As his wont was to avoid conflict with Jefferson, Marshall gave the President the specific result the latter wanted. Striking down the federal law was not novel, and the Jeffersonians’ criticism of the opinion was generally not directed at that part. The critics, instead, complained about Marshall’s implicit (and novel) claim that the Court could even issue direct orders to the President, an idea the Chief Justice tried to implement later, with mixed results, in a subpoena to Jefferson during the Burr treason trial.

Marbury, and Article III, also do not resolve whether the Supreme Court is the final arbiter of constitutional decisions. Presidents Jefferson, Jackson, Lincoln, Franklin Roosevelt, among others, asserted a “departmental theory,” that each branch is supreme within its own functions, lest one become “more equal” than the others. Marbury is best seen as a declaration of independence of the judicial branch from the others in a matter that directly involved the courts’ function. Extravagant notions of courts roaming far and wide as “final” or “ultimate” deciders of constitutional matters embody a more recent judicial conceit. While there are practical reasons that the judges’ views are entitled to respect from the other branches and the people, it is a blow against republican principles to declare that the opinions of judges are the Constitution itself.

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/.

April 28, 2011 – Article II, Section 2, Clause 3 of the United States Constitution – Guest Essayist: Joerg Knipprath, Professor of Law at Southwestern Law School

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Article II, Section 2, Clause 3

3: The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

The National Labor Relations Board is a federal agency established under Franklin Roosevelt whose assigned duty it is to protect employees, while balancing the rights of unions and management. In an unprecedented move, it has recently moved to bar Boeing from opening a second aircraft assembly line in South Carolina rather than Washington state. In a second unprecedented move, the agency is about to reverse decades-old policy and allow unions to organize small groups of employees to gain a toehold in the company, rather than the entire company workforce at once (a more difficult project).

The agency currently is dominated by union lawyers, and one of the main advocates for these changes is Craig Becker, a controversial former lawyer for the SEIU, who has written that management should have no say whatever in unionizing activities. After his nomination was rejected by the Senate (on the failure of a cloture vote), President Obama nevertheless appointed Mr. Becker to the board a month later, while the Senate was in recess.

Recess appointments have been practiced since the Constitution went into effect. Initially, Congress was very much a part-time legislature, so there was an obvious need to allow the President to appoint officers to posts that might become vacant while the Senate was not in session. Indeed, that was precisely the early understanding. Vacancies might “happen” (in the terminology of Article II, Section 2, cl. 3) if they arise during the recess.

It may be asked why there is any need for recess appointments now that the Senate meets regularly during the course of the year. Surely, there is no need to have recess appointments just because the Senate is on a brief Easter recess or President’s Day long weekend. Even if the recess is longer, say during the month of August, it is unlikely that the President would even be able to gear up for an appointment until the recess is almost over. In the unlikely event of a government crisis, the Congress almost certainly would reconvene quickly. That said, recess appointments are useful for lower-level appointments on which the Senate has failed to act for some time. Moreover, they can protect the President’s constitutional prerogatives, if the Senate purposely seeks to weaken the President by failing to act on his nominations made while the Senate is in session.

Presidents have long interpreted the clause to give them a writ to make recess appointments for vacancies as long as those vacancies exist during the recess, even if they arose earlier. This interpretation has been upheld judicially. But even though it may be constitutionally justifiable, it raises serious political issues. Presidential appointments for vacancies that arise while the Senate is in session, but are not filled until the President can do so unilaterally when the Senate is in recess are delicate matters. Such appointments can easily be seen as end-runs around the constitutional blending and overlapping of functions.

Now add to that if the recess appointment is of an individual who was previously rejected by the Senate. The politics of such a move clearly invite Senatorial rebuke, and President Obama’s appointment of Craig Becker was lambasted by a number of Republican Senators.

As early as 1863, Congress tried to rein in recess appointments, by prohibiting payment of salary to anyone appointed during the Senate’s recess, until the Senate confirms. Today, the Pay Act, 5 U.S.C. 5503, prohibits such payments only if the vacancy already existed while the Senate was in session. The act also provides certain exceptions. For example, it does not restrict salaries of recess appointees if the nomination was pending when the Senate recessed. Neither does the salary restriction apply if the Senate, within 30 days before the end of a session, rejected a nominee of the President to the office. However, that exception, in turn, does not apply if the President during the recess appoints the rejected nominee. It should be noted that the end of a “session” is the end of the annual term. Thus, when Congress adjourns this December, it will be the end of the first session of the 112th Congress. Merely rejecting a nominee before a holiday recess is not the end of a session.

One wonders, therefore, whether President Obama’s NLRB man, Craig Becker, is entitled to payment of salary. One argument he might make is that the nomination technically was not formally rejected because it was filibustered and never came up for a vote on the merits. Since it was not withdrawn, the nomination technically was still pending when the recess occurred.

By statute, if a recess appointment is made, the appointee’s name must be submitted to the Senate soon after its next session begins. President Obama has done so with Mr. Becker. If the appointment is not confirmed, the officer may continue to serve, but must step down at the end of that next session. Thus, Mr. Becker’s term will end in December of this year, as he was appointed by the President in March, 2010. If Mr. Becker is rejected, he will not be permitted to draw a salary, if a routine provision to that effect in funding bills continues to be used.

Finally, the political virtuosity of the recess appointment device is shown by the fact that, even if the Senate rejects Mr. Becker, there will be new vacancies on the NLRB, and the President can wait for the next recess to appoint his ideological fellow to the agency once more. Mr. Becker could then serve until the end of 2012, again without Senate confirmation.

Unlike appointments to administrative or executive positions, recess appointments of judges are uncommon. Bill Clinton made one; George W. Bush made two; Barack Obama has made none so far. No President has made a recess appointment to the Supreme Court since Dwight Eisenhower, who appointed Chief Justice Warren, Justice Brennan, and Justice Stewart in that manner.

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/.

April 25, 2011 – Article II, Section 1, Clause 8 of the United States Constitution – Guest Essayist: Joerg Knipprath, Professor of Law at Southwestern Law School

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Article II, Section 1, Clause 8

8: Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:–“I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.”

When a new duke was installed in the old Republic of Venice, he took a prescribed oath of office that included a list of limitations on his power. Just in case his memory conveniently weakened as his fondness for office grew, the oath and its limitations were read to him in a formal ceremony every two months. Remembering the horrified reaction in some quarters in Congress when the new leadership read the Constitution at just the opening of this session, one is inclined to believe the Venetians were on to something.

Although the Constitution requires other officials to take an oath of office, the President’s is the only one expressly prescribed. One question that arose is whether the oath is a precondition to the assumption of office. George Washington took office March 4, 1792, yet did not take the oath until April 30 of that year. Similarly, the practice of the British constitution, with which the Framers were intimately familiar, was that the coronation oath might not be administered until some time after the heir’s succession to the vacant throne. The President assumes his office when the constitutionally-designated day, January 20, arrives. However, before the President can execute the functions of his office, he must take the oath. Under the current practice of inauguration (which increasingly does resemble a coronation) and the demands of office, the matter has ceased to have practical significance.

Of more continuing relevance is the question of the scope of independent power the oath gives the President. Just as the effectiveness of the periodic recitation of the Venetian oath on restraining executive excess depended largely on the confluence of political events and the duke’s personality, the use of the oath as a source of executive power by the President has been similarly shaped. President Lincoln cited his duty to “preserve, protect, and defend” the Constitution as ample authority for his initial steps to combat organized secession, though he sometimes also referred to the three other sources of broad implied executive powers, the “executive power” clause, the commander-in-chief clause, and the clause that requires him to “take care that the laws be faithfully executed.” In a defense of his actions made to Congress in July, 1861, Lincoln declared that he was acting under his oath to “preserve the Constitution” and the Union, when he called forth the militia to suppress the rebellion, proclaimed a blockade of Southern ports (an act of war), directed large increases of the Army and Navy, ordered $2 million (yes, that was a lot of money then) of unappropriated funds paid out of the Treasury, pledged the unprecedented and astronomical sum of $250 million of the government’s credit, and ordered the military detention and suspension of the writ of habeas corpus for those engaged in or “contemplating” “treasonable practices.”

Laying aside the emergency of the Civil War, the oath has been used by Presidents in more pedestrian ways to assert independent authority. The issue has come up in disputes between the Supreme Court and the President, and the Congress and the President. Early in our history, the “departmental theory” of judicial review dominated. That theory held that each branch was the final and independent interpreter of the powers entrusted to it under the Constitution. Jefferson wrote in 1801 that each of the branches of the federal government “must have a right in cases which arise within the line of its proper functions, where, equally with the others, it acts in the last resort and without appeal, to decide on the validity of an act according to its own judgment, and uncontrolled by the opinions of any other department.” Chief Justice Marshall in the Marbury Case used the oath he took as providing constitutional legitimacy for judicial review.

Madison echoed Jefferson. So did Andrew Jackson, Abraham Lincoln, Franklin Roosevelt, and others. The attorneys representing President Andrew Johnson during his Senate trial in 1868 on impeachment charges relied on the President’s independent constitutional position, validated by his oath of office, to defy the Tenure of Office Act of 1867. Johnson claimed that the act, adopted over his veto, deprived him of his constitutional powers to remove executive department officers by requiring him to obtain Senatorial consent before firing Secretary of War Edwin Stanton.

The issue continues to resonate. The President’s first duty, as so many incumbents have argued, is to the Constitution as the Supreme Law. Moreover, the President is an independent actor in that regard. Hence, the President can veto a bill from Congress if he believes it to be unconstitutional, even if the Congress and an existing Supreme Court precedent point to its constitutionality. Questions of greater constitutional difficulty and shadowiness arise about Presidential signing statements and the President’s refusal to enforce a law that has been duly enacted, the latter of which also implicates the President’s Article II duty of faithful execution of the laws.

Both issues are live political matters. Just as his predecessors did, President Obama has resorted to the very signing statements whose use by George W. Bush he vocally decried. The latest is a statement that he would continue to employ “czars” (presidential policy directors not subject to Senatorial confirmation) despite the fact that the budget he was signing after the deal reached with Congress prohibited funding for 4 such officials (out of 39). The President has claimed that the budget restriction violates his constitutional authority. Such statements are not given legal significance by the courts when interpreting the constitutionality of a statute, in part because they tend to be rather vague and thin on constitutional analysis. But they certainly are a measure of the President’s willingness to claim that his constitutional powers are not subject to Congressional limitation. At the same time, the statute is now the law of the land, and the President’s proper choice should have been to veto the bill, not to refuse to enforce parts, in effect signing a bill into law that was not the same as presented to him.

Not enforcing an already-existing and properly enacted law is the most troubling. For instance, the Obama administration has announced that it will not defend the constitutionality of the federal Defense of Marriage Act (DOMA), because the President believes the law to be unconstitutional. Yet, the law was adopted by a Congress and signed by a President (Bill Clinton) who must have believed the law to be constitutional. Moreover, there is no Supreme Court opinion that the law is unconstitutional, and there has been no great change in social conditions or political composition of the voters. While a President’s oath to support the Constitution gives him some leeway in administering law, and while a predecessor’s acts cannot inflexibly bind a President, in this matter the President’s position is at odds with the actions of Congress and two Presidents, of different parties. There is a tension between the President’s claim that the oath directs his first duty to the Constitution, and the Constitution’s own command that he faithfully enforce the laws.

These issues are not easily resolved. It is clear, however, that the oath is far more than mere formality. History has shown it to be another factor in the Constitution’s separation of powers and blending and overlapping of functions, swirling in the murky vortex where constitutional law and politics lose their distinctness.

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/.

April 18, 2011 – Article II, Section 1, Clause 3 of the United States Constitution – Guest Essayist: Joerg Knipprath, Professor of Law at Southwestern Law School

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Article II, Section 1, Clause 3

3:  The Electors shall meet in their respective States, and vote by Ballot for two persons, of whom one at least shall not lie an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like Manner chuse the President. But in chusing the President, the Votes shall be taken by States, the Representation from each State having one Vote; a quorum for this Purpose shall consist of a Member or Members from two-thirds of the States, and a Majority of all the States shall be necessary to a Choice. In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President. But if there should remain two or more who have equal Votes, the Senate shall chuse from them by Ballot the Vice-President.

When determining the mode for selecting the President, the Framers were faced with a conundrum.  The President was to be a leader who could act with energy and dispatch.  Yet he was to maintain his constitutional pedigree as a republican, and he must exercise wisdom and judgment.  It was hoped that the President would be, as Henry Lee said in his eulogy of George Washington, “first in war, first in peace, and first in the hearts of his countrymen.”  But the president was not to gain that position as an American Caesar, a man whose immense talents and genius also proved to be fatal to that ancient republic that Revolutionary War-era Americans so admired.

Perhaps even worse, because so much more likely in the ordinary case, would be the man who, lacking the genius of a Caesar, would gain office through “talents for low intrigue, and the little arts of popularity,” as Hamilton sneered in Federalist 68.  To Americans of the time, “popular” suggested a certain cravenness and lack of principle.  Such a person would do what advanced his political standing, rather than what was best for the country.  As Plato long ago warned in his description of the demagogue (Greek for “leader of the people”), this was a particular flaw of democracy.  Such a man was most likely to emerge in a system that placed no electoral barrier between the mass of the people and him.

Hamilton’s response during the Philadelphia Convention was a complex multi-layered proposal of election by electors selected by regional electors themselves elected by some class of voters.  Such a convoluted system resembles an electoral Rube Goldberg-contraption. However, the historically well-read Framers had the experience of other republics from which to draw, and Hamilton’s system was a simplified (if that can be imagined) variant of the election of the Doge of Venice.  A system of electors avoids the democratic pitfalls of election of unqualified flatterers by a people corrupted by promises of favors or bedazzled by a façade of handsome features and soaring, but empty, rhetoric.  But, without more, election by a council of the few does not avoid the oligarchic pitfalls and factionalism inherent in any cohesive and organized group, characteristics Madison warned against in The Federalist.  Hamilton’s proposal would increase the number of participants and disperse their decisions.  This made it more difficult for a candidate to gain office by corruption and intrigue through a small and cohesive faction.

The Framers did not go along with the particulars of Hamilton’s proposal.  But, after making the easy call against direct popular election and rejecting, as well, election by Congress or by the state legislatures, they settled on a system similar to the one proposed by Hamilton. In the process, they resolved 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. In effect, the Electoral College would nominate the candidates.  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.  The winner of the House vote would be President, the runner-up would be Vice-President.

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.

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 an immediate 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.

Hamilton and others assured Americans that corruption and the influence of faction would be 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 would meet in separate states at the same time rather than in one grand national body. 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.

The system never quite worked as intended.  After Washington’s election, the nomination of Presidents was informally taken over by factions in Congress, in a process dubbed the Congressional caucus system.  That system immediately caused the untenable situation of a President (Adams) and a Vice-President (Jefferson) from opposing factions.  The debacle of the House-controlled election of 1800 brought about by the intra-factional rivalry of Jefferson and Burr placed the young American experiment in self-government in mortal danger. That, in turn, brought limited reform through the 12th Amendment.

Though the constitutional shell remains, much of the system operates differently than the Framers thought. 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 (political groups that focus on a particular issue or coalesce around a charismatic leader) 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.

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/ .

April 11, 2011 – Article I, Section 10, Clause 1 of the United States Constitution – Guest Essayist: Joerg Knipprath, Professor of Law at Southwestern Law School

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Article 1, Section 10, Clause 1

1:  No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.

What if a state, laboring under a significant budget deficit, decided to repudiate its general obligation bonds?  What if that state, further, enacted an increase in the income tax, retroactive to the beginning of the year?  Would Article I, Section 10, clause 1 permit such actions?

The first part of that clause, along with clause 3 of the section, restricts the states to only a very limited capacity at international law, and states may exercise even that residue only with permission of Congress.  The Articles of Confederation restricted these powers already, as the exercise of them by the states would undermine national sovereignty.  The new Constitution simply tightened them and made them more concise, in recognition of the fact that these restrictions were an integral part of the establishment of a stronger Union.

The second part of that clause, dealing with money, bills of credit, and gold and silver as legal tender, addressed the pestilence of paper money issued by the states.  Many of the Framers saw this as a particular problem that contributed to the insecurity of property in various states and the economic turbulence that, in turn, produced political turbulence and threatened the republican experiment.  It had been the practice even of colonial assemblies to fund the costs of military campaigns by quasi-confiscatory practices of issuing bills of credit (paper money on the credit of the colony) to merchants and suppliers of war materiel.  After the war, those bills of credit rapidly depreciated, as the colonists declined to vote the taxes necessary to pay them.  Once the bills reached a sufficiently low level, they could be taxed out of existence relatively painlessly.

It was hardly surprising, then, that the states (and the Continental Congress) would resort to that same hoary practice on declaring independence.  By war’s end, Congress had issued $226 million in bills of credit, for which it had received $45 million in goods and services, as Americans increasingly took into account this species of public finance fraud.  However, the paper currency itself had depreciated essentially to nothing, a massive (and conscious) expropriation of private property by inflation, engineered by a body that lacked the formal constitutional powers to do so.  “Not worth a Continental” was not a metaphor.  Benjamin Franklin defended this confiscatory practice as an equitable form of taxation as these bills were held more by the upper-middle and upper segments of society than by the poor.  John Adams dismissed critics of the devaluation with a curt, “The public has its rights as well as individuals.”  In the end, Congress never redeemed the paper currency.

If the Congress was bad, in some ways the states were worse.  Not only were there problems with the emission of bills of credit (though that was less significant than for Congress), but with other, broader confiscatory and debt cancellation laws.  To the extent that such laws injured the interests of Loyalists and British creditors, they violated the peace treaty with Great Britain and threatened to reignite the war.  To the extent they hit their own citizens, the states were flirting with class warfare.  At best, even in the absence of a specter of violence, state politics circled around the vortex of the depreciated bills, as holders, speculators, and debtors (who were not always different persons) jockeyed for political and economic advantage.  This contributed to the instability of state politics and prevented establishing a basis for long-term social peace and material prosperity.

Historians, including conservatives such as Forrest McDonald, indict this period after independence for making Americans less secure in their property rights than they had been under King George.  To an increasing number of Americans, especially younger figures such as Hamilton and Madison who were not as tied to the “revolutionary spirit,” the reason was that “governments were now committing unprecedented excesses, even though–or precisely because–governments now derived their powers from compacts amongst the people.”  The period was a vivid illustration that democratic self-rule does not, without more, set a society on the path to the security of property and long-term well-being.  Even more alarming was the fact that those same state governments were acting under constitutions that nominally protected individuals’ liberty and property from just such majoritarian muggings.

It is no wonder then, that many of those who gathered at the convention in Philadelphia, viewed the levelling tendencies of such fiscal and redistributionist laws with consternation and as evidence of the irresponsibility of popular majorities.  There was no opposition to the portions of Article I, Section 10, that negated the states’ abilities to coin money, issue paper currency, or make anything but gold and silver legal tender.  Some delegates wanted that prohibition extended to Congress, but the majority demurred.  The need for paper money during emergencies, combined with the Madisonian faith that a more effective balance between debtor and creditor interests would produce better political checks against excesses at the national level than within the states, gave the majority pause about tying the hands of Congress.

In hindsight, both sides can claim vindication.  Certainly, the issuance of fiat money during the Civil War helped the Union’s war effort.  On the other hand, the flood of trillions of dollars sloshing around today during peacetime can easily become a tsunami that destroys the economic well-being of large numbers of Americans.  And, contrary to Franklin, devaluation and inflation typically hit the lower and middle classes more than it does the wealthy.  Inflation is a brutally regressive tax.

One tool of the Framers was to ban retrospective laws.  The first was the prohibition on ex post facto laws, one that also applied to the national government under Article I, Section 9.  Apparently many of the Convention (including Madison) thought that ex post facto laws covered all retrospective laws.  This produced a moment that demonstrates that the Framers were ordinary humans, finding their way through the constitutional fog, not infallible divine creators.  The day after the vote, John Dickinson sheepishly announced that he had looked up “ex post facto” in Blackstone and found (correctly) that this only prohibited retroactive criminal laws.

Similarly, bills of attainder (legislative decrees of punishment of individuals used expansively during the English Civil War, but not unknown even in the newly-independent states) were prohibited for the states and the national government, primarily because of their retroactive application to acts already committed.  Bills of attainder and ex post facto laws were viewed as such outrageous infringements of liberty that they were denounced as contrary to the protections of the social contract and the very nature of a republican government of free men.

But that still left the issue of retrospective civil laws.  The contract clause of Article I apparently was the vehicle to deal with the vexatious laws that, in tandem with the paper currency policies, cancelled debts or otherwise interfered with existing contracts.  Although the origin of the clause is obscure, it is similar to one found in the Northwest Ordinance of 1787, passed by the Confederation Congress.  The author at the Convention probably was Hamilton, who, after his personal experience with Pennsylvania’s capricious revocation of the charter of the Bank of North America, also saw the potential of the clause to protect banks and other corporations from state harassment.

The contracts clause was an early vehicle for the Supreme Court to promote the rule of law and the stability of rights in property.  Chief Justice Marshall, in particular, read the clause broadly to protect individual rights in contracts.  Indeed, his interpretation went so far as to prevent the states from interfering with the obligations of contracts even prospectively, a view that was probably beyond that envisioned by the Framers and which led to Marshall’s only dissent in a constitutional case in 34 years on the Court.

Much has changed since then.  Today, the Supreme Court has reinterpreted the categorical language of the clause to prohibit only laws “unreasonably” impairing the obligation of contracts.  This has effectively eviscerated the clause’s protections against most state laws that interfere with purely private contractual relations, even those that are retrospective.  States, and the federal government (to which the contracts clause does not apply directly), are relatively free to force creditors to revise terms of existing debt instruments, such as mortgages) when debtor interests gain enough political traction.

Neither of our hypothetical state laws would be unconstitutional under the ex post facto clause, as they do not deal with crimes.  There being no “contract,” the only limitation on the retroactive tax increase would be vague notions of “notice” to the taxpayers under the due process clause of the 14th Amendment.  The repudiation of state bonds would be a closer case, and states well may run into difficulties under the contracts clause if they were to try to repudiate their bonds (or to curtail vested public employee pensions).

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/ .

April 5, 2011 – Article I, Section 09, Clause 2-3 of the United States Constitution – Guest Essayist: Joerg Knipprath, Professor of Law at Southwestern Law School

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Article 1, Section 9, Clause 2 and 3

2:  The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.  3:  No Bill of Attainder or ex post facto Law shall be passed.

The Great Writ.  The writ of habeas corpus, protected in Article I, Section 9, clause 2, is often regarded as the cornerstone of the rule of law in Anglo-American jurisprudence.  Alexander Hamilton, writing in Federalist 84, approvingly quotes Blackstone that habeas corpus is the “ bulwark of the British constitution,” in that it prevents the “dangerous engine of arbitrary government” that comes from “confinement of the person, by secretly hurrying him to jail, where his sufferings are unknown or forgotten.”

Some historians trace the writ back to Magna Charta, although more definitive evidence shows a gradual emergence under the common law, culminating in the Habeas Corpus Act of 1679, during the reign of Charles II.  As Hamilton’s comment shows, the Framers were well aware of the writ.  Note that the Constitution does not “create” the writ; rather, Article I, Section 9, assumes the existence of the writ, but provides for its limited suspension.

Congress early confirmed the federal courts’ jurisdiction to issue the writ in the Judiciary Act of 1789, though the scope of the jurisdiction has changed over time.  It is even plausible, though not without doubt in light of 19th century precedent, that the power to issue writs of habeas corpus is so tied to the essential role of the federal courts that they could issue writs of habeas corpus even if Congress had not affirmatively recognized that power.

The writ is commonly said to be an instrument only to test the constitutionality of the detention, not to adjudicate the guilt or innocence of a detainee.  In other words, it is not the same as a right to appeal a conviction, but a “collateral attack” on the right of the government to detain the prisoner at all.  In some fashion, though, habeas corpus is broader than an appeal.  Rights of appeal are usually limited in time.  Petitions for habeas corpus traditionally were not so limited and could be brought repeatedly, years after trial.

There are two areas where the use of habeas corpus has become controversial in the last few decades.  One is the use of federal courts to challenge state criminal proceedings, especially in death penalty cases.  The other is the applicability of the writ to detainees in military custody.

As to state criminal proceedings, the problem began with the Supreme Court’s “incorporation” into the 14th Amendment of criminal procedure protections in the Bill of Rights.  This process, principally during the Warren Court, extended the federal courts’ supervisory powers over state court proceedings.  Justice Frankfurter as early as 1953 warned of the writ’s “possibilities for evil as well as good,” in light of the roughly 400 to 500 habeas petitions brought in federal court by persons in state custody.  By the end of the Warren Court, that number increased to 12,000 per year.  It continued to climb until the Rehnquist Court in the 1990s began to stem the deluge.

Today, habeas petitions are still a favorite pastime of “jailhouse lawyers,” as well as of attorneys who represent inmates with various complaints, from prison overcrowding or medical care to more individualized concerns about ineffective assistance of counsel in capital cases.  But federal laws and Supreme Court decisions now require petitioners to meet stiffer tests for such collateral review.  In part these restrictions have been justified by the perceived greater due process protections in state criminal proceedings compared to 50 years ago.  In part it is the conscious institutional desire of the Rehnquist and Roberts Court majorities to shift more business out of the federal courts into the state courts.  It is the latter, after all, who are the courts of “general jurisdiction” in our federal system.  In part it is simply the federal judges’ impatience with the sheer volume of repeated and frivolous petitions.  Even before the floodgates opened, only a very small percentage (6%) of petitions were found to have merit.  As so frequently happens, the increase in quantity over the years led to a further decrease in quality.

Regarding jurisdiction over people detained by the military, the writ has a checkered past.  Early in the Civil War, President Lincoln suspended the writ in a portion of Maryland (a de facto imposition of martial law).  In 1861, Chief Justice Taney issued the writ to the military jailer of a Maryland secessionist arrested for destroying railroad bridges.  When the military commander ignored the writ, the Chief Justice, in Ex parte Merryman, denounced Lincoln’s action, arguing that Article I, Section 9, dealt with limitations on Congress’s powers.  Therefore, only Congress could suspend the writ.

In classic implied executive powers fashion, Lincoln responded that the Constitution did not specify which branch could suspend the writ, only the conditions under which it could be suspended.  Moreover, the President could act due to the emergency involved.  Both Lincoln and his attorney general, Edward Bates, declared that the judiciary was incapable of dealing adequately with organized rebellion.  Bates, in his more detailed opinion, pointedly reminded the Court that the executive was not subordinate to the judiciary, but one of three coordinate branches of government.  The President took an oath to “preserve, protect, and defend the Constitution,” Bates asserted, and the courts were too weak to accomplish that task.

In 2008, the Supreme Court decided Boumediene v. Bush.  There, Justice Kennedy, in a 5-4 opinion, declared portions of the Military Commissions Act of 2006 unconstitutional, most significantly the portion that denied habeas corpus review to Guantanamo detainees.  Aside from a host of constitutional and practical problems with the Court’s opinion, particularly troubling was the Court’s extension of the writ to people outside the sovereignty of the U.S.  To do so, the Court had to distort the traditional Anglo-American understanding that the writ applied only within the nation’s territory.

While the writ has long applied to procedures of military courts, the Court previously made clear that it did not apply to acts of such courts outside the U.S.  Thus, in Johnson v. Eisentrager in 1950, the Court, speaking through Justice Jackson, rejected a habeas petition from German prisoners who had been convicted of war crimes by an American military commission and were held at an American military prison in the American occupation zone in postwar Germany.  The Eisentrager Court found “no instance where a court, in this or any other country where the writ is known, has issued it on behalf of an alien enemy, who, at no relevant time and in no stage of his captivity, has been within its territorial jurisdiction.”

Where Justice Jackson and others feared to tread, Justice Kennedy rushed in.  As Justice Scalia wrote in dissent in Boumediene, what drove the Court’s opinion was “neither the meaning of the Suspension Clause, nor the principles of our precedents, but rather an inflated sense of judicial supremacy.”  Precisely the attitude that President Lincoln and Attorney General Bates had emphatically rejected in their response to Chief Justice Taney.

Whether the Boumediene opinion has precedential virility, or whether it is merely judicial posturing, remains to be seen.  Justice Scalia feared that it is likely to be the former.  Early indications from the circuit courts suggest the latter.  Those courts have read Boumediene narrowly as applying only to Guantanamo, not, for example, to detainees at Bagram Air Base in Afghanistan.  If that interpretation prevails before the Supreme Court, Boumediene is mere institutional chest-beating.  More troubling, in the long run, is the possibility that Justice Scalia’s concerns are well-founded, and that the Court’s use of habeas corpus in Boumediene is part of the expanding notion of “lawfare” that threatens to tie down the President’s commander-in-chief powers through a web of legal regulations and procedures, an American military Gulliver tied down by legal Lilliputians.

As Justice Frankfurter warned, the writ has “possibilities for evil as well as good.”

Note: Professor Knipprath will address Article I, Section 9, Clause 3 of the United States Constitution in his upcoming essay on: Article 1, Section 10, Clause 1, Scheduled for publication on April 11: 1:  No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility. 

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/ .

April 1, 2011 – Article I, Section 08, Clause 18 of the United States Constitution – Guest Essayist: Joerg Knipprath, Professor of Law at Southwestern Law School

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Article 1, Section 8, Clause 18

18:  To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

In a letter to Edward Livingston in 1800, Thomas Jefferson addressed the potential of infinite expansion of national power through the “necessary and proper clause” (Article I, Section 8, clause 18) after Congress chartered a mining company.  Jefferson derided the exercise by comparing the constitutional claims of the law’s supporters to a popular nursery rhyme:

“Congress are authorized to defend the nation. Ships are necessary for defense; copper is necessary for ships; mines, necessary for copper; a company necessary to work the mines; and who can doubt this reasoning who has ever played at ‘This is the House that Jack Built’? Under such a process of filiation of necessities the sweeping clause makes clean work..”

Who can doubt this, indeed?  Especially when, just last year, in U.S. v. Comstock, Justice Breyer led the Supreme Court in finding that the necessary and proper clause permits the national government to remit into federal civil commitment persons deemed to be sexually dangerous, even though the federal government could no longer hold them on a federal criminal charge. After applying one of the malleable multi-factor balancing tests he so favors, Justice Breyer determined that the necessary and proper clause permits Congress to enact laws that criminalize conduct that threatens the beneficial exercise of its enumerated powers; and that, therefore, Congress can imprison those who engage in that conduct; and that, therefore, Congress can pass laws to govern those prisons; and that, therefore, Congress can act as custodian of its prisoners; and that, therefore, Congress can pass a law that allows the federal government to keep those former prisoners “to protect the public from dangers created by the federal criminal justice and prison systems.” Besides, Breyer averred, the new law was only a “modest expansion” of Congress’s power.  Indeed.  Were he alive, Jefferson would recognize the game.

The necessary and proper clause is the Constitution’s version of the “implied powers” theory.  Congress is the American people’s legislative agent.  As such, the people gave Congress certain objectives to achieve.  It is a basic principle of agency law that the agent has not only the powers expressly assigned by the principal but, by implication, also those powers necessary to carry them out.  But there is no need for application of “implied powers” because the people, as Congress’s principal, themselves provided the means to carry out Congress’s assigned objectives.  The necessary and proper clause specifies that Congress has the power to make laws “necessary and proper for carrying into execution” the powers conferred by the Constitution on the federal government.

The clause has long been hotly debated.  Opponents of the Constitution, especially New York’s Robert Yates (“Brutus”), repeatedly warned of the dangers from an expansive interpretation of “necessary and proper.” They predicted that an unrestrained power to accomplish formally limited powers itself effectively created an unlimited power to legislate through pretext.  Madison, responding to Yates in Federalist 44, sought to tie the clause to the other powers in a luke-warm argument that made the clause sound like the least worst alternative the Framers faced.  Moreover, he attempted to narrow the meaning of the clause to those means that were “indispensably necessary” and “required.” Ultimately, however, Madison threw up his hands, effectively conceded the argument about the dangers, but urged the people to remain alert to usurpations by Congress.

The Supreme Court weighed in with McCulloch v. Maryland in 1819.  Chief Justice Marshall rejected the restrictive interpretation of “necessary” urged by the old anti-Federalist warhorse, Maryland’s wily attorney general Luther Martin.  Martin’s interpretation had support both in the dictionary meaning of the word at the time and Madison’s slips-of-the-pen in Federalist 44.  Although this decision is correctly read as providing the constitutional material for the 20th century’s “Big Bang” expansion of federal power, Marshall apparently believed he was much more restrained and cautious.  He even took the unprecedented step of defending that view in a pseudonymous battle of editorials in the Richmond papers with Virginia’s chief justice, his cousin Spencer Roane.  Marshall insisted that, while the reading of “necessary” was to accommodate the needs of the times, the clause had to be tied to the other enumerated powers.  Any such law had to comply with both the letter and the spirit of the Constitution.  It was not enough that Congress could somehow connect a law to the form of one of its other powers.  Pretextual uses of the necessary and proper, or any other clause, would be unconstitutional.

In his almost flawless dissent in Comstock, Justice Thomas takes Justice Breyer to task for abandoning the Constitution’s text and Chief Justice Marshall’s boundaries.  Thomas points out that the Comstock majority makes no attempt to show that the law itself directly carries into effect any enumerated power of Congress.  At best, it does so through an attenuated chain, exactly as Jefferson criticized in his letter to Livingston.  The only objective that the Comstock Court mentions that the law directly advances is “to protect the public from dangers created by the federal criminal justice and prison systems.”  And that is not an enumerated power.

The necessary and proper clause is not an isolated provision.  It is part of the delicate balance of national and state powers the Framers established in the American version of federalism.  That balance is made concrete in several other provisions, beginning with Article I, Section 1, which declares that “All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representative.”  That premise, along with the very fact of a limited enumeration of Congressional powers, is evidence that the letter, and certainly, the spirit of the Constitution argue against so expansive an interpretation of the necessary and proper clause that Congress is given an unrestricted power to legislate through a constitutional back door.

The Court’s expansive and unfounded reading of necessary and proper reflects the dominant Washington credo. One has heard over and over from certain partisans in the debate over the current administration’s programs that Congress has the power to do whatever it wants and that the Constitution has no part to play in the debate. Indeed, judging by the distaste, indeed hostility, shown by some Congressmen to the reading of the Constitution in that chamber at the opening of the current session, raising constitutional questions about Congress’ actions may represent some novel mutation of hate speech. Of course, indicting the Constitution (especially its formal restraints on legislative power) as an obstacle to “social advancement” is not new. Then-professor Woodrow Wilson and similarly-inclined academics charged that central tenet of Progressivism a century ago. How little has changed in the progressive world-view.

At the same time, it is undeniable that, over the years, the doctrine of enumerated powers has suffered severe erosion, an erosion that could not have occurred over so long without the tacit complicity of the American people. They have not been alert to Congressional usurpations, as Madison urged. It is inevitable, as people intuit, and as writers from Plato to Machiavelli to Yates and Madison have explained, rulers seek first to maintain and then to expand their power. Over time, there occurs an institutional accretion of power at the expense of personal liberty, as each precedent gives rise to an incremental expansion. Again, the contest over ObamaCare now playing out in the federal courts is the latest (and perhaps final) step in the enfeeblement of the doctrine.

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/ .

March 21, 2011 – Article I, Section 08, Clause 02 of the United States Constitution – Guest Essayist: Joerg Knipprath, Professor of Law at Southwestern Law School

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Article 1, Section 8, Clause 2

2:  To borrow Money on the credit of the United States;

Article I, Section 8, clause 2, confers on Congress the power to borrow money on the credit of the United States.  Borrowing is simply a means of raising revenue. One can glimpse the importance and ubiquity of this tool of public finance by the fact that the framers placed it as the second power granted to the new Congress.  Right after the powers to tax and spend. Those powers, along with the coining of money and punishing counterfeiting, constitute the federal revenue powers.

Borrowing on the credit of the United States was of vital concern during the Founding Era.  The difficulty that the U.S. had to finance the Revolutionary War impressed men such as Alexander Hamilton and his mentor in financial matters, Robert Morris.  It was the eventual success of John Adams and others in convincing the Dutch bankers to loosen their purse strings that opened access for Americans to international financial markets and contributed much to independence. Hamilton’s experience is reflected in Federalist 30, where he explains the importance of public credit to finance emergencies such as wars, and the connection between taxes (and, more broadly, responsible fiscal policies) and creditworthiness.

After the war, the economic plight of the United States worsened.  The war debts of the states and the United States posed a long-term threat to the country’s economic health. That condition, many feared, would inevitably turn into a political threat to the republican systems in the states and to the Confederation.  The fiscal and monetary policies of the states exacerbated the situation, as, in the words of James Madison’s in Federalist 10, a “rage for paper money, for an abolition of debts, for an equal division of property [and] for other improper [and] wicked projects” set in.  During the debates on the Constitution, Rhode Island was often (and not always entirely fairly) set up as a paradigm of bad economic policies run amok.  That is what happens when a state declines to show up for the debate, as Rhode Island opted to do.

But the problem was national and systemic, with the country locked in an apparent long-term cycle, or perhaps a spiral, of economic woe.  One problem, in the eyes of many, was the absence of banks.  The British had strongly disabled the formation of banks in the colonies, correctly seeing them as potential threats to British dominance. During the war, the Confederation’s Superintendent of Finance, Robert Morris, at the instigation of Alexander Hamilton, obtained a charter for the Bank of North America, an American prototype private national bank loosely patterned after the Bank of England.  The charter was immediately suspect, since the Articles of Confederation did not allow Congress to charter banks or other corporations.  As a precaution, the Bank eventually also obtained a state charter from Pennsylvania, a step that soon confirmed to Hamilton and other nationalists the folly of state control over public finance. The legislature of Pennsylvania, taking the position that it could, with impunity, take away vested property rights confirmed by a predecessor legislature, revoked the charter in 1785.

Though these constitutional weaknesses and political currents eventually caused the Bank of North America to fail as a national bank, the pattern was set. Indeed, Morris and Hamilton in their arguments to the Confederation Congress developed the constitutional arguments in favor of implied national powers that Hamilton would repeat in his push for the Bank of the United States in 1791, arguments the Supreme Court adopted in its landmark decision in McCulloch v. Maryland in 1819.

In the same vein, the economic and political arguments in favor of (and against) the Bank of North America would resonate in the political debates over the Bank of the United States and its successor until Andrew Jackson’s veto of the re-charter of the Second Bank of the United States in 1832.  Those same arguments would be repeated in the debate over the establishment of the Federal Reserve system and continue today.

While the Federal Reserve remains controversial in many quarters, the original Hamiltonian program probably saved the Republic.  Through the complex system Hamilton advanced as Secretary of the Treasury, the infirmities of the public debts of the United States and the states were eliminated by guaranteeing creditors payment on their previously depreciated securities.  A crucial step to restore confidence was to have the United States assume the war debts of the states.  The debt repayment was financed in part through an excise tax on whiskey that, while unpopular in certain quarters, was generally supported by the public.  The Bank of the United States was the final piece in Hamilton’s mosaic and would serve as a depository for government funds.  The use of those funds as well as the profit from private loans to other (state-chartered) banks and to large commercial borrowers would provide a return on their investment to private investors and to the government.  The latter could use those profits to help repay the war debts and to furnish internal public infrastructure improvements (later reflected in Henry Clay’s “American system”).  More significantly for the stability of public credit and the money supply was that the Bank could control the terms of credit it extended to borrowers. By selecting the interest rates for loans and having the option to demand repayment of loans in specie, it could temper the enthusiasm that state banks otherwise might have to overextend themselves through the issuance of bills of credit (paper bank notes).

As a result, the U.S. almost overnight gained access to the Amsterdam financial markets and, hence, to the world. Foreign capital flowed into the United States to help develop manufactures and commerce and put the United States on the road to a modern economy and prosperity.  Hamilton was not naive.  Despite what some of the agrarian anti-Bank theorists, such as Virginia’s Senator John Taylor of Caroline (a man who considered Jefferson and Madison sell-outs of the republican cause), claimed, neither the Bank nor Hamilton was bent on destroying American liberty.  Hamilton feared a government-controlled bank, but thought that the private control of the bank would keep corrupt political forces at bay.  Similarly, public and private tendencies towards credit bubbles would be constrained by two things.  First, the interests of investors and directors in safety as well as profits would make them sufficiently conservative. Second, he proposed that repayment of long-term public debt be immediately secured through a commitment of designated revenue to pay interest and principal (“sinking fund”).  Hamilton insisted that the Latin root of credit, credere (“to believe”), reflected the true source of credit.  “States, like individuals, who observe their engagements, are respected and trusted: while the reverse is the fate of those, who pursue an opposite conduct.”  While the states and the Confederation had abdicated their responsibilities and the country had suffered accordingly, Hamilton believed that his program lessened those dangers.

In practice, regrettably, Hamilton’s cautious and balanced approach has been cast aside. The only measure today appears to be how much can be borrowed on the increasingly suspect credit of the United States, rated as it is on the perceived ability of Americans to pay and the country’s status as the still safer haven for international funds than are the bonds of other countries.  Debt is rolled over, not retired, as more debt is added.

I happened to come across a book written fewer than forty years ago. The author recounted in horror that the gross national debt (not the annual deficit) topped the stratospheric level of $450 billion.  Even more scandalous to him was the explosion of the national debt from roughly $40 billion in 1940. Those are the kinds of numbers that today sound like unattainable frugality as a measure even of annual deficit, never mind as a measure of gross national debt. Even adjusted for inflation and population growth, the cumulative effect of the borrowing binge reflected in today’s debt is staggering compared to that time not so long ago.

Today’s questionable fiscal and monetary policies are not novel, of course.  The Lincoln administration’s massive borrowing and its manipulation of the currency is one stark early example.  FDR’s unilateral cancellation of gold clauses in public bonds (upheld by the Supreme Court in a stunning exercise of sophistry in Perry v. U.S. in 1935) and his comparatively massive, for that time, expansion of the debt, is another. But even those actions arguably were more defensible than today’s deficit borrowing. There is no massive war; the economic recession is not of the same degree; the borrowing is used to fund entitlements, not infrastructure.  Worse, the deficit is not a matter of a few years, but, by now, of generations.  It is structural. Worst of all, there is a lack of seriousness and urgency on the part of the political branches.  As Hamilton feared, that foundation of sound credit, the “belief” and confidence of creditors, is unlikely to be maintained in the teeth of such profligacy.

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/ .

March 15, 2011 – Article I, Section 07, Clause 1 of the United States Constitution – Guest Essayist: Joerg Knipprath, Professor of Law at Southwestern Law School

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Article I, Section 7, Clause 1

1:  All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.

Article I, Section 7, addresses the process by which legislation is enacted. Before the general process itself is laid out, clause 1 of that section directs that all bills for raising revenue shall originate in the House of Representatives. The Senate is given the power to respond with amendments. Therein, as it turns out, lies a fatal flaw. The House has also frequently asserted that this provision applies as well to appropriations measures. Though not entirely persuasive based on the text, as a practical matter, most appropriations bills originate in the House.

There was virtually no discussion about this clause at the Philadelphia Convention. How could this be? The reason is that the belief that the power of taxation lies with the people was a key component of American republicanism. That article of faith, no, self-evident truth, was the culmination of centuries of evolution of English constitutional doctrine that meshed well with American colonial practice and found expression in such Revolutionary War-era slogans as “no taxation without representation.” The House of Representatives is the only institution of the general government for which the original Constitution made explicit provision of popular election. That fact, and the limited term of office and the frequent recourse to elections for members, made the House the natural repository of republican sentiment in the Framers’ view. There was no need for extensive debate over the (to them) obvious.

The triumph of Parliament over King on the issue of taxation was a process centuries in evolution. The King had revenues from royal properties and various prerogatives, such as assessing import duties. Beyond that, general taxes of persons or wealth were seen as “gifts” from the commons to the crown. Otherwise, taxes would be nothing but exactions against will, backed only by superior force. There would be little difference, then, between such an exaction and one procured by a highwayman. To the English, taxes were dangerous devices by which a person’s freedom was readily destroyed as he was reduced to penury.

But government still needed money, especially during war. The fiction used to get around the obstacles of the “taxes-as-gifts” theory was that the commons, represented in Parliament, could vote to assess themselves and offer such “gifts” to the crown. While this obviously did not please those who did not agree to the tax, it did provide a political tool to limit royal fiscal voraciousness that other monarchies of the time lacked. Once Parliament separated into Commons and Lords, this power fell to the former. By 1407, the Commons had sole power to originate money bills. Attempts by the Lords to have at least an amending or revisory power were rejected. By the end of the Glorious Revolution nearly three centuries later, not only did the House of Commons have plenary power over revenue bills, but it had also won the power to direct the appropriation thereof.

The colonies and, later, the states followed this model. The colonial assemblies saw the enactment of local revenue bills as their prerogative because of their connection to the people through a comparatively broad electoral franchise in many colonies. Pre-Revolutionary War rhetoric, from John Dickinson’s “Letters from a Farmer in Pennsylvania” to the Stamp Act Congress Resolutions echoed this unquestioned dogma of the, frankly rather lightly-taxed, Americans. A similar sentiment prevailed, once the states declared independence. For example, the language of Article I, Section 7, cl. 1, appears almost verbatim in the Massachusetts constitution of 1780 (except for the cosmetic distinction that the state used “money bills” instead of “bills for raising revenue”).

Why, then, are taxes today as high as they are? Historical experience (rather than dogma) provides an insight. In England, as well as in America, the application of constitutional principle resulted in legislatively dominant groups engaging in the entirely understandable practice of having someone other than themselves make these “gifts.” In England, when the House of Commons was controlled by the landed gentry, taxes tended to fall on activities of commerce. When upper and upper-middle class commercial interests came to predominate, they sought to impose consumption taxes (excises) on a broad variety of items used by the (unrepresented) middle and lower economic strata. In the colonies and states, legislatures controlled by middle-class farmers and artisans saw great sense in wealth taxes that targeted the upper-middle and upper classes who were repeatedly being exhorted to pay their fair share based on their greater ability to do so. Thus operates human nature.

Taxation as a form of giving (by the people), not taking (by the government), is an idea that seems to have little currency in certain quarters. It often seems today that those in government, including our representatives, believe that the money is theirs, while the citizenry is at best a collection of tenants at sufferance of their own earnings and wealth. Thus, it comes as little surprise that the technicalities of Article I, Section 7, cl. 1, have not proven to be bulwarks against excessive taxes. The dynamic of the political system for decades has been to extract more and more money from some to fund more and more desires of others. The House still, on occasion, guards its formal pre-eminence in money matters against the Senate and the President, though the current House will soon reveal the extent of its substantive effectiveness in curtailing a budget dominated by gargantuan programs of non-discretionary spending.

As well, there is little in the text to prevent a determined Senate from taking a House bill and “amending” it by deleting all language after “Be It Hereby Enacted” from a House bill. That has happened repeatedly, with Supreme Court approval of the practice over at least the last century. More recent examples of this include a Reagan-era tax law and the 2008 TARP bill. Most infamously, the “reconciliation” process involving ObamaCare began as a Senate gutting of a House revenue bill. The lesson to be remembered yet again is that the carefully drawn balance in the Constitution ultimately depends on the willingness of the citizenry to hold the government to its obligations.

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/ .

March 7, 2011 – Article I, Section 04, Clause 1-2 of the United States Constitution – Guest Essayist: Joerg Knipprath, Professor of Law at Southwestern Law School

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 Article I, Section 4, Clauses 1-2

1:  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 chusing Senators.

2:  The Congress shall assemble at least once in every Year, and such Meeting shall be on the first Monday in December,5  unless they shall by Law appoint a different Day.

Article I, Section 4, cl. 1, delegates to the state legislatures the authority to determine the time, place and manner of electing Senators and Representatives. However, with one qualification that has been rendered effectively moot by the 17th Amendment, Congress may supersede state law.

This is one of few clauses in the Constitution that affirmatively require the exercise of authority by the states. It raises interesting questions about the applicability of the traditional “default” view that all powers not affirmatively delegated to Congress or explicitly denied to the states, are reserved to the states or the people, as reflected in the 10th Amendment. Does this explicit provision “create” power for the states to act? Or, does the clause require the states to exercise a power they already have, but that they could ignore in the absence of this command?

Justice Stevens, writing for the majority, and Justice Thomas, writing for four dissenters, debated that issue in a fascinating case, U.S. Term Limits v. Thornton, in 1995. Term Limits addressed the constitutionality of an Arkansas state constitutional amendment that imposed term limits on its Senators and Representatives. Technically, the opinion involved the interpretation of the “qualifications” clause of Article I, Section 2, clause 2, whether term limits constituted an unconstitutional addition to the listed qualifications. But both sides (especially Justice Thomas) explored the applicability of Article I, Section 4, and the question of state power to act when the Constitution is silent.

The majority held that the states have no powers to act in matters that spring exclusively out of the existence of the national government created by the Constitution, unless the Constitution itself delegates that power to the states. Justice Stevens quoted the brilliant early-19th century nationalist Justice Joseph Story that, “No state can say, that it has reserved, what it never possessed.” He also noted that Alexander Hamilton, writing in Federalist 59, had warned of the danger to the Union’s existence if the states had the exclusive power to regulate Congressional elections.

In Stevens’s view, the Constitution created the national government ex nihilo, and the states had reserved powers only in those areas previously within their legislative discretion. Hence, since there was no affirmative grant to states to add qualifications for federal representatives, such power did not exist. Stevens viewed Article I, Section 4, as evidence for this proposition, as it (in his view) delegated authority to the states to act that, in the clause’s absence, would not have existed, while giving Congress ultimate control.

Stevens’s position makes it unclear why the clause is needed at all. Presumably, if the states do not have the inherent power to control the manner of election of the national legislature, but such power rests instead in the federal government, Congress already has ultimate control over the manner of election. Also, if this was delegation to the states, there is no need to declare what the states “must” do, and what Congress “may” do.

Justice Thomas found Stevens’s view to be exactly backwards. Since the states once had all powers, including the power to create whatever Union they wanted, or none at all, they also retained whatever authority they had not surrendered or that was not denied them in regards to the composition of the national government. Since the Constitution does not deny the states the power to add (but not subtract) from the listed qualifications, term limits are constitutional. Moreover, Article I, Section 4, does not detract from the general position that the states have all reserved powers. Thomas saw this provision not as a delegation to the states from the people, created by the Constitution. Rather, this is an imposition on the states of a duty to act, where otherwise none would exist.

Thomas pointed out that, without such a clause, the states could still determine the time, place, and manner of electing members of the national legislature. But they also might refuse to elect members of Congress, to cripple the federal government just as Hamilton warned. This clause, then, imposed a duty on the states (“must”) to exercise that power, subject to the authorization to Congress (“may”) to override the states’ choices. As a corollary, if the clause did not exist, Congress would have no power to act.

Until 1842, Congress left regulation of such elections to the states. States did not adhere to a single standard of electing Representatives (Senators were still elected by state legislatures). Often, at least some Congressmen were elected at-large. In that year, Congress began to require that single-member districts be used. By 1911, federal law mandated that such districts be “composed of a compact and contiguous territory and containing as nearly as practicable an equal number of inhabitants.”

When a later law eliminated that last requirement, substantial malapportionment occurred. Eventually, the Supreme Court waded into this “political thicket,” using another related provision, Article I, Section 2, to strike down apportionment that resulted in districts of disproportionate populations. A nearly absolute “one man-one vote” equality emerged to assure that, as nearly as practicable, “one man’s vote in a congressional election is to be worth as much as another’s.”

Additional questions raised by this clause are whether Congress could regulate primaries that, after all, are an integral part of the election process (based on Supreme Court opinions, today it probably could) or financing of Congressional elections (yes, within the broad contours of the First Amendment). Congress can prescribe the mechanics of voting, as well.

State laws are still important. For example, states still control the requirements for recounts, as a number of candidates in various close races in November, 2010, discovered. As well, states have different rules (and interpretations by state courts) for replacing candidates who drop out shortly before the election. Frank Lautenberg of New Jersey was permitted to replace corruption-plagued Democratic Senator Robert Torricelli on the ballot when the latter withdrew a month before the election. On the other hand, Texas Republicans were not permitted to replace Tom DeLay’s name on the ballot when he withdrew five months before the election.

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/ .

 

May 10, 2010 – Federalist No. 9 – 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

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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.

 

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

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Monday, May 10th, 2010

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?

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?

 

May 24, 2010 – Federalist No. 19 – The Same Subject Continued: The Insufficiency of the Present Confederation to Preserve the Union, For the Independent Journal (Hamilton & Madison) – Guest Blogger: Joerg Knipprath, Professor of Law at Southwestern Law School

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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

 

June 1, 2010 – Federalist 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

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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.

June 10, 2010 – Federalist No. 32 – The Same Subject Continued: Concerning the General Power of Taxation, From the New York Packet (Hamilton) – Guest Blogger: Joerg Knipprath, Professor of Law at Southwestern Law School

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Thursday, June 10th, 2010

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.

 

June 11, 2010 – Federalist No. 33 – The Same Subject Continued: Concerning the General Power of Taxation, From the Daily Advertiser (Hamilton) – Guest Blogger: Joerg Knipprath, Professor of Law at Southwestern Law School

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Friday, June 11th, 2010

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.

 

June 17, 2010 – Federalist No. 37 – Concerning the Difficulties of the Convention in Devising a Proper Form of Government, From the Daily Advertiser (Madison) – Guest Blogger: Joerg Knipprath, Professor of Law at Southwestern Law School

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Thursday, June 17th, 2010

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.

 

June 18, 2010 – Federalist No. 38 – The Same Subject Continued, and the Incoherence of the Objections to the New Plan Exposed, From the New York Packet (Madison) – Guest Blogger: Joerg Knipprath, Professor of Law at Southwestern Law School

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Friday, June 18th, 2010

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.

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

 

June 23, 2010 – Federalist No. 41 – General View of the Powers Conferred by the Constitution, For the Independent Journal (Madison) – Guest Blogger: Joerg Knipprath, Professor of Law at Southwestern Law School

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Wednesday, June 23rd, 2010

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.

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.

 

June 25, 2010 – Federalist No. 43 – The Same Subject Continued: The Powers Conferred by the Constitution Further Considered, for the Independent Journal (Madison) – Guest Blogger: Guest Blogger: Joerg Knipprath, Professor of Law at Southwestern Law School

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Friday, June 25th, 2010

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.

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.

 

June 28, 2010 – Federalist No. 44 – Restrictions on the Authority of the Several States, From the New York Packet (Madison) – Guest Blogger: Joerg Knipprath, Professor of Law at Southwestern Law School

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Monday, June 28th, 2010

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..

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.

 

June 29, 2010 – Federalist No. 45 – The Alleged Danger From the Powers of the Union to the State Governments Considered, For the Independent Journal (Madison) – Guest Blogger: Joerg Knipprath, Professor of Law at Southwestern Law School

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Tuesday, June 29th, 2010

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.

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.

 

July 12 – Federalist No. 54 – The Apportionment of Members Among the States, From the New York Packet (Madison or Hamilton) – Guest Blogger: Joerg Knipprath, Professor of Law at Southwestern Law School

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Monday, July 12th, 2010

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.”

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

 

July 15, 2010 – Federalist No. 57 – The Alleged Tendency of the New Plan to Elevate the Few at the Expense of the Many Considered in Connection with Representation, From the New York Packet – Guest Blogger: Joerg Knipprath, Professor of Law at Southwestern Law School

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Thursday, July 15th, 2010

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.”

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.

 

July 30, 2010 – Federalist No. 68 – The Mode of Electing the President, From the New York Packet (Hamilton) – Guest Blogger: Joerg Knipprath, Professor of Law at Southwestern Law School

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Friday, July 30th, 2010

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.

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

 

August 2, 2010 – Federalist No. 69 – The Powers of the President, From the New York Packet (Hamilton) – Guest Blogger: Joerg Knipprath, Professor of Law at Southwestern Law School

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Monday, August 2nd, 2010

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

 

August 3, 2010 – Federalist No. 70 – The Executive Department Further Considered, From the New York Packet (Hamilton) – Guest Blogger: Joerg Knipprath, Professor of Law at Southwestern Law School

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Tuesday, August 3rd, 2010

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.

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

 

April 26, 2010 – Articles IV – VII of the U.S. Constitution – Guest Blogger: Joerg Knipprath, Professor of Law at Southwestern Law School

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Monday, April 26th, 2010

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.

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?