Principle of Freedom of Religion

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Guest Essayist: Patrick Garry

 

Essay Read By Constituting America Founder, Actress Janine Turner

 

“Whereas Almighty God hath created the mind free; that all attempts to influence it by temporal punishments or burthens, or by civil incapacitations, tend only to beget habits of hypocrisy and meanness, and are a departure from the plan of the Holy author of our religion, who being Lord both of body and mind, yet chose not to propagate it by coercions on either, as it was in his Almighty power to do;…that to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical;…and finally, that truth is great and will prevail if left to herself; that she is the proper and sufficient antagonist to error, and has nothing to fear from the conflict, unless by human interposition disarmed of her natural weapons, free argument and debate, errors ceasing to be dangerous when it is permitted freely to contradict them:…Be it enacted by the General Assembly, That no man shall be compelled to frequent or support any religious worship, place, or Ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief;” – Thomas Jefferson, Virginia Statute for Religious Freedom, January 16, 1786.

Freedom of religion has been a foundational belief ever since America’s colonial beginnings in the seventeenth century. Most of the colonies were religiously inspired enterprises, and the early laws and charters of the colonies reflected those religious beliefs.

The European settlement of America owed much to the desire of the new settlers to escape the religious oppression of their old country. They braved the long, treacherous ocean journey to come to an unknown land filled with unknown dangers, all for the sake of finding the freedom to practice their religion.

A belief in freedom of religion stems from the conviction that religion reflected a higher source of authority than do civil governments; therefore, those governments should not coerce individuals from following their religious beliefs, especially when those beliefs do not threaten the state or pose harm to any other individual.

England, an originating country for many early settlers, possessed a state established religion—the Church of England. The government both supported this religion, with tax revenues, and regulated its theological practices. This meant that individuals who did not adhere to the tenets of the Church of England and who did not wish to belong to that religion were nonetheless forced to support it. Moreover, religious dissidents were often oppressed and discriminated against in various ways. It was this oppressive environment from which many American settlers wished to escape.

Once in America, the settlers initially formed their colonies around the single religion of their belief. However, as settlement increased and the colonies became more diverse in their population, the colonies in turn became more diverse in their religious identities, with the result that the American colonies acquired a practice of religious tolerance unknown in Europe.

This tolerance continued after America achieved its independence and formed a constitutional republic. The very first freedom enshrined in the First Amendment of the Bill of Rights guarantees individuals the right to freely exercise their religious beliefs. To further protect religious freedom, the First Amendment also prohibits Congress from establishing a state-run religion, as England had done with the Church of England.

Over the years, courts have grappled with the application of these religious liberty provisions in the First Amendment. The courts have ruled that the Free Exercise Clause prohibits government from targeting religion for selective burdens or discriminating against religious believers. However, because courts have not wanted to adjudicate all the areas in which religious beliefs might conflict with secular laws, the courts have held that neutral and generally applicable laws that incidentally burden religion are not unconstitutional. This holding has left religious believers vulnerable on a number of fronts, and so Congress in 1993 by an overwhelming margin passed the Religious Freedom Restoration Act, which sought to strengthen legal protections for religious liberty. Unfortunately, during the thirty years since passage of that law, the commitment to religious liberty on behalf of many political and governmental leaders appears to have waned.

With respect to the Establishment Clause of the First Amendment, courts have been even more confused and divided. Whereas some judges believe that the Establishment Clause was intended as another means by which to protect religious liberty, other judges have seen the Clause as a tool by which to prohibit any interaction between government and religion, thereby preventing religious institutions from receiving any government benefits or recognitions that all other social institutions are entitled to receive. This latter position rests on the argument that any government benefit given to a religious organization, regardless of whether that benefit has anything to do with religious beliefs, amounts to an unconstitutional establishment of religion. Essentially, this argument equates a Christmas display of a nativity scene in a public park with the tax-supported Church of England.

The judicial dispute on the Establishment Clause has come down to a debate over whether the Clause was intended to protect religious liberty or the secular identity of society. Recently, the U.S. Supreme Court has greatly clarified the nature and purpose of the Establishment Clause. Several years ago, it held that a cross monument constructed by private parties to honor military veterans, but now standing on public property, did not rise to the level of an unconstitutional establishment of religion. And in 2022, the Court held that a public school district did not violate the Establishment Clause by not forcibly prohibiting an assistant football coach from voluntarily saying a private prayer at mid-field after the conclusion of a game.

Opinion polls and political agendas suggest that Americans may not value religious liberty in the same manner as eighteenth-century Americans did. But the constitutional Framers foresaw that religious liberty should not be left up to the dictates of political opinion. The Framers so valued religious liberty that they placed it as the first liberty protected by the Bill of Rights.  And unlike contemporary critics who see religion as divisive, the Framers valued religion for contributing to the civic virtue and welfare of society.

For the constitutional Framers, freedom of religion was necessary not just to protect what was considered the most important individual liberty, but to protect the vitality and thriving of religious beliefs and institutions that in turn did much to strengthen society. Through religion, citizens learned the values of public service, honesty, and the rule of law. Religious belief combatted the vices of selfishness and greed and helped strengthen the virtues of self-sacrifice and self-restraint, which were seen as necessary traits for a stable nation.

Patrick M. Garry is professor of law at the University of South Dakota. He is author of Limited Government and the Bill of Rights and The False Promise of Big Government: How Washington Helps the Rich and Hurts the Poor.

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Principle of a Free Press

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Guest Essayist: Patrick M. Garry

 

Essay Read By Constituting America Founder, Actress Janine Turner

 

“Without Freedom of Thought, there can be no such Thing as Wisdom; and no such Thing as publick Liberty, without Freedom of Speech” – Part of an article by Benjamin Franklin, under the pseudonym Silence Dogood, a name he used due to threats against free speech. Franklin wrote it on freedom of speech and of the press; it published in a newspaper: No. 8 on July 9, 1722, The New-England Courant.

The principle of a free press is enshrined in the First Amendment of the United States Constitution. This principle has shaped and characterized American society and political governance from the nation’s earliest beginnings. Americans of every generation have valued a free and independent press, protected from the controlling or censuring arm of government.

This strong American cherishing of a free press has its roots in the colonial period, during the lead-up to the movement for independence from Britain. As the colonists learned, such a movement would not have been successful without a free and vibrant press.

One of the political catalysts of the American Revolution was the effort of the British to subdue the popular press in colonial America. This attempt was twofold. The first was an accelerated use of the law of seditious libel. The second was the Stamp Act, under which a prohibitive tax was placed on the paper used by the presses. This tax threatened to force the inexpensive press out of circulation and thus to suppress colonial discussion of politics.

The Stamp Act passed by Parliament in 1765 proposed a host of unprecedented and, in the American view, unconstitutional burdens. The passage of the Stamp Act hurt printers by threatening an increase in their costs and by jeopardizing their subscription base, since many subscribers refused to even indirectly pay a tax to the Crown.

Following passage of the Act, the colonial newspaper documented the public’s mounting opposition to the Act. Indeed, the outburst of popular resentment against the Act was so great that it led to the start-up of four new newspapers. Printers took an active role in the debate and developed a close alliance with political groups such as the Sons of Liberty. These political groups also founded new newspapers whenever they felt it desirable.

As the Stamp Act became effective, the majority of colonial newspapers became inspired by the wave of public opposition to the Act, and in one manner or another opposed the Act. By the time the Stamp Act was repealed, newspaper printers had acquired a heightened sense of their role in the community. The principle of “liberty of the press” had become a battle cry against the Stamp Act. The campaign against the Stamp Act also increased the opinion role of newspapers. No longer mere transmitters of information, they had become engines of opinion.

The newspapers carried forward the role they had played in the Stamp Act crisis to the protest against the Townshend Acts. Even more so than the Stamp Act, the Townsend Acts sparked an intense battle of opinion waged in the newspapers. This battle was fought between the patriot press and the government press, revealing the degree of public support behind each cause. The spirited campaign fought by the patriot newspapers against the Townshend Acts contributed to the eventual repeal of nearly all of the duties.

During the controversy surrounding the Stamp Act and Townshend Acts, printers were greatly swayed by the opinions of their readers. The more radical the readers, the bolder the printers. The content of colonial newspapers closely mirrored the particular issues that were important to the local constituencies. The press in effect became intertwined with local partisan battles, and newspapers often started up just as a political issue rose in importance.

During the interim period between the Townshend Acts and the Revolutionary War, newspapers continued to exist and to flourish, keeping open the channels of public discussion, which would become valuable in the crucial years ahead.

In 1773 when Parliament passed the Tea Act, a roar of protest once more emerged from the newspapers. The most aggressive editors were those who had participated in the protests in the 1760s. Again, the public mood thrusted the newspapers into the midst of the protest.

The American press played a major role in opposing British rule. The distinct gain in prestige made by the press during the revolutionary period began with the Stamp Act, the repeal of which was recognized as the result of a united colonial opposition made possible by the important role played by the newspapers of the day.

In addition to its political consequences, the newspaper offensive unleashed by the Stamp Act made several permanent impacts on American journalism. First, the influence of the press was enormously enhanced, instilling a newspaper-reading habit that would characterize many succeeding generations. In 1800, for instance, a magazine declared the United States to have become a nation of newspaper readers, and foreign observers noted in comparison with Europe the prevalence of newspapers in America.

After achieving independence from Britain and setting out to form a new constitutional republic in the United States, the Framers knew and treasured the role that a free press had played in shaping a new nation. This principle would receive not only constitutional protection in the Bill of Rights but would also command widespread popular support throughout America for centuries to come.

Patrick M. Garry is professor of law at the University of South Dakota. He is author of Limited Government and the Bill of Rights and The False Promise of Big Government: How Washington Helps the Rich and Hurts the Poor.

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Principle of Freedom of Speech in a Marketplace of Ideas

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Guest Essayist: Patrick M. Garry

 

Essay Read By Constituting America Founder, Actress Janine Turner

 

The phrase marketplace of ideas has for more than a century been used to describe the nature and purpose of the First Amendment’s free speech protection. This phrase was famously articulated by Justice Oliver Wendell Holmes, Jr. in his dissenting opinion in the U.S. Supreme Court case of Abrams v. United States.

The issue in Abrams was whether the First Amendment protected Jacob Abrams from prosecution under the Espionage Act for distributing leaflets criticizing the dispatch of American troops to Russia and calling for a general strike in the U.S. The Supreme Court upheld Abrams’ conviction, ruling that his behavior posed a “clear and present danger” to the national security interests of the United States. Justice Holmes, however, disagreed. In a dissent that would later cast him as a defender of free speech and the First Amendment, Holmes wrote that the “best test of truth” of particular ideas is not the approval of government but the power of that speech “to get itself accepted in the competition of the market.”

Just because speech might be problematic or even contrary to government policy, it should not be prohibited by law, according to Holmes. Instead, the speech’s ability to gain approval in the social marketplace of ideas should determine its worth and staying power, Holmes argued. Only through the open competition of free and unhindered speech can society discover the truth necessary to govern itself. Since the people in a democratic society are the ultimate arbiters of social truth, there must exist a means by which the public can learn and acquire truth. As Justice Holmes recognized, and as courts have subsequently accepted, the best and perhaps only means to acquire truth is through the free exchange of ideas.

It would be nearly a half-century before the Supreme Court would accept the theory put forth by Justice Holmes in his 1919 Abrams dissent. Courts would come to value free speech as both a social and constitutional goal, and government restrictions on speech would be struck down as unconstitutional constraints on the marketplace of ideas. The constitutional protections of speech would not hinge on the government’s evaluation of the value or desirability of the speech.

The marketplace metaphor values free speech because only through open expression can society ever arrive at the social truths necessary for self-government. Consequently, to value truth is to value free speech; for without free speech, there can be no truth.

The enduring legacy of Holmes’ marketplace of ideas metaphor lay in its broadening of the justification for free speech. Prior to Holmes’ Abrams dissent, speech was looked upon as strictly an individual value. Thus, the only justification for protecting speech was the individual interest in being able to say whatever he or she wanted to say. At this point in America’s history, individual freedom to do or say whatever one felt like doing or saying was not highly valued. Social order and stability were far more valued, meaning the good of society prevailed over the interests of the individual. Survival and prosperity meant that individuals had to conform to societal norms.

Through his marketplace metaphor, Holmes demonstrated that free speech was not simply an individual value and that the reason for protecting free speech was not simply to grant unrestricted freedom to individuals. Instead, free speech was a necessary component to an effective and thriving society and nation. Without an open marketplace of ideas, the public could not come to a full and agreed upon appreciation of truth, which was the very foundation of self-government.

This marketplace principle can be violated today when unwanted speech is labeled “misinformation” and then censored.

Patrick M. Garry is professor of law at the University of South Dakota. He is author of Limited Government and the Bill of Rights and The False Promise of Big Government: How Washington Helps the Rich and Hurts the Poor.

 

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Principle of the Separation of Powers, Involving Checks and Balances on Those Powers

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Guest Essayist: Patrick M. Garry

Essay Read by Constituting America Founder, Actress Janine Turner

 

 

The United States Constitution creates a government with three separate branches, each vested with different powers and responsibilities for different functions. This particular structure reflects the doctrine of separated powers. The Framers adopted this doctrine so as to diffuse government power and thereby protect individual liberty from government encroachment. Congress possesses the authority to make laws; the President has the duty of executing those laws; and the courts interpret and apply those laws in cases brought before the judiciary.

By creating three competing branches, the separation of powers scheme uses the power of each independent branch to check and restrain the power of the other branches. In this way, there is a self-executing structure built into the constitutional scheme that restrains any one branch from abusing its power to the detriment of individual liberty.

The Supreme Court has recognized the importance of the separation of powers principle. This principle, according to the Court, “is at the core of American ideology” and is “as fundamental as the vote or representative government.” Separation of powers provides a system of checks and balances, as well as a guard against improvident or impetuous government action. The separation of powers principle seeks to control government power by splitting it among three different functions and branches, with each branch confined to the exercise of its own function and not allowed to encroach on the functions of the other branches.

Separation of powers does more than just accomplish the negative function of preventing abuses of power; it also achieves a number of positive functions. These functions include allowing a wide-ranging political presentation of diverse interests, leading to a broad-based consensus across a diverse republic, as well as promoting the distinctive qualities associated with each branch. Separation of powers helps the government to be deliberative, representative, and accountable. It helps slow down the lawmaking process so that it can be responsive to all the various constituencies in a large democracy. Such a checks-and-balances system makes it more difficult for the government to act unless there is widespread agreement that it should do so.

The separation of powers principle reflects the Framers’ fear of centralized power, which in their experience had led to tyranny. In this respect, the Framers were very much influenced by the earlier writings of French philosopher Baron de Montesquieu, who wrote that “when the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty.” Throughout its deliberations, the Constitutional Convention remained steadfast in the belief that governmental power should be separated and balanced among the three branches of government, as recommended by Montesquieu.

The Framers foresaw that the separation of powers structure, by placing impediments in the path of the political process, would help to restrain the excesses of lawmaking. Although this structural bias in favor of the status quo would naturally defeat a few good laws, it would even more importantly prevent a number of bad ones.

The judicial enforcement of separation of powers was greatly weakened during the New Deal of the 1930s, when the courts acquiesced in the dramatic expansion of the federal executive branch’s powers and activities. To combat the Great Depression, the New Dealers in President Franklin Roosevelt’s administration significantly expanded the administrative state. This expansion contradicted traditional notions of separation of powers, since the newly empowered administrative agencies combined all three functions in their rulemaking and adjudicative activities. Contrary to the beliefs of the founding era, strong executive government was seen not as a threat to liberty but as a savior of society, and the agents of that saving power were the administrative agencies. But to enable those agencies to perform that role, the Court had to sanction the granting of wide, virtually undefined powers. The Court also had to approve the combination of all three functions within each individual agency. Not surprisingly, the rise of the administrative state meant the corresponding decline of the separation of powers principle.

As a result of the erosion of separation of powers during the New Deal period, the administrative state has grown to the point of being called the “fourth branch” of government. However, contrary to the idealistic hopes of the New Dealers, agencies are often rigidly bureaucratic and cravenly political. But out of perceived necessity for meeting the demands of modern society, the courts have accepted, as a constitutional matter, the administrative state. Moreover, it is perhaps not surprising that – the more the administrative state contradicts separation of powers principles – the more abuses of power and infringements on liberty occur.

Patrick M. Garry is professor of law at the University of South Dakota. He is author of Limited Government and the Bill of Rights and The False Promise of Big Government: How Washington Helps the Rich and Hurts the Poor.

 

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Principle of Limited Government: Why the United States Constitution Is Designed To Prevent Centralized Power

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Guest Essayist: Patrick Garry
Signing of the Constitution - Independence Hall in Philadelphia on September 17, 1787, painting by Howard Chandler Christy, on display in the east grand stairway, House wing, United States Capitol.

Essay Read by Constituting America Founder, Actress Janine Turner

 

 

The principle of limited government greatly inspired the drafting of the United States Constitution. Indeed, the framers’ desire to restrain the new federal government was one of the primary design features of the Constitution. Not only was the U.S. Constitution the first written constitution to govern a democratic republic, but it was also the first constitution to be structured according to the goal of limiting the new government it was creating. Consequently, the notion of limited government was a uniquely American contribution to the science of political governance.

The failure of the Articles of Confederation—the first form of national government adopted following the War of Independence—gave rise to calls for a constitutional convention to draft a new design for a federal government. A main reason the Articles failed so quickly was that the national government it created was too weak—a weakness that reflected the deep-seated mistrust of central governments harbored by Americans in the wake of their experience with a British government that had used its power to deprive the American colonists of their liberty.

Although the first goal of the constitutional framers was the creation of a republican form of government which included a stronger national government than had existed under the Articles, the immediately subsequent goal was to build into the new constitution various structural limitations, preventing the federal government from overstepping its proper role. This belief in limited government stemmed from the framers’ opposition to the patterns of statism, absolutism, and totalitarianism existing in the eighteenth-century world. Consequently, within the Constitution, the framers designed an array of checks on federal power. These checks included, for instance, a separation of powers creating three separate branches of government, each of which could help check and restrain abuses committed by the other branches, as well as a federal government possessing only enumerated powers.

Even though the U.S. Constitution establishes a strong and independent federal government, it does so through a scheme of enumerated powers.  The federal government only possesses those powers specifically granted it by the Constitution. Unlike the state governments, which possess plenary power to begin with and which the state constitutions must then limit or restrain, the national government under the U.S. Constitution possesses only those powers specifically granted to it. If the Constitution does not grant a power, then the federal government does not possess that power.

The framers held a cautious and skeptical view toward concentrations of government power. The framers worried more about empowering a federal government that could use its power to deprive people of their liberty than about not giving that government enough powers to swiftly address any political or economic crisis that might arise. They were more concerned about a government doing something wrong than about a government with enough power to be able to always do what was right. Therefore, the scheme of limited government built into the Constitution served as a means of safeguarding liberty, since a government limited in power would be less able to exercise power in abusive or oppressive ways.

To the framers, the principle of limited government was an even greater protection for liberty than were the freedoms outlined in the Bill of Rights. This was because a limited government would be a general protection for all types of liberty, whereas the Bill of Rights protected only a few specified liberties. While individual rights protect against particular acts of government abuse, structural provisions like limited government protect against systemic and continuing government abuses resulting from a lack of effective limits on that power. Indeed, an impetus for passage of the Bill of Rights was the belief that the original Constitution did not do enough to limit the power of the new federal government.

For the first century and a half of the nation’s existence, limited government was widely supported as a constitutional principle. But in the 1930s, as President Franklin Roosevelt’s New Deal agenda greatly expanded the scope and authority of the federal government to fight the consequences of the Great Depression, a belief in limited government waned significantly, especially among liberal activists who wanted the federal government to assume a much larger role in shaping society.   Although the Supreme Court initially opposed this contradiction to the limited government principle, it eventually caved to political pressure and nearly abandoned this principle. As a result, the federal government has grown substantially since the 1930s. With its vast array of administrative agencies, the present federal government hardly seems reflective of the limited government principle originally embodied within the Constitution.

Over the past century, political pressures have pushed the expansion of the federal government, to a size and scope far beyond what the framers foresaw. This pressure can be seen whenever some crisis arises that appears as if it can only be solved by a national government unrestrained in the amount of debt it can accumulate. But as the framers foresaw, and as is so often witnessed today, a larger and more powerful federal government is also more prone to abuses and deprivations of liberty.

Patrick M. Garry is professor of law at the University of South Dakota. He is author of Limited Government and the Bill of Rights and The False Promise of Big Government: How Washington Helps the Rich and Hurts the Poor.

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The Constitutional Wisdom Ignored by the New Deal and Great Society

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Guest Essayist: Patrick Garry


Numerous economic downturns and crises plagued America during the first one hundred fifty years of its existence. The nineteenth century witnessed repeated depressions. Undoubtedly, the Great Depression of the 1930s amounted to the most severe economic crisis ever experienced in the United States. As with all previous crises, however, the country recovered from the Great Depression and lifted the rest of the world into an age of greater prosperity.

Economically, America has transcended the Great Depression, and did so relatively quickly. Constitutionally and politically, however, the Great Depression still haunts the United States. This haunting legacy arose because of actions the federal government took in response to the world-wide economic events of the 1930s. The New Deal agenda pushed by President Franklin D. Roosevelt and his Democratic Party permanently changed the nature and role of the federal government, as well as the public’s expectations and demands on that government.

Contrary to one hundred and fifty years of political and constitutional experience, the New Dealers decided to combat the Great Depression by concentrating huge amounts of power within the executive branch of the federal government, leading to the bureaucratic behemoth that now characterizes the administrative state. This administrative state has produced a government in which individual citizens have little voice or control, thereby leaving that government with little accountability to the public. The administrative state has produced staggering, incomprehensible deficits that will at some point leave some future generation with an insurmountable burden. Because of its size, its distance from individual citizens, and its unaccountable bureaucrats, the administrative state has also spawned a deepening culture of political corruption within the federal government. None of these occurrences, however, would have surprised the constitutional Framers, who tried very diligently to protect against such occurrences.

The United States Constitution was a unique document. It created an exceptional form of government, unknown in the rest of the world at that time. Among its many exceptional features, one of the most important was its power-limiting feature. Although the Constitution established a strong national government, it also imposed an array of limitations on that power to prevent the federal government from becoming so strong that it could threaten the liberty of its citizens. As the Framers foresaw, a government without adequate controls could easily accumulate the kind of power that would then insulate that government from public accountability, providing the conditions rife for corruption and abuses.

Three characteristics of the U.S. Constitution that would later be ignored and even contradicted by the New Deal promoters are: first, the Constitution’s enumerated power scheme, in which only the powers specifically outlined in the Constitution are granted to the federal government; second, the separation of powers scheme, in which the power of each branch of the government – e.g., executive, legislative and judicial – is checked by the other branches; and third, the federalism scheme of the Constitution, in which the power of the federal government is limited by the role and power of the states. By concentrating unprecedented powers in the federal executive branch, the New Deal violated the federalism and the separation of powers dictates of the Constitution. And by giving to that newly empowered central government new and unprecedented authority over subject areas not enumerated in the constitutional delegation to the federal government, the New Deal violated the enumerated powers scheme of the Constitution.

Not only did this constitutional contradiction swell the size and power of the federal government beyond the wise forecasts of the Framers, it also restricted then the vibrancy of self-government in the United States. As the Framers foresaw, self-government thrives when the public engages in its government and actively directs that government. But as the Framers also foresaw, such engagement requires accountability – and accountability is best achieved when government is closer and more open to the public. This closeness and openness characterize state and local governments, but it was just those governments that the New Deal restrained by giving such vast powers and authority to the federal government.

Many of the problems with the federal government today would never occur in families or small business or state or local governments. That is because in those venues there is a greater transparency and accountability. While there might be corruption in state governments, it is nowhere near the scale of corruption at the federal level. The Framers knew this; and therefore to save the federal government from itself, the Framers imposed limitations on the power of that government, because the Framers knew the temptations for excess and abuse that would be created by unlimited power.

The Great Society programs of the 1960s and 1970s replicated the New Deal arguments for more power to be concentrated in the federal executive branch. And not surprisingly, many of the Great Society programs have descended into corruption and waste. The federalism revolution waged by the Supreme Court in the 1990s tried to revive the Constitution’s limited government scheme. Even President Bill Clinton in 1996 admitted that “the era of big government was over.” However, with the 2008 recession, the Affordable Care Act and the covid pandemic, big government came roaring back with a vengeance. Whether this unintended turn in America’s constitutional history can be meaningfully addressed, whether a lasting reform of the New Deal and Great Society distortions of constitutional structure power can be achieved will depend on America’s lasting commitment and embrace of the Framers’ wisdom.

 Patrick Garry is professor of law at the University of South Dakota and is the author of Limited Government and the Bill of Rights and The False Promise of Big Government: How Washington Helps the Rich and Hurts the Poor.

 

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South Dakota: Admission as a New State and Its 1889 Constitution

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Guest Essayist: Patrick M. Garry

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South Dakota was admitted to the Unites States November 2, 1889 as the fortieth state. In the same year of 1889, the South Dakota State Constitution in use today was adopted.

On March 2, 1861, President Buchanan signed the bill that created the Dakota Territory. Within this territory were included the present states of North and South Dakota, Montana and Wyoming. After creating the Dakota Territory, the federal government paid relatively little attention to it, given the preoccupation with the war. But as soon as there was sufficient population in the territory, the settlers in the Dakota Territory began taking steps to achieve statehood. Starting in 1868, efforts intensified toward the admission of Dakota, either as a single state or two different states.

Even though the Dakota Territory was being settled during the Civil War, South Dakota did not become a state until 1889.  This long delay in the pursuit of statehood stemmed from political conflicts at the national level.  During the 1880s, for instance, the Democratic Congress opposed statehood for South Dakota, which was seen as a strongly Republican-leaning state. The Democratic Congress resisted admitting a state that was certain to send two more Republicans to the United States Senate. Consequently, the congressional debate on the issue of South Dakota statehood rested largely on a partisan basis.

However, the obstacles to statehood for South Dakota largely disappeared when Benjamin Harrison won the presidential election of 1888, beating Grover Cleveland. President Harrison had been a strong supporter of statehood for South Dakota during his time as senator from Indiana. At the same time, the Republican Party won control of Congress, and the national Republican Party platform of 1888 had stated that South Dakota should be immediately admitted as a new state.

The statehood bill was passed in February of 1889 and authorized the state constitutional convention of 1889, which was to be the first constitutional convention in South Dakota legally recognized by Congress.  The resulting constitution was approved by the people at an election held in October. And on November 2, 1889, President Harrison issued his proclamation admitting South Dakota as a state.

Although the 1889 convention produced the Constitution in effect today, it was not the first constitutional convention convened by statehood advocates.  The first constitutional convention for South Dakota took place in 1883, even though that convention was not authorized by Congress.

The 1883 constitution reflected the political concerns of the times.  South Dakotans sought statehood at a time when railroads and corporate conglomerates played powerful roles on both the state and national scene.  Although the railroads greatly contributed to South Dakota’s development and population, they also threatened to corrupt state legal and political processes.

At the 1883 convention, there were concerns that corporations should pay the same rate of taxes as private individuals, should not be allowed to consolidate, and should receive no aid that is not given private parties. The Convention also required the legislature to regulate railroad rates and prohibit unjust rate discrimination. The convention delegates feared that railroads or other large corporations could exercise excessive influence over the legislature.

A second constitutional convention convened on September 8, 1885.  This convention has been called the most important ever held in South Dakota, insofar as the constitution produced by that convention, with a few minor changes, became the constitution authorized by Congress and ratified by the voters in 1889.

The South Dakota statehood bill passed by Congress in February of 1889 necessitated a third constitutional convention so as to make the 1885 constitution conform to federal law.  By the time the 1889 convention occurred, the Farmers’ Alliance of Dakota Territory was playing a major political role. With declining prices for farm crops and higher production costs, many farmers had fallen deep in debt. For political relief, they turned to the Alliance, which played an influential role in securing the Initiative and Referendum provisions in the Constitution.

Perhaps the most unique feature of the South Dakota Constitution was its provisions on the Initiative and Referendum. South Dakota was the first state in the Union to adopt the Initiative and Referendum, which was later adopted by dozens of other states.

Whereas the Initiative allows the public to bypass the legislature and directly pass new laws in a general election, the Referendum allows the public to repeal a law previously enacted by the legislature. Initiative and Referendum was one of the hallmark causes of the Populist movement of the late nineteenth century.

The Populist movement promoted the Initiative and Referendum as an essential means of achieving economic reforms aimed at controlling the political power of railroads and eastern banks. South Dakota was the first state in the nation to have an active Populist Party, which in 1892 made the Initiative and Referendum a central part of its platform.

The campaign to bring Initiative and Referendum to the Dakota Territory was fueled by the economic events of the time, with Dakota farmers attributing declining commodity prices to the manipulations of railroads and eastern banks, and believing that rural interests would be better able to control those outside entities through the Initiative and Referendum process.

Patrick Garry is professor of law at the University of South Dakota and is the author of Limited Government and the Bill of Rights and The False Promise of Big Government: How Washington Helps the Rich and Hurts the Poor.

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Tenth Amendment to the U.S. Constitution: Purpose for Limited Federal Powers, Meaning for State and Local Government – Guest Essayist: Patrick M. Garry

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The Constitution establishes a dual governmental structure consisting of state and national governments.  Although its purpose was to create a strong national government, the Constitution also sought to preserve the independent integrity of the states.  This bifurcated system of power was codified in the Tenth Amendment, which divides sovereign power between those delegated to the federal government and those reserved to the states.  The Tenth Amendment prohibits the national government from exercising undelegated powers that will infringe on the lawmaking autonomy of the states.

The framers believed that by protecting the pre-existing structure of state governments the Constitution could safely grant power to the national government, since the former would independently monitor the latter’s exercise of power.  Similar to the way in which the colonial governments had mobilized opposition to oppressive acts by Parliament, the state governments would serve as vigilant watchdogs against abuses committed by the federal government.

The doctrine of federalism refers to the sharing of power between two different levels of government, each representing the same people.  The founding generation was so committed to federalism that even a nationalist like Justice Marshall acknowledged in McCulloch v. Maryland that the national government was “one of enumerated powers” and could “exercise only the powers granted to it.”  Indeed, federalism concerns were so important to the Founders that nearly all the arguments opposing the new constitution involved the threat to state sovereignty.

Although there is no single ‘federalism’ clause in the Constitution, the Tenth and Eleventh Amendments are often the focus of the Court’s federalism decisions.  In the constitutional scheme, federalism provides an avenue for local self-determination, in addition to a vertical check on government oppression, with the states serving as a localized control on the centralized national government.  Under the framers’ view of federalism, as expressed in the Tenth Amendment, the national government would exert supreme authority only within the limited scope of its enumerated powers; the states meanwhile would exercise the remainder of sovereign authority, subject to the restraint of interstate competition from other states.

Because the framers took for granted the sovereign powers of the states, the Constitution is somewhat one-sided in its references to governmental authority.  It explicitly lists the powers of the federal government; but to the extent it defines state powers, it does so primarily through negative implication, by setting out the limited constraints on those powers.  Furthermore, the Tenth Amendment, though not granting power to any governmental entity, recognizes that any and all powers not granted to the federal government have been reserved to the states.

During the nineteenth century and throughout the early twentieth, the Court adhered to a federalist vision, under which it often used the Tenth Amendment to limit federal power.  But after 1937, the Court switched positions, adopting a nationalist model.  In the wake of the New Deal, the expansion of federal powers increasingly eroded the Tenth Amendment protections, and the Court from 1937 to roughly the 1990s largely ignored the Tenth Amendment.  During that time, only one federal law was held to violate the Tenth Amendment.

The year 1937 is seen as a transformational year in the Court’s approach to the exertion of national power; in that year, President Roosevelt sent to Congress a bill that would authorize him to appoint one new Supreme Court justice for each sitting justice who had served ten years or more and had not retired within six months after his seventieth birthday.  Under this ‘court-packing’ plan, the number of Supreme Court justices was to be raised to fifteen.  Whether the Court was influenced by this bill and its likely passage cannot be known for sure; but shortly thereafter, the Court began upholding New Deal legislation of the kind that had previously been struck down.  Initiating a new era of constitutional interpretation, the Supreme Court endorsed a permanent enlargement in the scope of federal power, at the expense of the states.  Under this relaxed posture toward congressional power, the Court would later uphold a wide range of statutes over the next fifty years, including purely local incidents of loan sharking.

After almost sixty years of dormancy, federalism made a constitutional comeback in the 1990s.  In its federalism revolution, the Rehnquist Court reinvigorated the doctrine of federalism and restored power to the states.  Under the Court, there occurred a slow but steady trend towards curbing the power of the federal government and using the Tenth Amendment to safeguard the states from overreaching by the federal government.

This revival of federalism, one of the country’s most basic constitutional arrangements, became the hallmark identity and achievement of the Rehnquist Court.  And this federalism revolution, which fostered a new respect for the sovereignty of the states, also revived the Tenth Amendment as a limit on congressional power.

The Tenth Amendment continues to be a constitutional force and was instrumental in National Federation of Independent Business v. Sebelius (2012), the Supreme Court’s noteworthy decision on the Affordable Care Act preserving state autonomy.

Patrick Garry is professor of law at the University of South Dakota and is the author of Limited Government and the Bill of Rights and The False Promise of Big Government: How Washington Helps the Rich and Hurts the Poor.

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Direction Of Power, Congress, And The Rise Of the Progressive Administrative State

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Guest Essayist: Patrick M. Garry

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The progressive administrative state now seems entrenched in contemporary American political governance.  While progressivism first arose on the political scene in the late nineteenth century, and the administrative state came into being with the sudden increase in centralized government during the 1930s, the two came together only later in the twentieth century to form what is now known as the progressive administrative state.

The term administrative state refers to the reach and power of the vast web of administrative agencies that populate the executive branch of the U.S. government.  Administrative agencies, directed by the executive branch and run by unelected bureaucrats, possess the power to issue legally binding rules and adjudicatory orders.  The heads of agencies may be appointed by the President, and through these heads the agency may be influenced by the President or by Congress, but otherwise the agencies have no elected officials and sometimes little political accountability.  The rules issued by the wide array of federal executive agencies far outnumber the laws democratically enacted by Congress.

The term progressive refers to a political philosophy that favors an ever larger federal government that will assume ever more authority over social and individual life.  Progressives believe that modern life is so complex that it necessitates a pervasive central government run by elites who can direct society with enlightened expertise.  Progressivism mistrusts traditional cultural values and non-governmental social institutions, such as religion and local communities and civic voluntary organization, and believes that the private sector is the source of injustice.  Thus, a strong central government is needed as an antidote or override to those other institutions.

Since the 1960s, progressivism has also referred to a set of substantive ideological beliefs characterizing a leftist political agenda.  Thus, the progressive administrative state has used the power of big government to push progressive political goals.

The progressive administrative state has its historical roots in the New Deal agenda of the 1930s.  Progressives believed that only an unrestrained federal executive branch could remedy all the effects of the Great Depression, as well as engineer society so that such a calamity would never again occur.  The progressive mindset saw limited government, the private-sector economy, and the complex web of social and cultural institutions that characterized America since its colonial beginnings as means of oppression.  To progressives, individual liberty gave way to the power of big government to engineer society for individuals who do not have the expertise to adequately govern themselves.  Government freedom trumped the freedom of the individual.

The New Deal agenda, powered by progressive ideas, brought about a dramatic expansion of the federal government.  This expansion occurred through an increase in the size and reach of the administrative state, accompanied by the birth of many new federal agencies.  But underlying all this expansion was Congress, since only through congressional laws creating, empowering and funding administrative agencies could such an expansion occur.  In rulings that have endured to the present, the New Deal era Supreme Court held that Congress could delegate unlimited power to the administrative state.

Following the New Deal, the administrative state witnessed another significant expansion during the 1960s and 1970s, with the Great Society programs being administered by new and enlarged agencies.  During one of the most liberal periods in American political history, Congress enabled the federal executive branch, through its administrative agencies, to pursue a progressive agenda that steadily enlarged the sphere of the national government, while shrinking the social space left to all other non-governmental institutions.  A somewhat similar expansion occurred decades later, during the presidency of Barack Obama.

Although Congress plays an essential role in fueling the administrative state, primarily through its funding of the executive branch, for the most part the personnel and operations of the progressive administrative state have remained insulated from Congressional oversight.  This is shown by the fact that even when Congress is controlled by a party populated by members who advocate a less expansive, more accountable federal bureaucracy, Congress has been unable to decrease the size or reach of the administrative state.  The administrative state has become so intertwined in national life, so involved in so many aspects of social life, that any attempted cutback runs the risk of shutting down the government altogether.

Various scandals and controversies in recent years have shown how politically-biased the progressive administrative state has become.  The Internal Revenue Service, for instance, used its vast power to target conservative organizations that might be opposed to the progressive administrative state.  The Consumer Financial Protection Board’s acting head refused to recognize or yield to the agency head appointed by President Trump.  The Veterans Administration actively covered up its failures to provide timely and adequate care to veterans, all the while doling out large pay increases to agency officials.

The progressive administrative state has undermined vital non-governmental social and cultural institutions.  The Great Society programs of the 1960s and 1970s, for instance, eroded the family and neighborhood.  Federal land and environmental agencies have eroded the power of local government.  And more recently, the agencies implementing the Affordable Care Act directly attacked religion by forcing religious organizations to act against long-held beliefs.  But as all these different aspects of society are undermined, the progressive administrative state grows ever more powerful and becomes the only institution on which individuals can rely for support.

Patrick Garry is professor of law at the University of South Dakota and is the author of Limited Government and the Bill of Rights and The False Promise of Big Government: How Washington Helps the Rich and Hurts the Poor.

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Federalism: Legislative Power Of Congress And The State And Local Levels

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Guest Essayist: Patrick Garry

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Following ratification of the U.S. Constitution, political philosophers described the federalism inherent in the document as America’s hallmark contribution to the eighteenth century science of political governance.

Defined as a system of dual sovereignty, federalism envisions a constitutional order in which national and state governments each possess their own sphere of autonomy and authority.  Whereas the concept of separation of powers operates on a horizontal level, ensuring the autonomy of the different branches (legislative, executive and judicial) within any one level of government (state or national), federalism operates vertically, ensuring the autonomy of those different levels.  Both federalism and separation of powers act as a coordinated system of checks and balances.  Separation of powers checks the various branches, while federalism checks the different levels of government.  Under federalism, autonomous states with their own sphere of power can help prevent a national government from abusing its power.

American federalism was not so much a deliberate political theory as it was a development of history.  Throughout the colonial period, federalism evolved out of necessity.  Because of the great distance between London and the American colonies, local government arose to fill the void.  While the British parliament provided centralizing governance, local and colonial governments in America provided the day-to-day governance.  This scheme not only allowed the colonists to address their own local concerns, it supplied a political experience and structure that would be invaluable once independence from England was declared.  Consequently, when America designed its own constitutional structure, federalism naturally formed a vital foundation of that structure, ensuring the dual sovereignty of state and national governments.

Although there is no specific federalism provision in the U.S. Constitution, just as there is no specific separation of powers provision, federalism pervades the constitutional structure, which recognizes the autonomy of the states while also limiting the ability of the federal government to infringe on that autonomy.  The closest to a specific federalism provision in the U.S. Constitution is the Tenth Amendment, which states that all powers not specifically granted to the federal government are reserved to the states.

The U.S. Senate, prior to the Seventeenth Amendment providing for popular election of senators, once reflected federalism concerns.  Under the original Constitution, the House of Representatives was directly elected by the voters, but the Senate was chosen by the state legislatures.  This system gave states a greater voice in the makeup of the federal government.  It also created a sharper distinction and hence balancing function between the state-chosen Senate and the popularly-elected House.

Aside from its historical basis in the American experience, federalism also served several important values.  Federalism provides a check on the abuse of national power.  It also supports the diversity of a sprawling nation.  Diverse state and local populations can shape local policy to their particular interests, whereas the federal government can only enact a one-size-fits-all policy for the entire nation.

Federalism enhances political accountability and trust.  The smaller the governmental unit, the closer it is to the electorate and the more accountable it is.  This higher degree of accountability in turn builds a higher level of trust in government.  And finally, federalism creates a more flexible system of political governance, since smaller government units are more able to experiment in their policies.

From its colonial beginnings until the early twentieth century, the American political system rested on a strong belief in federalism.  But this abruptly changed in the 1930s with Franklin Roosevelt’s New Deal agenda, which greatly boosted national power at the expense of the states.  Congress acquiesced in this expansion of the national executive branch, as did the Supreme Court, which essentially abandoned one hundred and fifty years of constitutional jurisprudence in allowing such an expansion.

For nearly a half-century after this New Deal constitutional revolution, the Court continued to disregard the federalism mandates of the Constitution.  Not until the mid-1990s did the Court reconnect with federalism.  Dubbed by the media as “the federalism revolution,” the Court’s revival of constitutional federalism coincided with President Bill Clinton’s assertion that “the era of big government is over.”  Nonetheless, the Court’s “federalism revolution” attracted intense opposition from the advocates of an all-powerful central government.  These advocates opposed federalism because of the potential limits it places on the unrestrained growth of the national government.

In U.S. v. Lopez, the Court upheld federalism by ruling that Congress could not invade areas traditionally controlled by state and local governments.  The Court struck down a federal law prohibiting guns within a certain distance of a school, ruling that schools were historically state and local concerns.  This decision contrasted with the New Deal-era decision in Wickard v. Filburn, where the Court ignored all distinctions between local and national.  In Wickard, the Court held that a farmer’s growing of wheat on his own land for his own use constituted an act of interstate commerce legitimately regulated by Congress.

Federalism not only limits the reach of the national government, it also allocates the use of legislative power among the different levels of government.  Legislative power is shared through a system of dual sovereignty between state and national governments, and Congress cannot use its power to threaten the autonomy of the other levels of government.

Patrick Garry is professor of law at the University of South Dakota and is the author of Limited Government and the Bill of Rights and The False Promise of Big Government: How Washington Helps the Rich and Hurts the Poor.

 

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Bill Of Rights: Placing Limits On Congressional Governing – Part 3

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Guest Essayist: Patrick Garry

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

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

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

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

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

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

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

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

Patrick M. Garry is Professor of Law at the University of South Dakota.
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Articles Of Confederation – What The Founders Thought Of The Articles Of Confederation And Why They Did Not Last

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Guest Essayist: Patrick Garry

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

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