Home Rule or Dillon Rule? Meaning and Purpose for Effective Local Government

, , , , , , , ,
Guest Essayist: Marc Clauson

LISTEN ON SOUNDCLOUD:

Home Rule or Dillon Rule? What is the meaning, purpose and impact for American citizens to choose “Home Rule” or “Dillon Rule” authority to govern their cities? How does each work for local as compared to state government?

John Dillon, a Federal judge in the nineteenth century, wrote a famous treatise, Municipal Corporations (1872), in which the legal doctrine of the power of municipal governments was expressed.  The rule that emerged from his book and court cases was that local governments were “creatures of the state” and only had power to do what was expressly authorized by the state legislature or in the state constitution or what was implied in those laws or what was necessary to carry out those powers granted.  The opposite rule, the “Cooley Doctrine,” is derived from the work of the judge Thomas Cooley, and expressed the idea of the inherent right of self-government for local entities. The idea of Home Rule for cities arose out of the Cooley Doctrine.

Neither of these legal theories is inherently better than the other, though some might think (with some support) that the Dillon Rule prevents cities from straying too far from legitimate authority.  The key is what a legislature or state constitution allows a city to do.  If under the Dillon Rule the city is granted expansive authority, then the rule does not effectively limit governmental power.  The Cooley Doctrine already tends to allow a greater range of independent authority to a city, which may amount to an inappropriate scope of power.  If the American political experiment was predicated on limited government, as was the case of the United States Constitution, then local governments should also fall under the umbrella of that political theory.  There is no inherent reason why they should be treated differently than state and national governments.

The implications of the Dillon Rule are that a check on inappropriate power of a city can exist if a legislature exercises its political will.  On the other hand, the Cooley Doctrine might allow a larger scope of power than would be beneficial to citizens, unless the particular city government form adopted (strong mayor, weak mayor, council, strong charter, etc.) can provide a check.  In the end, what one wants to see is a city/local government that possesses powers that are similar in nature to those possessed by the national government under the Constitution, adjusting of course for the differing functions.  My point has to do with the scope and nature of powers.  If a particular power is allowed (under whichever rule), it still should not be an unlimited power.  Moreover, not all powers are legitimate for any given local government or for any such government.  Under current law of local government, it is incumbent on the state legislatures to create institutional arrangements that do limit power, or that appropriate state constitutional limits be in place.

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

Click Here for the previous essay.

Click Here for the next essay.

Click Here to have the NEWEST essay in this study emailed to your inbox every day!

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

 

/4 Comments/by

Founders’ Purpose: America’s State and Local Form of Government as Guaranteed by the U.S. Constitution

, , , , , , , ,
Guest Essayist: Marc Clauson

LISTEN ON SOUNDCLOUD:

What is the purpose and impact of Article IV, Section 4 of the U.S. Constitution in that “The United States shall guarantee to every State in this Union a Republican Form of Government”? How does this form relate to the republican (representative) styles such as Commission Form, County Administrator, Elected Executive, City-County Consolidation, Constitutional Row Offices or Home Rule Authority to ensure power remains in the hands of each American, preventing a monarchy or aristocracy in each state and local government?

The idea of a republican government was raised at the Constitutional Convention in the atmosphere of the just-ended War for Independence.  The primary target of the signers of the Declaration has been the  English king, who was designated a tyrant.  This same target lies in the background in discussions of the governmental form.  In addition, the Founders had read widely in ancient and recent history and had studied many forms of government labeled as republics.  Their conclusions were ambiguous.  They were not agreed as to what a republic was, but they did agree on what it was not.  The meaning of Article IV, Section 4, then has to be understood in this light. For the Founders, it meant simply that government was not a monarchy. So to guarantee a monarchy was to eliminate monarchy as legitimate, but then to “fill in details” as to what it was by drawing on many diverse sources in order to design the best constitutional form.  In a positive sense, therefore, a republic contained elements of democracy, aristocracy and some executive function, though never only a monarchy.  It was also viewed as a form in which all power was limited and checked in various ways.

It is then the task of architects of governmental forms to design governmental structures to discover those institutional structures that promote republican government.  Obviously this means no monarchy (or one-man rule), but that itself does not tell us what forms are best or whether we may have “sneaked” in one-man rule in other guises.  It was in the late nineteenth century, during the Progressive Era, that unique forms of government began to be proposed at state and local levels.

The motives behind the Progressive Movement treated the Constitution as an outmoded document in the light of a complex and changing society.  But one aspect of that movement was a desire for more democracy at all levels of government. By itself, that desire could be beneficial insofar as it marked a return to consent as the basis for governments.  This democratizing trend then was consistent with the spirit of Article IV, Section 4.  However, it’s weakness would be a failure to maximize the use of checks and balances at state and local levels, leaving the elected bodies themselves with virtually sole power with no limits except those imposed by state and Federal constitutions.

In particular, institutions like Home Rule government do bring the people closer to those who govern them, but at the same time, can increase centralization of government.  So even though the officials of those urban areas might be elected, the number of officials elected might be smaller and there might be no enforceable constitutional limits.  It is necessary therefore to carefully design institutions, even though we might construct more democratic processes.

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

Click Here for the next essay. 

Click Here for the previous essay. 

Click Here to have the NEWEST essay in this study emailed to your inbox every day!

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

 

/0 Comments/by

State Constitutions? Why Would Each State Need Its Own Constitution? Part 1 – Guest Essayist: Marc Clauson

, , , , , , , ,

LISTEN ON SOUNDCLOUD:

State Constitutions? – Why would each state need a constitution when we have the United States Constitution? What would it mean for the states to be run by their citizens rather than royal rule?

The first question poses an issue of federalism and the rule of law.  The United States Constitution was drafted to establish a particular form of government at the national level.  Its provisions were not intended mainly to address states as states but individuals who lived in those states.  Federalism as an institutional form allocated certain powers to the national government and more or less left any remaining powers to the states.  If the citizens of any given state were to enjoy the benefits and protections of limited government, some sort of constitutional rules would be required.  Otherwise the state governments would have unlimited authority.  By definition a constitution is an enforceable set of rules, alterable by the people and unalterable by the government.  A state constitution provides such a framework.

This also is one reason why state constitutions are so long, compared to the Federal Constitution.  The state governments possess reserved powers, that is, all power not granted to the national government.  Since this is a very large potential body of power, it is necessary to address any particular power that might be invoked by the state.  In turn, that requires a much more detailed set of provisions, since whatever is not addressed is by definition granted to the state government.

The second question is one of self-governance.  John Locke had argued that all legitimate government was established by a social contract founded on the “consent of the people.”[1]  For Locke this was the only effective way to limit the power of government to its ordained functions—the protection and promotion of the natural rights of life, liberty and property.  Royal rule implied a centralized and removed form of government in which the citizens had only those rights that government chose to grant to them.  In the Colonial period, constitutionalism did not exist in effect, though many spoke of an “Ancient Constitution” that, among other things guaranteed “the rights of Englishmen.”  This was however an unenforceable hodgepodge of laws and customs, not a coherent, written document.

As a result, governance from England was exercised through the king and his colonial governors.  If the states were governed by their citizens they would be able to choose their own type of institutional structure and likely (as they did) directly participate in choosing many of the public officials.  The government would in a real sense be closer to the people.  Local conditions would be better known, as opposed to attempts to make policy from the mother country.

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

[1]   See Second Treatise of Government (1690).

Click Here for the next essay. 

Click Here for the previous essay. 

Click Here to have the NEWEST essay in this study emailed to your inbox every day!

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

/2 Comments/by

Religious Freedom Since the First Amendment and Early State Constitutions – Guest Essayist: Marc Clauson

, , , , , , , ,

LISTEN ON SOUNDCLOUD:

Meaning of, and how early state constitutions allowed religious establishments regardless of the First Amendment

The first states, as we know, were originally colonies of Great Britain.  Even before that, some were not founded as British colonies, but independent endeavors.  Only later, after the “period of salutary neglect,” did they come under direct governance of the Crown.  From the beginning then, the American colonies, though they did have their own charters and compacts (early constitutions), also could and did have established religions—though many were also tolerant of other religious sects.

Several things must be noted regarding the early colonial and state constitutions in relation to the United States Constitution.  First the colonial and later state constitutions did allow for a single established church.  Some of these simply followed the Anglican Church model and others adopted a different church model.  But their respective constitutions did not pose any legal barriers to this.  Second, the United States Constitution in the First Amendment explicitly stated that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof….”  In the early years of the Republic that clause was applied only to the national government, leaving the states free to establish their own official churches.  Many did so.  But even those that did, tended to allow for different sects of Christianity—and even different non-Christian religions.  Massachusetts was the last state to abolish its established Christianity in 1833, before the First Amendment was applied by the United States Supreme Court to the states as well as the national government.

Throughout the “establishment period” (until 1833) the states allowed dissenting churches even though they mandated official churches supported by tax money.  It was not until 1947 in the Everson v. Board of Education, that the Supreme Court began to apply the Establishment Clause to the states.  At that point any established churches would be unconstitutional in the states.  Nevertheless, freedom of religion—toleration in effect—was already the custom of the states, and all had by then abolished established churches.

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

Click Here for the next essay.

Click Here for the previous essay. 

Click Here to have the NEWEST essay in this study emailed to your inbox every day!

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

/0 Comments/by

Congress And The Rise Of The Progressive Administrative State

, , , , , , , , ,
Guest Essayist: Marc Clauson

LISTEN ON SOUNDCLOUD:

No one would argue that in the last hundred years or so, legislation on all sorts of matters by Congress has increased tremendously.  The question for this essay is why?  The answer has to do with an ideological change in American political thought and the practical outworkings of it in Congress and the agencies created by Congress and controlled by the president.  The ideological shift was to Progressivism or modern liberalism.  The practical outworking is the so-named “administrative state,” otherwise known as bureaucracy, or rather large bureaucratic organizations designed to implement legislation.  First however, definitions are in order.

The term “administrative state” refers, in the words of one scholar, to “our contemporary situation, in which the authority to make public policy is unlimited, centralized, and delegated to unelected bureaucrats.”[1]  It encompasses three related elements: (1) the propensity of Congress and agencies to promulgate much more frequent legislation and to issue expansive regulations respectively; (2) the idea that bureaucratic agencies ought to be populated by experts who are unbiased and public-minded; and (3) the massive growth of the size and power of those agencies since the New Deal era.

Progressivism is generally a uniquely American ideological term that is more or less equivalent to modern liberalism and similar to the European social democracy.[2]  It is associated with the period from roughly 1880 to 1925 and is defined as “a total rejection in theory, and a partial rejection in practice, of the principles and policies on which America had been founded and on the basis of which the Civil War had been fought and won only a few years earlier.”  Another definition: “Progressivism was the reform movement that ran from the late 19th century through the first decades of the 20th century, during which leading intellectuals and social reformers in the United States sought to address the economic, political, and cultural questions that had arisen in the context of the rapid changes brought with the Industrial Revolution and the growth of modern capitalism in America. The Progressives believed that these changes marked the end of the old order and required the creation of a new order appropriate for the new industrial age.”[3]

Progressivism was more or less equivalent to modern liberalism, the term used in Europe, particularly the United Kingdom in the 1880s and onward.  In addition, it was inspired to an extent by socialism in certain of its aspects. The Industrial Revolution seems to have been the main force in the origin of the movement, but the other side of that same coin was a skepticism of capitalism.  It is easy to see how Progressivism would challenge the constitutional principles of the American Constitution.

But the other element of the movement included a new-found appreciation for big government, and, particularly governmental services provided through a centralized bureaucratic organizational form employing experts who were considered both efficient and non-political.  This public administration aspect was especially advocated by Woodrow Wilson.  Wilson argued first that “Government does now whatever experience permits or the times demand.”[4]  The best means or state action was the most efficient and the most efficient was a bureaucratic and centralized government that could then bypass the inefficiencies of the separation of powers and a deliberative Congress.  The single chief executive then was the ideal for Wilson.[5]  At the same time, administration was separated from politics in the Progressive vision.[6]  This “administrative state” is described: “[T]o varying degrees, the fathers of progressive liberalism envisioned a delegation of rulemaking, or regulatory, power from congressional lawmakers to an enlarged national administrative apparatus, which would be much more capable of managing the intricacies of a modern, complex economy because of its expertise and its ability to specialize. And because of the complexities involved with regulating a modern economy, it would be much more efficient for a single agency, with its expertise, to be made responsible within its area of competence for setting specific policies, investigating violations of those policies, and adjudicating disputes.”[7]

The Progressive Era as a movement ended around 1925, but its ideas persisted and the ideology gained adherents both among academics and politicians and government officials.  As a body, Congress came to be more swayed by Progressive ideas once it was made up of a Democratic majority during the presidency of Franklin Roosevelt.  In fact, it attempted to pass much legislation that had a Progressive cast.  However until around 1937, the Supreme Court consistently struck down many Congressional efforts.  But after the court-packing scheme, the Court began to uphold legislation on a regular basis, and this expansion has never abated.  In the meantime, Congress itself moved increasingly toward increasing intervention in social and economic issues.  So while one may place some blame on the Court, an equal blame falls on Congress itself.  It has delegated power to non-elected and unaccountable agencies while at the same time passing incredibly lengthy and complex legislation, thus justifying (it argues) such delegation.  The Court has of course come to allow delegation as it has eviscerated the non-delegation doctrine, an outcome the fathers of Progressivism embraced.[8]  At present, Congress routinely passes very large pieces of legislation and simply delegates rule-making power to the agencies, as the Progressives envisioned.

In summary, the Progressive movement provided the intellectual stimulus for the expansion of the administrative state.  But Congress over time was increasingly willing to put into practice the ideas of that movement, both procedurally (by creating large, centralized and unaccountable agencies and delegating extensive power to them) and issuing the kind of legislation (in terms of its content) that can only be characterized as interventionist in markets and private activities.  One possible solution, apart from the courts, is the Article I Project, seeking to urge Congress to take back its law making power and eliminate or reduce delegation.  How well this movement fares is still an open question.

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

[1]   Joseph Postell, “What is the Administrative State”? in From Administrative State to Constitutional Government, at Heritage Foundation website, https://www.heritage.org/political-process/report/administrative-state-constitutional-government#Part1, 2012, retrieved February 11, 2018.

[2]   On these other terms, see James Kloppenberg, Uncertain Victory: Social Democracy and Progressivism in European and American Thought, 1870-1920.  Oxford University Press, 1986.

[3]   William Schambra and Thomas G. West, “The Progressive Movement and the Transformation of American Politics,” The Heritage Foundation, at https://www.heritage.org/political-process/report/the-progressive-movement-and-the-transformation-american-politics, 2007, retrieved February 12, 2018.

[4]   The State.  Heath, 1889, p. 651.

[5]   See Ronald Pestritto, Woodrow Wilson and the Roots of Modern Liberalism.  Rowman and Littlefield, 2005 and Vincent Ostrom, The Intellectual Crisis of American Public Administration, Third edition.  University of Alabama, 2007.

[6]   See Vincent Ostrom, Ibid.

[7]   Ronald Pestritto, “The Birth of the Administrative State: Where It Came From and What It Means for Limited Government,” The Heritage Foundation, at https://www.heritage.org/political-process/report/the-birth-the-administrative-state-where-it-came-and-what-it-means-limited, retrieved February 12, 2018.

[8]   See Pestritto, Ibid., “[T]he fathers of progressive liberalism envisioned a delegation of rulemaking, or regulatory, power from congressional lawmakers to an enlarged national administrative apparatus, which would be much more capable of managing the intricacies of a modern, complex economy.” because of its expertise and its ability to specialize.

/0 Comments/by

Length Of Legislation: Why Bills Have Grown Significantly Longer Over The History Of The United States Congress

, , , , , , , , ,
Guest Essayist: Marc Clauson

LISTEN ON SOUNDCLOUD:

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

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

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

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

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

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

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

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

/1 Comment/by

Rule Of Law: Accountable, Not Arbitrary, In Regards To Representing The American People

, , , , , , , , ,
Guest Essayist: Marc Clauson

LISTEN ON SOUNDCLOUD:

Rule of Law and Congress

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

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

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

One definition runs:

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

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

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

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

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

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

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

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

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

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

[5]   Ibid., Section 5.

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

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

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

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

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

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

Click Here for the previous essay.

Click Here for the next essay.

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

/1 Comment/by

Magna Carta (The Great Charter), Parliament And The Origins Of Representative Congress

, , , , , , , , ,
Guest Essayist: Marc Clauson

LISTEN ON SOUNDCLOUD:

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

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

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

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

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

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

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

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

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

[2]   Ibid.

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

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

[5]   Pitkin, op. cit., 244.

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

[7]   Ibid.

[8]   Ibid., p. 246.

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

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

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

[12]   Pitkin, op. cit., p. 191.

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

 

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

Click Here for the previous essay.

Click Here for the next essay.

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

 

/0 Comments/by

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

, , , , , , ,

LISTEN ON SOUNDCLOUD:

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

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

Read more

/3 Comments/by