Thursday, March 21, 2013 – Essay #24 – Farewell Address by George Washington – Guest Essayist: Justin Butterfield, Religious Liberty Attorney at the Liberty Institute

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At the end of his second presidential administration, after forty-five years serving America, President Washington did not want to leave without imparting some final guidance and wisdom. To do so, Washington, working from drafts written by James Madison and Alexander Hamilton, wrote a letter to the American people titled “The Address of Gen. Washington to the People of America, on his Declining the Presidency of the United States” and more popularly known as “Washington’s Farewell Address.” Read more

Monday, March 18, 2013 – Essay #21 – Memorial and Remonstrance against Religious Assessments by James Madison – Guest Essayist: Justin Butterfield, Religious Liberty Attorney at the Liberty Institute

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James Madison’s “Memorial and Remonstrance against Religious Assessments” is an important document in establishing the necessity of religious liberty in America.

Madison grew up in a Virginia in which the Church of England was the established church. Not only were Virginia’s citizens taxed to support the Church of England, but ministers of other denominations were frequently jailed for preaching what they believed. In January of 1774, Read more

May 19, 2011 – Amendment I of the United States Constitution – Guest Essayists: Mr. Kelly Shackelford, President and CEO for Liberty Institute, and Justin Butterfield, Constitutional Attorney, Liberty Institute

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Amendment I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

First Amendment to the U.S. Constitution

Perhaps the most important and the most contentious portion of the United States Constitution, the First Amendment to the U.S. Constitution—the first of the Bill of Rights—was instrumental in ensuring that the new Constitution would be accepted by citizens of the fledgling United States at the end of the eighteenth century. The Constitution set up a government of limited, enumerated powers. “Enumerated powers” meant that the federal government, as originally envisioned, could take no action unless the Constitution explicitly granted the government the power to take that action. In theory, then, the federal government could not restrict freedom of speech because the Constitution did not give Congress permission to restrict freedom of speech. Many American citizens, however, having just fought a war resulting from Britain’s disregard for their rights, were leery of entrusting their newly-won freedom to a government with no explicit protections for individual rights. They did not believe that the “lack of permission” for Congress to act was strong enough protection. To address these concerns, twelve articles, known as the Bill of Rights, were submitted to the states for ratification as amendments to the Constitution. Of these twelve articles, the last ten were ratified in the eighteenth century (the second article of the Bill of Rights was ratified in 1992 as the 27th Amendment to the U.S. Constitution). Unlike the main text of the Constitution, the articles of the Bill of Rights are explicit prohibitions on the government, designed to prevent the federal government from being able to trample on the rights of states and citizens.

The First Amendment famously begins, “Congress shall make no law….” The First Amendment originally limited only Congress and, thus, the federal government. State and local governments were not limited by this (or any other) amendment to the Constitution. The First Amendment was considered to only apply to the federal government until 1925 when the Supreme Court, in Gitlow v. New York, held that the Fourteenth Amendment, which applies to the states, “incorporated” the First Amendment.

Following the statement that the First Amendment applies to Congress are five clauses, each protecting one aspect of the flow of ideas. These five clauses are the Establishment Clause (“…respecting an establishment of religion”), the Free Exercise Clause (“or prohibiting the free exercise thereof”), the Free Speech Clause (“or abridging the freedom of speech”), the Free Press Clause (“or of the press”), and the Assembly and Petition Clause (“or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”).

The first two clauses of the First Amendment protect religious liberty. The Establishment Clause, a reaction against the abuses of the Church of England, was originally intended to prohibit the government from establishing an official national religion or supporting one religious denomination over another. This clause has since been re-interpreted to say that government may not favor religion in general, thus leading to increased attempts to secularize society, including banning any possibly perceived “endorsement” of religion by the government. The Free Exercise Clause is the counterpoint to the Establishment Clause. While the Establishment Clause prevents the government from establishing a religion, the Free Exercise Clause prohibits the government from interfering with individuals’ religious expression.

The Free Speech Clause of the First Amendment protects the expression of ideas. Not all speech is equally protected, however. Political speech is afforded the greatest protection under the First Amendment. Commercial speech—speech done to make a profit—is given less protection. The guaranty of freedom of speech does not extend to certain types of speech, such as obscenity or speech that incites immediate violence. The government is also allowed to place some reasonable limits on when, where, and how speech can take place, but these limits cannot be used to favor one viewpoint over another. For example, a government can prohibit the use of megaphones at night near residential areas, or a government can prohibit a demonstration from walking through a secured military base. If, however, the government allows one group to use a megaphone at night near a residential area, then the government cannot prohibit another group from doing so based on the viewpoint that the second group espouses.

The Free Press Clause is closely related to the Free Speech Clause, but applies to printed communications. This clause has also been used to strike down taxes that specifically target newspapers and laws that require “fairness” in reporting.

Finally, the Assembly and Petition Clause protects the right of people to assemble together and to petition the government. This clause is important in a republic because petitioning the government is one of the main ways the citizenry exercises its sovereignty. While this clause protects the right of the people to petition the government, it does not require that government officials actually listen to or respond to any petition attempt.

Ultimately, a true republican form of government cannot exist apart from the free flow of ideas. Additionally, this amendment ensures that the government cannot impose a state orthodoxy, violating the conscience of those who hold unpopular views or forcing them into intellectual submission. This amendment also ensures that open debate is not thwarted, for as John Milton said, “Though all the winds of doctrine were let loose to play on the earth, so Truth be in the field, we do injuriously, by licensing and prohibiting, to misdoubt her strength. Let her and Falsehood grapple; who ever knew Truth put to the worse, in a free and open encounter.”

Kelly Shackelford, Esq., is President/CEO for Liberty Institute, a post he has held since 1997. A constitutional scholar, Mr. Shackelford has argued before the United States Supreme Court, testified before the U.S. House and Senate on Constitutional issues, and is on the Board of Trustees of the United States Supreme Court Historical Society.

Justin Butterfield, Esq. is a Constitutional attorney on staff with Liberty Institute. Mr. Butterfield graduated from Harvard Law School in 2007.  He also holds a Bachelor of Science degree in Electrical Engineering from the University of Texas at El Paso where he graduated Summa Cum Laude.

April 12, 2011 – Article I, Section 10, Clause 2 of the United States Constitution – Guest Essayist: Justin Butterfield, Constitutional Attorney, Liberty Institute

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Article 1, Section 10, Clause 2

2:  No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it’s inspection Laws:  and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Controul of the Congress.

One of the primary difficulties in the establishment of the United States’ government was striking the right balance between states’ rights and the need for a national government that could present one face towards the rest of the world while maximizing the strengths of uniting the states. Under the Articles of Confederation, the first attempt at a government for the United States of America, power was so decentralized that each state almost operated as an independent nation. States were entering into their own treaties with foreign nations; states were coining their own money; and states were setting their own tariffs, both for goods from other nations and from other states. Article 1, Section 10, Clause 2 of the U.S. Constitution was a response to the economic and political disunity and inefficiency that existed because of each state’s ability to set its own tariffs under the Article of Confederation. These tariffs were damaging both economically and politically.

Economically, the protectionism of the states and the corresponding tariffs eliminated the trade advantages that would otherwise have come from the union of the states. In 1776, Adam Smith’s Wealth of Nations set forth the principles that would ultimately replace the economic policy of mercantilism with capitalism and free trade. Among these principles were that one should “never attempt to make at home what it will cost him more to make than to buy.” Associated with this principle is the idea that goods should be produced where it is most efficient to produce that type of good and traded for other goods that can more efficiently be produced elsewhere. Because of the diverse geographies and climates of the states, the union of the states within the United States of America should have resulted in great efficiency of trade, increasing the wealth of all of the states. Cotton, better produced in the southern states, could have been traded for manufactured goods produced in the northern states. Instead, under the Articles of Confederation, one state would set tariffs against another state so high that the benefits of trade were lost. Trade wars broke out between the states. New York imposed high tariffs on products from New Jersey and Connecticut, which responded in kind. States with major ports were also able to set high import and export duties, hurting neighboring states that did not have their own ports. This protectionism among the states fueled rivalries among the states and encouraged each state to be as self-sufficient as possible to avoid having to pay high tariffs to other states. These tariffs thus prevented both free trade and the benefits that Adam Smith’s Wealth of Nations predicted would be brought about by that trade.

In 1827, the Supreme Court, in Brown v. Maryland, looked back on the tariff wars between the states and the establishment of Article 1, Section 10 Clause 2 of the U.S. Constitution:

From the vast inequality between the different states of the confederacy, as to commercial advantages, few subjects were viewed with deeper interest, or excited more irritation, than the manner in which the several states exercised, or seemed disposed to exercise, the power of laying duties on imports. …

A duty on imports is a tax on the article, which is paid by the consumer. The great importing states would thus levy a tax on the non-importing states, which would not be less a tax because their interest would afford ample security against its ever being so heavy as to expel commerce from their ports.

This would necessarily produce countervailing measures on the part of those states whose situation was less favorable to importation. For this, among other reasons, the whole power of laying duties on imports was, with a single and slight exception, taken from the states.

The ability of states to set their own tariff levels also led to political problems for the United States as a whole. Although the Articles of Confederation sought to present the union of the states to the world as a unified whole, foreign nations could not trade with the United States as one nation because each state had its own tariffs. Additionally, because each state could set its own tariffs, foreign nations refused to negotiate trade agreements with the United States. The inability of the confederate government to regulate tariffs illustrated its fundamental weakness to the governments of other nations.

In the late eighteenth century, tariffs and economic protectionism were no less a major economic and political factor than they are today. With each state able to set its own tariffs, many of the benefits of being one nation were lost, and economic and political warfare and chaos ensued. Through Article 1, Section 10, Clause 2 of the U.S. Constitution, many of the economic issues facing the states under the Articles of Confederation were corrected.

Justin Butterfield, Esq. is a Constitutional attorney on staff with Liberty Institute. Justin graduated from Harvard Law School in 2007.  He also holds a Bachelor of Science degree in Electrical Engineering from the University of Texas at El Paso where he graduated Summa Cum Laude.