Federalism On Life Support: The Affordable Care Act And How It Affects You – Guest Essayist: Troy Kickler

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Criticism abounds regarding President Barack Obama and executive overreach. To name one example, the Affordable Care Act (ACA), commonly known as “Obamacare,” has raised the ire of many Americans. Expansive government and centralized approaches to political issues, admittedly, started before the Obama administration, but current executive overreach has accelerated the size of the national government and threatens individual liberty.  Various administrative divisions, whether classified as executive agencies or executive departments, such as the Environmental Protection Agency and the Department of Education, have been scrutinized, too. Through “the administrative state,” what some have labeled the “fourth branch of government,” the executive branch seemingly continues to have its fingerprints on more and more aspects of American lives. Read more

Thursday, June 13, 2013 – Essay #84 – What Good’s a Constitution? by Winston Churchill – Guest Essayist: Troy Kickler, Ph.D., Founding Director, North Carolina History Project and editor of www.northcarolinahistory.org

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It seems today that many Americans wrongly perceive the Constitution as a roadblock on the way to a better America.  Not too long ago during a dinner conversation, this unfavorable view of the Constitution was expressed to me.  The person had overlooked the enduring qualities of the document–qualities that have allowed freedom to flourish and have kept tyranny in check.

In “What Good’s A Constitution,” former British Prime Minister Winston Churchill reminds readers that the American Constitution has been the “shield of the common man,” and its framework and provisions reveal that a government exists for individuals.  Individuals do not exist for the government.  Churchill wrote the 1936 article in an era in which Fascist dictatorships had emerged in Italy and Germany and Russia’s Communist experiment Read more

March 24, 2011 – Article I, Section 08, Clause 05-06 of the United States Constitution – Guest Essayist: Troy Kickler, Founding Director of North Carolina History Project and Editor of northcarolinahistory.org

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Article 1, Section 8, Clauses 5-6

5:  To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

6:  To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

When the U.S. Constitution was drafted at the Constitutional Convention of 1787 and then submitted to the states to ratify, convention delegates attempted to correct what they considered to be weaknesses in the Articles of Confederation.  They worked to strengthen the national government’s role in monetary policy and eliminate factors that might prevent a unified American economy, with the states working in concert.  Three steps to achieve those goals included the clauses pertaining to the coinage of money, a standard of weights and measurements, and the punishment of counterfeiting

Under the Articles of Confederation, the national government and the states had the authority to coin money.  But in Article 1, Section 8, the enumerative article that gives certain powers to the United States government, the Constitution specifies that Congress have the exclusive right to coin money.

During the Revolutionary War (1776-1783), states had accumulated much debt and some had difficulty paying for their war costs.  As a result, state governments issued bills of credit to provide a form of debt repayment.  Meanwhile during the 1780s, inflation started soaring.  The issuance of paper money, North Carolina Founder Hugh Williamson writes in his 1788 essay, “Remarks on the New Plan of Government,” contributed to a ruinous economy and a loss of honor on the global stage.  Convention delegates, therefore, included the coinage clause as a means to stop inflationary measures and bills of credit that abounded across the states.  (Another clause–Article 1, Section 10–prevents states from issuing bills of credit and paper money.)

Although paper money is commonplace in today’s world, it is absent from Article 1, Section 8.  The Founders were familiar with the practice of printing money and more than a few had definite opinions regarding the practice.  Some scholars have suggested and even argued that its omission indicates that Congress does not have the authority to print paper money or issue bills of credit.  A series of Supreme Court cases in the late 1800s, including Knox v. Lee (1871) and Julliard v. Greenman (1884), however, expanded the government’s role in monetary policy; the Court ruled that the power was inherent in a sovereign government.

In 1787, convention delegates also included the weights and measurements clause to promote uniformity in trade.  Allowing states to separately value foreign currency and create individual exchange rates, writes Joseph Story in Commentaries on the Constitution (1833), invited “infinite embarrassment and vexations in the course of trade.”  A uniform system ensured national honor and also lessened the chances that the innocent would be subjected to “the grossest frauds.”  Indeed, a fixed standard removes confusion in the market place and limits the efforts of the deceitful.

The Framers also believed that a Congressional authority to value foreign coin helped ensure uniformity in trade.   In Federalist 42, James Madison feared that the “proposed uniformity in the value of the current coin might be destroyed by subjecting that of foreign coin to the different regulations of the different States.”  To Madison, the clause was a needed corrective.  It reduced, if not eliminated, monetary confusion and bolstered the American economy.

In the essay, Madison also links the constitutional provision for giving the national government the authority to punish counterfeiting with the weights and measurements clause.  Both were necessary to secure the value of American coin and eliminate confusion in trade.

Some scholars have contended that the counterfeiting clause is superfluous; the authority to punish counterfeiting is inherent in the power to regulate coinage, the argument goes.   Legal scholar David F. Forte, however, points out that the Framers included it for three reasons: to distinguish counterfeiting from treason, as it had been considered in England; to ensure that Congress had authority over international incidents on American soil that involved counterfeiting of foreign currency; and to ensure national supremacy in monetary policy.

The coinage, weights and measurement, and counterfeiting clauses solved various commercial and monetary problems, and they eliminated confusion in market places by enumerating certain powers to the national government.   They also were symbolic, buttressing federal supremacy in monetary policy.

Troy Kickler, Ph.D., is the Founding Director of North Carolina History Project and Editor of northcarolinahistory.org

May 28, 2010 – Federalist No. 23 – The Necessity of a Government as Energetic as the One Proposed to the Preservation of the Union, From the New York Packet (Hamilton) – Guest Bloggers: Troy Kickler, Ph.D., Director of the North Carolina History Project and Daren Bakst, J.D., L.L.M., Director of Legal and Regulatory Studies at the John Locke Foundation

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Friday, May 28th, 2010

Federalist #23

When Alexander Hamilton attended the 1787 Constitutional Convention in Philadelphia, he was thirty-six years old.  Despite his young age he was a leading statesman, who was knowledgeable not only regarding current events at home and abroad but also the classics and the historical lessons that they contain. The future, first U.S. Secretary of the Treasury, Hamilton incorporated his political observations and knowledge into The Federalist.

Hamilton penned more than half of The Federalist essays.  In them, he pointed out the defects of the Articles of Confederation and argued that the Constitution and the powers that it enumerated to the national government were necessary for the Union’s survival.  To remain under the Articles, Hamilton contended, meant certain death for the Union, for the states would continually act in their self-interest and ignore the Union’s interest.  Laying the foundation for his reasoning in subsequent commentaries (24-29), the New York lawyer put forth this particular argument in Federalist 23: “The Necessity of a Government as Energetic as the One Proposed to the Preservation of the Union.”

When debating Anti-Federalists–those who questioned or opposed the Constitution’s ratification–Hamilton and other Federalists used the word “energetic” to describe a government that had power to fulfill its given responsibilities such as providing for a national defense.  An “energetic” government was not one that encroached on individual rights.  It meant simply giving life to a dormant national government and allowing it to exercise and fulfill its responsibilities.

In Federalist 23, Hamilton asks what are the proper duties of a national government.  He contends they are providing for the common defense, preserving public peace, regulating interstate commerce and foreign trade, and conducting foreign affairs.  For the remainder of the essay, Hamilton emphasizes why it is essential for the national government to provide for the common defense and what means are necessary for it to ensure the Union’s longevity.

To charge someone with a responsibility yet not empower them to perform their duty is imprudent.  That is what Hamilton believed.  In Federalist 23, he writes that if the national government is given the task of providing for the common defense then it should have the necessary authority to do so.  Even the framers of the Articles, Hamilton points out, understood this necessity: they allowed Congress to ask the states for unlimited requests for men and money to wage war; however, they erroneously trusted states to provide adequate goods and munitions and men for the national government to use at its discretion.  States many times ignored requests.

The assumptions of the framers of the Articles, Hamilton declares, were “ill-founded and illusory,” and he claims that states worked strictly for their self-interests. To make the Union last, a change in governmental structure, Hamilton contends, was imperative: power and the means necessary must be given to the national government to provide for a common defense.  To meet this particular end, Hamilton argues that the federal government should, in effect, bypass the states and “extend the laws of the federal government to the individual citizens of America.”

In regards to national defense, Hamilton believes it is “unwise and dangerous” to not give the national government power to provide for a common defense: the powers “ought to exist without limitation, because it is impossible to foresee or define the extent and variety of national exigencies, or the correspondent extent and variety of the means which may be necessary to satisfy them.” He reminds his political opponents that to withhold such means and power from the national government is counterproductive and welcomes national instability.  (Hamilton was aware of the lingering Anti-Federal skepticism and considered many of their objections to be merely nitpicking).

The change in government was needed to preserve national interests, and the proposed federal government was worthy of the people’s trust.  Hamilton and other Federalists believed, write constitutional scholars Colleen A. Sheehan and Gary L. McDowell, that “interest, reputation, and duty would bind the representatives to the Constitution and public opinion.”  That belief is expressed and implied in Federalist 23.

Although Anti-Federalists and Federalists waged a genuine and intense intellectual battle, both were concerned with protecting American liberties.  In many ways, they were champions of freedom and had much in common.  Both considered constitutions essential to the existence of a free society, and both believed that restraints should be placed on government.  Both would be horrified how far many modern-day lawmakers and constitutional theorists have strayed from original intent.

–Troy Kickler, Ph.D., is Director of the North Carolina History Project and Daren Bakst, J.D., L.L.M., is Director of Legal and Regulatory Studies at the John Locke Foundation.

 

June 2, 2010 – Federalist No. 26 – The Idea of Restraining the Legislative Authority in Regard to the Common Defense Considered, For the Independent Journal (Hamilton) – Guest Bloggers: Daren Bakst, J.D., LL.M., Director of Legal and Regulatory Studies at the John Locke Foundation and Troy Kickler, Ph.D., Director of the North Carolina History Project

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Wednesday, June 2nd, 2010

At the start of Federalist No. 26, Alexander Hamilton addresses the challenging balancing act required between legislative power and liberty.  Using this as a jumping off point, he makes the case that the legislature must have the power to provide for the national defense.

While he acknowledges the balancing of interests, he argues that the scales tip toward having strong legislative power when it comes to national defense.  Restraining legislative authority in the area of national defense “is one of those refinements which owe their origin to a zeal for liberty more ardent than enlightened.”

He explains that it would “endanger the public safety” if there were “impolitic restrictions on the legislative authority.”  He goes on to suggest that anarchy would result and the American people would not support such an anarchy.

Hamilton then turns his attention to the question of standing armies during peacetime.  Pointing to England, he explains how it had lived under the rule of monarchs who had almost unlimited power.  After the Revolution of 1688, the monarch’s power to raise armies was drastically reduced.

The only manner in which an army could exist in peacetime was with the consent of the Parliament.  As Hamilton argues, even in England where the desire for liberty during this time was great, the only restraint believed necessary was to prohibit the executive from having sole power to raise armies.

The British revolutionaries who fought for liberty knew that there was a need for troops in peacetime.  There always needed to be troops ready to meet any contingency that faced the nation.  By placing power with the legislature, this was the proper balance between liberty and public safety.

According to Anti-Federalists, in particular Brutus in his “Tenth Letter,” those opposed to standing armies in peacetime were concerned with executives gaining excessive power.  To support this argument, they used Rome and Britain as examples.

In Rome, writes Brutus, Julius Caesar changed “it [Rome] from a free republic…into that of the most absolute despotism.”  In Britain, the armies had been used by Oliver Cromwell to take away the people’s liberty.

Hamilton though counters these concerns by stressing the role of the legislature.  One key protection was the appropriations process.  The legislature must, every two years, vote on whether to allow a military force.  Their constituents could hold them accountable at the ballot box if their actions were inconsistent with their will.

Further, according to Hamilton, state legislatures would protect their citizens.  Hamilton saw a strong federalist system where states fought against the encroachments by the federal government.  States would not simply voice their concerns, but they would be the vehicles by which the citizens would be protected.

Since Hamilton’s time, a key component to the power of state legislatures has been lost. Until 1913, state legislatures had the power to elect Senators.  They were not elected like they are now by a direct vote of the people.  This was a major check that states possessed in preventing excessive national power.

However, under the current system, state governments are mere shadows of what Hamilton envisioned.  This does undercut his argument.  The federal government has become a behemoth with state governments beholden to it due to an over-reliance on federal funds.

Fortunately, the military has never posed a significant threat to domestic tranquility.  This can be attributed to numerous factors, including the legislative check on executive power that Hamilton articulates in Federalist No. 26.  Given our country’s past and current foreign threats, he appears to have been correct in espousing the need for a standing army in peacetime.

– Daren Bakst, J.D., LL.M., is Director of Legal and Regulatory Studies at the John Locke Foundation and Troy Kickler, Ph.D., is Director of the North Carolina History Project.

11 Responses to “June 2, 2010Federalist No. 26 – The Idea of Restraining the Legislative Authority in Regard to the Common Defense Considered, For the Independent Journal (Hamilton) – Guest Bloggers: Daren Bakst, J.D., LL.M., Director of Legal and Regulatory Studies at the John Locke Foundation and Troy Kickler, Ph.D., Director of the North Carolina History Project”

  1. Jace Broadman says:

    So much of what’s in our Constitution is a result of the experiences that our founders had had before — things that worked and things that didn’t. This practical approach to setting up rules makes a big difference. Something as straightforward as the legislature’s role in defense was improved by the trial and error of the founders. I guess this makes me wonder why so many rules and proposed laws today seem to defy this tradition. Cap and Tax and the health care takeover come to mind. Have these worked anywhere before? Why must we be the experimenters?

  2. Susan Craig says:

    I’ve always felt that reform and power are pendulums which never stops at the bottom of the swing in perfect balance. The first, as an example, unions vs. owners, in the late 19th century owners were developing fiefdoms within their spheres so to empower the labor force unions were developed. In government it is liberty vs. order. What is counter intuitive is that reasonable boundaries are necessary to fulfill the promise of the Declaration of Independence for Life, Liberty and the Pursuit of Happiness. Rules like Fences make good neighbors.

  3. Jimmy Green says:

    As with our constitution the legislature does indeed have the power to provide for the national defense in Section 1 article 8 of the constitution. I’m not certain how the Federal Government got around the issue of “no appropriation of money to that use shall be for a longer term than two years.”
    The concern is in today’s world the executive branch is more inclined to initiate war regardless of the congress. I think WWII was the last time the legislature actually declared war as constitutionally required. Today the military is essentially at the Presidents disposal to be sent wherever, whenever. Does this imply the executive branch not the legislative is actually in charge of providing for the common defense? It seems a power vacuum has played out between the two branches and the Congress has surrendered its authorizations for war. This should be troubling to everyone. Besides this issue I do agree that in theory the legislative branch should have what ever power is needed to provide for the common defense. Although I’m not certain how to determine what size of a standing army we truly need.

    As Professor Kickler and Bakst pointed out “The federal government has become a behemoth with state governments beholden to it due to an over-reliance on federal funds”.
    This can be seen quite acutely in what former President Eisenhower termed the military industrial complex.
    Today’s attempts to kill most any major weapons system take a Herculean effort. Not because every weapons system is needed or wanted but simply because the cancellation of said system will involve the loss of thousand of jobs across many states. The congressman of those states will fight tooth and nail to maintain those jobs. And the defense contractors are clever enough to spread the development across as many states as necessary to ensure its survival. Sadly even weapon systems the pentagon does not want are built because the congressman is unwilling to allow the jobs to be lost. This is a detriment to the military and taxpayers.

    The mention of Rome via the Anti Federalist papers is amusing in that it’s hard to see that occurring to our republic currently. However as with Rome the executive power increased until Caesar took control as virtual dictator effectively ending any remnants of a republic. Today as I mentioned a power vacuum has been occurring in which the executive branch is wielding more power simply by taking it from the legislative branch.. This jeopardizes the check and balances needed to maintain a healthy republic especially in times of war. Although I don’t think were close to crossing a Rubicon in America I definitely have my concerns about the average citizens role as seemingly something less then “We the people” .

  4. Jimmy Green says:

    Sorry meant to say Article 1 section 8

  5. Dale Morfey says:

    Congress essentially delegated to the President, via the War Powers Act, the ability to respond to an act of war quickly (which the President already had under the Constitution) and to become involved in military actions that constitute acts of war.

    Congress has tried to delegate away one of their most important functions and We The People have allowed them to do so – to our shame.

    Remember the old saying “An ounce of prevention, is worth a pound of cure.”…? There being a time for everything… now is the time for the pound.

  6. James Roman says:

    James Madison Federalist papers
    Military: country capable of supporting without breaking the bank.
    Population 300 million

    Army 1/100 population= 3 million
    organized Militia 25 * Army= 75 million

    Militia@Large rest of population capable of bearing arms

  7. Barb Zakszewski says:

    Basically, every “war” since the Korean “War”, that the United States has fought in, has been Unconstitutional, in a strict sense. The President can go before Congress as FDR did in WWII, and ask for a declaration of War. But not even the Gulf wars and the current conflicts in the middle East are constitutionally declared wars, because the President has not done his Constitutional duty properly and Congress certainly has not either. No doubt, Congress has abdicated its role, in favor of politics and winning elections. Several of the wars including Korea and Vietnam have been police actions that the spineless United Nations have gotten us involved in. I would love to have seen GW Bush go before Congress after 9/11 and request a declaration of war, but against whom? The Taliban, Al-queda. Terrorists are much more elusive and undefined than a Nazi Germany or an imperalist Japan. So instead, we fought against and continue to fight these elusive terrorists, without an actual declaration of war. I don’t know what the answer is here, the United States must defend itself, but to grant SOO much power to one individual certainly cannot be what the Founders intended. We must go back to the Constitution and to the arguments made in the Federalist and see what those intentions were and try to find the answers that are already there.

  8. Thanks to everyone who joined our discussion today, and to our Guest Constitutional Scholar Bloggers, Daren Bakst and Troy Kickler!

    I asked you all last night to help us recruit kids to enter the We The People 9.17 Contest, Entries due July 4! Thank you!! We have had several new online signups today at http://constitutingamerica.org/contestsignup.php Please keep spreading the word!!

    Here is one additional request – as you recruit young people to the contest, please ask their parents, and the older kids, to join us on this blog! We learn so much from each other. The more people we have participating, the more we learn!!

    Tonight, the first paragraph of Federalist #26 grabbed my attention. I even printed it off and carried it down the hall to show my husband who was trying to watch TV in peace! But as he read the sentences below, he agreed – these words ARE relevant today:

    IT WAS a thing hardly to be expected that in a popular revolution the minds of men should stop at that happy mean which marks the salutary boundary between POWER and PRIVILEGE, and combines the energy of government with the security of private rights. A failure in this delicate and important point is the great source of the inconveniences we experience, and if we are not cautious to avoid a repetition of the error, in our future attempts to rectify and ameliorate our system, we may travel from one chimerical project to another; we may try change after change; but we shall never be likely to make any material change for the better.

    I admit I had to look up a few words. I had a vague understanding of their meanings, but reading the definitions added to the richness of Hamilton’s message.

    ameliorate – to make or become better, more bearable, or more satisfactory; improve; meliorate.

    chimerical – 1 : existing only as the product of unchecked imagination : fantastically visionary or improbable
    2 : given to fantastic schemes

    Even though Publius uses this first paragraph to make his case for the legislature to have the power to provide for national defense, these words reverberate with meaning, as I think of the numerous ways the balance between “legislative power and liberty” (thank you Mr. Bakst & Kickler for that phrase) has been disrupted.

    Our founders created a system of checks and balances, and nothing less than our freedom is dependent upon its equilibrium. Whether we tip too far towards anarchy, as Hamilton feared if the legislature wasn’t granted the power to provide for the national defense, or too far towards government control in our lives, the result is a deviation from the system of government our founding fathers so carefully designed. When “We the people” allow the government to get out of balance, we allow our liberty to fade, creating those “inconveniences,” Hamilton references, and we fail to make “any material change for the better.”

    Good night and God Bless!

    Cathy Gillespie

  9. “…the state legislatures, who will always be not only vigilant, but suspicious and jealous guardians of the rights of the citizens, against encroachments from the federal government, will constantly have their attention awake to the conduct of the national rulers, and will be ready enough, if anything improper appears, to sound the alarm to the people, and not only to be the VOICE, but if necessary, the ARM of their discontent.”

    When I read these words of Alexander Hamilton, I think to myself, “ WHAT HAPPENED?” This is one of the absolute best paragraphs in the Federalist Papers! When one wants to know what’s the big deal about the Federalist Papers, when someone wants to know why the United States Constitution important, when someone says, “We haven’t strayed that much from the Constitution,” I would direct them to this paragraph in Federalist Paper No. 26.

    These are the words that define the vision of our founding fathers, and the structure of the United States Constitution, in regard to restraining the federal government.

    “the state legislatures, who will always be not only vigilant, but suspicious and jealous guardians of the rights of the citizens”

    “against encroachments from the federal government, will constantly have their attention awake to the conduct of the national rulers”

    “and will be ready enough, if anything improper appears, to sound the alarm to the people, and not only to be the VOICE, but if necessary, the ARM of their discontent.”

    What are our state legislatures doing? They are not representing us in the U.S. Congress anymore and the federal government has tied their hands.
    The tenth amendment needs to be revisited and rekindled.

    Have we proceeded too far to save America? Will we ever get back to the true intention of our Constitutional government? Will American’s ever cut the umbilical cord?
    Are we to watch our flag burning in the street as citizens insist that the government owes them benefits? Will the age of entitlement ever be replaced by the original age of entrepreneurial vigor? Are we to sink on the same ship as Greece? Our GNP is projected to meet Greece’s GNP by 2020.

    How will America survive?

    If American’s do not know what they have they will not know when it is slowly being taken away from them.

    As Alexander Hamilton states,“Schemes to subvert the liberties of a great community, require time to mature them to execution.”

    The time has come and the alarm must sound before it is too late. What are our state legislatures doing? They are not representing us in the U.S. Congress anymore and the federal government has tied their hands.

    The tenth amendment needs to be revisited and rekindled.

    We must act now before America’s great liberties are swallowed into the great abyss of socialism and democracy fails – but this will happen only if we let it. We must be the VOICE and the ARM of discontent. The best way to do this is by education. We must educate our friends, our family, our neighbors, our CHILDREN about the United States Constitution, the Federalist Papers and our country’s founding principles.
    We must be vigilant!

    It begins with YOU. Spread the word about our website and “90 in 90,” and our contest for kids!

    God bless you!!
    God bless America.

    Janine Turner
    June 2, 2010

  10. “…the state legislatures, who will always be not only vigilant, but suspicious and jealous guardians of the rights of the citizens, against encroachments from the federal government, will constantly have their attention awake to the conduct of the national rulers, and will be ready enough, if anything improper appears, to sound the alarm to the people, and not only to be the VOICE, but if necessary, the ARM of their discontent.”

    When I read these words of Alexander Hamilton, I think to myself, “ WHAT HAPPENED?” This is one of the absolute best paragraphs in the Federalist Papers! When one wants to know what’s the big deal about the Federalist Papers, when someone wants to know why the United States Constitution important, when someone says, “We haven’t strayed that much from the Constitution,” I would direct them to this paragraph in Federalist Paper No. 26.

    These are the words that define the vision of our founding fathers, and the structure of the United States Constitution, in regard to restraining the federal government.

    “the state legislatures, who will always be not only vigilant, but suspicious and jealous guardians of the rights of the citizens”

    “against encroachments from the federal government, will constantly have their attention awake to the conduct of the national rulers”

    “and will be ready enough, if anything improper appears, to sound the alarm to the people, and not only to be the VOICE, but if necessary, the ARM of their discontent.”

    Have we proceeded too far to save America? Will we ever get back to the true intention of our Constitutional government? Will American’s ever cut the umbilical cord?
    Are we to watch our flag burning in the street as citizens insist that the government owes them benefits? Will the age of entitlement ever be replaced by the original age of entrepreneurial vigor? Are we to sink on the same ship as Greece? Our GNP is projected to meet Greece’s GNP by 2020.

    How will America survive?

    If American’s do not know what they have they will not know when it is slowly being taken away from them.

    As Alexander Hamilton states,“Schemes to subvert the liberties of a great community, require time to mature them to execution.”

    The time has come and the alarm must sound before it is too late. What are our state legislatures doing? They are not representing us in the U.S. Congress anymore and the federal government has tied their hands.

    The tenth amendment needs to be revisited and rekindled.

    We must act now before America’s great liberties are swallowed into the great abyss of socialism and democracy fails – but this will happen only if we let it. We must be the VOICE and the ARM of discontent. The best way to do this is by education. We must educate our friends, our family, our neighbors, our CHILDREN about the United States Constitution, the Federalist Papers and our country’s founding principles.
    We must be vigilant!

    It begins with YOU. Spread the word about our website and “90 in 90,” and our contest for kids!

    God bless you!!
    God bless America.

    Janine Turner
    June 2, 2010

  11. Neil Simpson says:

    It helps me a great deal when I see the explanation. It seems unusual that there was such a controversy over the control of the military. But that does seem to show that our founders had a lot of foresight in that they anticipated problems and then resolved them. I guess what I don’t understand is how we’ve gotten so far away from that ability. Are modern Americans less bright or is the divine no longer influencing our nation’s path?

July 27, 2010 – Federalist No. 65 – The Powers of the Senate Continued, From the New York Packet (Hamilton) – Guest Blogger: Troy Kickler, Ph.D., Founding Director of the North Carolina History Project

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Tuesday, July 27th, 2010

Alexander Hamilton penned three essays (Federalist 64 – 66) explaining why the U.S. Constitution invested the U.S. Senate with certain powers.  In The Federalist 65, he explains, in particular, the Senate’s role in the impeachment process, and why that body–and not the Supreme Court–had been given the authority to convict.

According to the Constitution, the House of Representatives impeaches a national, public official and the Senate hears the trial and issues a verdict. Since 1789, when the U.S. Constitution was ratified, seventeen Americans have been impeached.   The list includes President Andrew Johnson and President William Clinton; however, it includes mainly judges at the U.S. District level.  Among those accused of political misconduct, one resigned before his trial, seven have been convicted, and eight have been acquitted.  Congress can only remove the convicted from their current political office.  The court system will hear any other trials and issue punishment for possible criminal acts.

For the impeachment process, the Constitution requires 1) that Senators “be on Oath or Affirmation,” 2) that the Chief Justice preside over any presidential impeachments (the Vice-President presided over all others), and 3) that a conviction verdict have a minimum of 2/3 vote.

Since 1776, individual state constitutions had included an impeachment process for state officials, and Antifederalists in various states questioned whether state constitutions might be undermined.  Among them was Luther Martin, who ironically later opposed Jeffersonian-Republicans by serving as Justice Samuel Chase’s legal defense during an 1805, national impeachment case.  Other Antifederalists genuinely worried that outside political influence during the impeachment process might affect the Senators’ votes.  In North Carolina, Joseph Taylor and Timothy Bloodworth worried that the House might one day impeach state officials.  Edenton’s James Iredell, one of the first justices on the U.S. Supreme Court, dismissed this argument by pointing out that the constitutional language was clear: only national officials could be impeached by the House of Representatives and possibly convicted by the Senate.

Alexander Hamilton was fully aware of such arguments and put forth a cogent defense of the Senate’s impeachment power in Federalist 65.

One major question that Hamilton answered is why the Senate is given the power to try impeachment cases.  Somewhat agreeing with Antifederalists, Hamilton admitted that partisanship or “political factions” could trump demonstrations of guilt and truth during impeachment trials.  It was possible that reelection concerns and constituents would indeed play a larger role in the impeachment voting process than a genuine search for truth. But that’s why, Hamilton pointed out, the Senate–not the House of Representatives–was given the power.

Before the 17th Amendment’s passage in 1913, state legislatures elected national senators for their state, so Senators were not concerned with winning the popular vote.  Senators were considered in Hamilton’s era, as legal scholar Michael J. Gerhardt writes, “better educated, more virtuous, and more high-minded . . . and thus uniquely able to decide responsibly the most difficult of political questions.”  Elected by state legislative bodies, Senators were considered by Hamilton to be impartial and “sufficiently dignified” to perform the task. And to emphasize the seriousness of the impeachment and ensure a genuine search for truth, these virtuous men were required to take an oath or affirmation (affirmations were allowed so that Quakers, who were conscientiously scrupulous of taking oaths, might not be excluded).

Hamilton considered the Senate preferable to the Supreme Court, too.  For one, impeachment was serious business: a conviction could doom an official’s honor.  Such a decision, Hamilton reasoned, should not be left to a “small number of persons” but to serious deliberation among the most virtuous Americans.  Moreover, the Court should not preside over two cases.  After being stripped of emoluments, the convicted might face the same—yet now predisposed–judges in another trial.  Judges inevitably influenced juries, the New York lawyer also stressed.  Some Constitution critics had suggested uniting the Supreme Court and the Senate during impeachment trials; Hamilton argued that might still lead to an unfair, double prosecution.

The Senate is also preferable to charging people “wholly distinct from the other departments of government” to preside over impeachment trials, Hamilton writes.  That option would increase government size and possibly require permanent positions; either way it would be too costly.  It also would slow down the impeachment process and thereby give the guilty extra time to obfuscate the truth.  Furthermore, Hamilton regretted to point out, a delay might give House members time to influence the decision.

Revealing the popularity and strength of Antifederalist arguments in certain states, Hamilton urged readers to consider the Constitution in its entirety and to avoid letting perfection be the enemy of the good.  The Constitution should not be rejected strictly for a small number of problems, Hamilton argued: [Antifederalists] “ought to prove, not merely that particular provisions in it are not the best which might have been imagined, but that the plan upon the whole is bad and pernicious.”  The search for perfection in government, Hamilton warned in Federalist 65, can lead to anarchy.

Troy Kickler, Ph.D., is Founding Director of the North Carolina History Project.

 

July 29, 2010 – Federalist No. 67 – The Executive Department, From the New York Packet (Hamilton) – Guest Blogger: Troy Kickler, Founding Director of the North Carolina History Project.

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Thursday, July 29th, 2010

Among the 85 essays in The Federalist Papers, some of the most passionate language is in Federalist 67.  A frustrated Alexander Hamilton admits that moderation in tone in writing #67 had been a difficult task.  He denounces “writers against the Constitution” (now called Antifederalists) and accuses them of practicing “unwarrantable arts” that include disingenuousness regarding executive power and offering counterfeit information to prey on the American people and their fear of monarchy.

He specifically calls out Cato (probably former New York Governor George Clinton) and provides a lengthy, detailed explanation of the nomination and appointments and recess appointments clauses in Article 2, Section 2.   In essence, Federalist 67 has two purposes: reprimand the critics of the Constitution and explain the constitutional limitations placed on executive power.

Hamilton writes with so much verve and occasional sting—and he admits as much in the last paragraph–that it is worth including a lengthy quote: “Calculating upon the aversion of the people to monarchy, they [Antifederalists] have endeavored to enlist all their jealousies and apprehensions in opposition to the intended President of the United States; not merely as an embryo, but as the full-grown progeny. The authorities of a magistrate, in few instances greater, in some instances less, than those of a governor of New York [here Hamilton seems to know Cato’s identity], have been magnified into more than royal prerogatives. He has been decorated with attributes superior in dignity and splendor to those of a king of Great Britain. He has been shown to us with the diadem sparkling on his brow and the imperial purple flowing in his train. He has been seated on a throne surrounded with minions and mistresses, giving audience to the envoys of foreign potentates, in all the supercilious pomp of majesty. The images of Asiatic despotism and voluptuousness have scarcely been wanting to crown the exaggerated scene. We have been taught to tremble at the terrific visages of murdering janizaries, and to blush at the unveiled mysteries of a future seraglio.”

After rebuking Antifederals, Hamilton clarifies Article 2, Section 2 and hopes to prove that, without a doubt, State legislatures—not the President–fill Senate vacancies.  Hamilton writes that only temporary appointments, including ambassadors and justices, would be made in special circumstances such as recess of the U.S. Senate.  This clearly excluded, Hamilton writes, presidential appointments of U.S. Senators.  He then refers back to Article 1, Section 3 which guaranteed States the authority to fill permanent vacancies in the Senate.  (This was changed, however, with the passage of the 17th Amendment–popular election of Senators).

Hamilton rightly criticized Cato for misinterpreting Article 2, Section 2.  Cato, however, included the recession appointment clause in his Letter #5 (Hamilton refers to this essay in Federalist 67) as a means to argue for annual Congressional elections.  In it, Cato recalled similar ideas expressed by Algernon Sidney (1623-1683), author of Discourses Concerning Politics, and Charles de Secondat, Baron de Montesquieu (1689-1755), an Enlightenment thinker who articulated the separation of powers doctrine.  Cato believed, in short, that annual elections eliminated a need for the recess appointment clause.

But back to Hamilton’s points.  Article 2, Section 2 reveals the Framers’ fear of congressional despotism and serves as a check, alluded Supreme Court Justice Antonin Scalia in Freytag v. Commissioner (1991).  This provision helped identify the source of temporary appointments of U.S. officers and avoided the possibility of legislative machinations.  As James Wilson, a leading Pennsylvania Federalist, legal scholar, and one of the first U.S. Supreme Court justices writes, in Lectures on Law (1790-92):  “The person who nominates or makes appointments to offices, should be known. . . No constitutional stalking horse should be provided for him to conceal his turnings and windings, when they are too dark and too crooked to be exposed to publick view.”  Simply put, Article 2, Section 2 ensures that Americans know who is responsible for nominating appointments described within the provision.

It must be remembered that the President nominated, but Congress approved the nomination.  Presidents have sometimes evaded this procedure, to be sure, by creating positions not listed in the provision.  Grover Cleveland did so in 1893, when appointing James H. Blount to report on the Hawaiian Revolution.  Hamilton argues in Federalist 67 that presidents do not confirm the officers listed in Article 2, Section 2. As James Iredell, a leading North Carolina Federalist reminded delegates at his state’s ratification convention, “The President proposes such a man for such an office.  The Senate has to consider upon it.  If they think him improper, the President must nominate another, whose appointment ultimately again depends upon the Senate.”  History has provided examples of implementing this governmental check: approximately 20% of Supreme Court nominations have NOT been confirmed, to name only one example.

Although Hamilton uses an accusatory tone, all involved in the ratification debates were concerned with defending liberty.  The debates prompted a more clear explanation of the Constitution’s checks and balances and limits on governmental power.  We can be thankful for that.

Troy Kickler is Founding Director of the North Carolina History Project.