How The Supreme Court Constitutes America – Guest Essayist: William Morrisey

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In defending the establishment of the United States Supreme Court, Alexander Hamilton maintained that the absence of an independent judicial power had handicapped the government established by the Articles of Confederation. The way the Articles government had been structured made the rule of law–even the modest legislation enacted by Congress–more or less impossible.

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United States v. Carolene Products Co. (1938) – Guest Essayist: William Morrisey

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United States v. Carolene Products Co. 304 U. S. 144 (1938)

If you concede the constitutionality of the administrative state, where does that leave citizens’ liberties? That is, if you claim(some might say pretend) that the United States Constitution authorizes unelected, tenured officials the power to frame, enforce, and adjudicate laws you grant a privilege that looks very much like the abrogation of the Constitution’s separation of powers, brushing aside Thomas Jefferson’s maxim that the accumulation of these powers in one set of hands is the definition of tyranny. Under these circumstances, how will citizens’ liberties be protected? Who will do it? This is the question addressed in the Carolene Products case–specifically, in the fourth footnote to the majority opinion, written by Justice Harlan Stone. It has been described as the most famous footnote in the history of the Court.

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Chief Justice John Marshall (1755-1835) – Guest Essayist: William Morrisey

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“The Great Chief Justice,” John Marshall (1755-1835)

The longest-serving Chief Justice in our history, author of every major Supreme Court ruling in the first third of the nineteenth century—including the one establishing the principle of judicial review—John Marshall earned undisputed honor as “the Great Chief Justice.” He deserves honor also as a great man.

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The United States Supreme Court: Landmark Decisions and the Justices Who Made Them – Guest Essayist: William Morrisey

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Introduction: Why Study the Landmark Decisions?

What does it mean to “constitute” America?

How would anyone do that? And why?

And what is “America,” anyway?

“America can mean simply the “New World”—the two American continents, “new to the late-Renaissance Europeans who stumbled upon them en route to China, if not to the Asian settlers who’d lived here for centuries. In that sense, hundreds of millions of Americans now live in dozens of countries, under several distinctive forms of government.

Given the prominent display of the Stars-and-Stripes flag on the Constituting America website, no one reading these words will imagine “America” to mean that, here. We mean the United States of America, a particular country in America, which declared its independence, its self-government, from an empire ruled from Europe. To assert self-government requires one to establish the terms and conditions by which that government will proceed. By leaving home, a young man or woman declares independence from parents: Very well then, but how will you live, under your newfound self-rule? You say you want to live at liberty, pursuing happiness, but what’s your plan? Read more

Constitutional Issues In The 2016 Election – Guest Essayist: Professor William Morrisey

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Faithful readers of Constituting America’s 90-Day Study have followed the story of our constitution through each of our presidential elections. We have seen that the moral foundations of both of our constitutions—the Articles of Confederation and the United States Constitution that replaced it—find their most cogent expression in the Declaration of Independence. There, the Founders held the self-evident truth that all men are created equal, endowed by their Creator with unalienable rights including life, liberty, and the pursuit of happiness. Governments must therefore be framed to secure those unalienable rights. Our God-endowed, or natural, rights—regulated by the laws of Nature and of Nature’s God—find security in our legal or civil rights, defended by a system of government so structured as to channel the ambitions of political men and women toward the guardianship of those rights. This requires a regime designed to empower the government so our rights can be defended effectively against those who threaten them, at home or abroad. At the same time, the powers of that government will check and balance one another, so that no single individual or group of individuals will likely usurp all those powers, setting us on the road to tyranny. America’s early Constitutional conflicts centered on the question of how much power should be placed in the hands of the national government vis-à-vis the states’ governments. But whether Federalists or Anti-Federalists, Hamiltonians or Jeffersonians, all of the principal founders aimed at securing the natural rights of Americans by the means of well-designed constitutional forms.

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1948, Harry Truman Defeats Thomas Dewey, Strom Thurmond (“Dixiecrat”), Henry Wallace (Progressive Party): “States’ Rights” And Civil Rights Issues Raised By Dixiecrats – Guest Essayist: Professor William Morrisey

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1948: The Dixiecrats

The primary elections of 2016 have invited comparisons to political factions in American politics that haven’t appeared in such clear focus for nearly seventy years. Although the Republican Party of 1948 had papered over its divisions between moderate-to-liberal business interests on the East Coast—represented by New York Governor Thomas Dewey—and Middle-Western conservatives—represented by Robert Taft and, behind him, Herbert Hoover—Democrats split bitterly into three groups. The mainstream of the party nominated President Harry Truman; the left wing (which included democratic socialists and some communists) ran Henry Wallace on the ticket of the Progressive Party; and the segregationist, southern Democrats ran South Carolina Governor Strom Thurmond on the ticket of the States’ Rights Democratic Party or “Dixiecrats.” In one of the most famous upsets in American political history, Truman overcame his party’s fracturing and defeated Dewey, although the Dixiecrats won the combined 38 electoral votes of Louisiana, Mississippi, Alabama, and South Carolina. The Progressives failed to win a single electoral vote.

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1912, Theodore Roosevelt’s “New Nationalism” – Guest Essayist: Professor William Morrisey

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By August 1910, Theodore Roosevelt had been out of office for a year and a half. He was unhappy with President William Howard Taft’s performance. Although Roosevelt had effectively designated Taft as his successor and continued to esteem him personally, Taft wanted no part of the rising Progressive movement in American politics. By 1910, Roosevelt did, for reasons that remain controversial.

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1828, Controversy Over Andrew Jackson’s War Record And The Question Of Civilian Control Over The Military – Guest Essayist: Professor William Morrisey

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1828: The General and the Presidency

Americans remember Andrew Jackson’s victory over John Quincy Adams in 1828 as the General’s revenge for his narrow loss to Adams four years earlier, when no candidate received a majority in the Electoral College, the election devolved to Congress, and Henry Clay threw his support to the man most likely to endorse his “American System”—the network of public works or “internal improvements” Clay fought for throughout his career. In accepting the grateful president-elect’s offer of the Secretary of State, Clay opened himself and his ally to the charge of a  “corrupt bargain”—a charge Andrew Jackson fervently believed true, and one he and his political allies kept alive for the next four years.

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The “Living” Constitution – Guest Essayist: Will Morrisey

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Contributors to this series of articles have shown that executive branch of the United States government, cheered on by Congress and the Supreme Court and abetted by what has become a fourth branch of government—the federal bureaucracy or administrative state—has for some time almost routinely overridden the separation of powers the Framers designed for the protection of American rights.  In The Federalist, Publius had argued that the Constitution itself amounts to a bill of rights, preventing the usurpation of powers by the executive by giving the legislative and judicial branches powerful incentives to resist such encroachment.

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Immigration Reform And Executive Orders: Imperfect Together – Guest Essayist: Will Morrisey

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Properly used, executive orders form an indispensable part of any government, including our own. If Congress passes a law and the president signs it, the president undertakes a Constitutional obligation to execute the law.  In so doing, he is likely to need to tell his administrators what to do and, at least to some extent, how and when to do it. Thus the president is constitutionally obligated to enforce immigration law and is fully entitled to issue executive orders in the course of fulfilling that obligation.

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How Did Executive Overreach Come About? How Was It Excused? Woodrow Wilson’s Role…. – Guest Essayist: Professor Will Morrisey

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In late January 1904 the president of Princeton University stepped to the podium of The Outlook Club in Montclair, New Jersey. Today, university presidents get into the news when some scandal erupts, but at the beginning of the last century they often enjoyed the status of what we now call “public intellectuals”—frequently quoted in the newspapers on the issues of the day, looked to for solutions to economic and social problems. Nicholas Murray Butler at Columbia, Charles William Elliot at Harvard, and Arthur Twining Hadley at Yale were well-respected national figures. The Outlook Club was exactly the platform for such a person; possibly named after The Outlook, a prominent magazine featuring literary and political commentary associated with the several “reform” movements of the day, the Club afforded its speakers an audience of university-educated civic leaders who used their influence to promote “good government”—by which they first intended government free of corruption and of the party “bosses” associated with it, but which would soon coalesce into something still more ambitious: Progressivism.

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Wednesday, May 29, 2013 – Essay #73 – The American Conception of Liberty by Frank Goodnow – Guest Essayist: Professor Will Morrisey, William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College

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Liberty and the Administrative State: Goodnow’s Gambit

Hillsdale’s Reader on the U. S. Constitution begins with Thomas Jefferson and ends with Ronald Reagan. Of the many `contributors’ to the anthology, none is less-remembered today than Frank Goodnow, who never won an election for public office, having spent his career almost entirely in academia.  Unlike John Dewey, another professor, Goodnow wrote no books that have been widely read beyond his own generation. Yet he stands as an important figure in the Progressive movement, particularly with respect to his championing of Progressivism’s most distinctive institutional feature, the administrative state. Read more

Friday, May 24, 2013 – Essay #70 – The Gettysburg Address by Abraham Lincoln – Guest Essayist: Professor Will Morrisey, William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College

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What Is the “New Birth of Freedom”?

 Lincoln came to the Gettysburg field of the dead and spoke of “a new birth of freedom.”  What did he mean by it?

A lot of men killed a lot of other men at Gettysburg during those three days in July of 1863. But that happened more than once in the Civil War: at Antietam, in the Wilderness, at Cold Harbor, and many other places.  People remember those places and those battles, too, but not the way they remember Gettysburg.

Maybe because this was the battle? The one in which the Confederate States of America lost not just a battle but began to lose the war?  But why did they lose this battle and that war? Read more

Tuesday, May 21, 2013 – Essay #67 – First Inaugural Address by Abraham Lincoln – Guest Essayist: Professor Will Morrisey, William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College

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Abraham Lincoln won the presidency in the election of 1860, defeating three other candidates, including two Democrats, with nearly forty percent of the popular vote and an absolute majority in the Electoral College.  Democrats had split into two factions. Northern Democrats, headed by Illinois Senator Stephen Douglas (who had defeated Lincoln in the Senate election two years earlier) held that the question of admitting slavery into the western territories should be answered by referendum in each territory. Southern Democrats, headed by Senator John J. Breckinridge of Kentucky, upheld the claim most famously enunciated decades earlier by Senator John C. Calhoun of South Carolina–namely, that property in slaves is an unalienable right, that slavery was “a positive good” for both white masters and black slaves, and that slave owners therefore could keep their slaves wherever in the territories they pleased.  Popular sovereignty might not protect, and surely did not posit a natural or absolute legal right to slave property, and could never satisfy the slave owners. Although Douglas won the nomination of the regular Democratic organization, he won only a single state in the national election: Missouri. The southern Democrats (who had `seceded’ from the party’s convention before the final vote was taken) won ten states, all of them by overwhelming margins. Read more

April 27, 2012 – Essay #50 – Amendment XIV Due Process Protection – Guest Essayist: Professor Will Morrisey, William and Patricia LoMothe Chair in the United States Constitution at Hillsdale College

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http://vimeo.com/41124226

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

What Is “Due Process of Law”?

Enacted in 1868, the Fourteenth Amendment numbers among the “Civil War amendments”—those that aimed to settle the relations of the states to the federal government. First among the much-controverted issues prior to the war was slavery, abolished throughout the nation in the Thirteenth Amendment. But slavery had thrived underneath the constitutional carapace of “states’ rights.” If state governments were not restrained from abridging the citizen rights of the former slaves, for example, what would prevent them from reintroducing de facto racial servitude in some other guise?

For example, why could the states not practice oppression against any group it chose to target by making it subject to arbitrary arrest or imprisonment or to summary judgment without benefit of trial? The Constitution prohibited the federal government from doing such things, but what about the other levels of government?

Thus the Fourteenth Amendment says that no state may “deprive any person of life, liberty, or property, without due process of law.” Readers of our founding documents will find that language very familiar. Rightly so: the phrase reproduces the language of the Fifth Amendment, which itself follows the famous words of the Declaration of Independence: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness.” Jefferson’s words follow those of the English philosopher John Locke, who identified life, liberty, and property as fundamental natural rights.

This means that the Framers took natural rights—rights endowed by our Creator—and made them into civil rights—rights formally recognized in our fundamental man-made law. Designed and implemented by human beings, governments exist in order to secure our natural rights, and one way to secure those rights is forthrightly to enunciate them in the supreme law of our land, ratified by the only sovereign body under God Americans recognize—themselves.

But if governments are instituted to secure our natural rights against those who would violate them, by what right does government punish the violators? Does effective punishment not require the government to deprive criminals of their property—by fining them—their liberty—by imprisoning them—and even their lives—by executing them for the most heinous offenses against our natural and civil rights? How can government do this without contradicting itself—without violating the very rights government is supposed to secure?

The basic principle of justice is to repay good acts with good acts, bad acts with bad acts. (The basic law of charity is to repay bad acts with good acts, but charity goes beyond justice). The `bad’ or rights-depriving acts of just punishment are actually good in the sense that they punish those guilty of committing bad acts against the good. This repays the bad in their own coin and may deter those who are thinking of committing bad acts. Justice metes out equal things to equals: good things to the good, bad things to the bad.

But how do we determine who is guilty of a bad act? Parents mete out what might be described as informal punitive justice to their misbehaving children. This usually involves the quick procedure of look, see, and swat. Children do not deserve a jury of their peers, primarily because such a juvenile jury would be as foolish and unruly as they. Adult fellow-citizens are a different matter. As persons capable of ruling ourselves by reason, we deserve more careful treatment. The care we owe to children entails bringing them up to rule themselves by reason, preferably before they get big enough to do serious damage. The care we owe our fellow citizens entails treating them as such—as persons who should know better than to behave as if auditioning for the next episode of Cops.

This is where due process of law comes in. As an American citizen, your civil rights may not be abridged as punishment for any crime without the observance by the executive and judicial authorities of well-established legal procedures, including a list of the charges against you and the opportunity to defend yourself against them in court. That is, any punishment involves the government in depriving the accused of some important civil right, a right it normally would be entrusted to secure. To do so fairly, the government must `make a case’ against you—persuade a reasonable judge or jury of your peers that you deserve such deprivation.

Today, this form of due process is often called “procedural due process”—a rather odd-sounding redundancy. What process is not procedural? This locution is meant to distinguish adherence to proper legal procedure from another thing called “substantive due process.”

Strictly defined, due process of law limits executive and judicial power to acts that insure a defendant’s fair chance actually to defend himself civilly, without needing to defend himself physically by running away or fighting back. Due process helps to make civil society civil. Substantive due process limits not only executive or judicial power but legislative power. Substantive due process holds that Congress and (with the Fourteenth Amendment) the state legislatures may no longer pass laws that abridge your life, liberty, or property. For example, an American version of the infamous Nuremberg Laws of Nazi Germany, depriving a particular religious or ethnic group of their civil liberties and thus rendering them less than fully-protected citizens, would clearly violate the civil rights to liberty and property of all members of that group. The “substantive” in the phrase “substantive due process” thus refers to the substance of a given law itself as distinguished from the procedures employed to enforce the law. Due process initially held that you could not be deprived of your civil rights to life, liberty, and property without proper legal procedures; it now meant that legislatures could not deprive you of such rights in the first place. This assurance may seem unnecessary because those rights are already protected by the Constitution as a whole. Be that as it may, the assertion of substantive due process causes a serious dilemma because it returns the country to the original problem that due process was intended to solve: if legislatures cannot secure the rights of the good by enacting laws that injure or `correct’ the bad, how will the rights of the good be secured at all? It seems that the very substantiality of substantive due process contradicts justice itself.

Having caused the problem, the Court soon got round to re-solving it, this time at the expense of the legislatures and of the people, and to the aggrandizement of themselves. In its first move, habitual since the 1940s especially, the Supreme Court has claimed that due process places the states under the requirement to adhere not only to those amendments (such as amendments thirteen and fourteen) that specifically restrict the states, but also to adhere to the whole Bill of Rights, which of course originally applied to the acts of the federal government only. So, for example, the first amendment ban on religious establishment by the federal government left state religious establishments undisturbed; now, the courts could invalidate any such establishments by invoking the due process clause understood “substantively” and not just “procedurally.”

This vast expansion of the scope of the due process clause solved the problem of the protection of our civil rights, but only at the expense of intensifying the problem of American self-government. In practice the Court’s behavior has proved highly selective. In the case of the Second Amendment protection of the right to bear arms, the Court has often chosen to overlook state restrictions on that right. At the same time, the Court has at times deployed substantive due process in establishing hitherto unknown and entirely unsuspected “constitutional rights”. It has done so by making a second move, namely, to widen the definition of the rights to life, liberty, and property. The Court-asserted rights to abortion (established in Roe v. Wade [1973]) and to homosexual activity (established in Lawrence v. Texas [2003]) clearly go far beyond anything the framers of the Fourteenth Amendment could have been thinking of back in 1868. The justices have combined substantive due process with their invention of unenumerated Constitutional rights—seen perhaps most glaringly in the 1965 Griswold v. Connecticut decision (in which the majority opinion claimed that the “right to privacy” existed in the “penumbra” of the right to liberty—an expansive and ill-defined emanation, indeed). The doctrine of substantive due process added to a very broad definition of civil rights has enabled the Court effectively not merely to adjudicate but to legislate—a power previously thought to reside in, well, the legislature.

By placing the states under the entire Bill of Rights, and then by defining “rights” penumbrically (I invent the word for the occasion, imitating the creativity of the distinguished justices in my own small way), the Court has done far more than to abridge the powers of the state governments. It has effectively given itself the power to amend the Constitution. Under the original theory of American constitutionalism, only the people—the sovereigns—held this sovereign power. But now the judges exercise it too, making a portion of the federal government sovereign over the (formerly) sovereign people. While the founders asserted the natural rights and sovereign power of the people to establish civil rights over the government-made rights of Englishmen as the basis of their independence from the Empire, the Supreme Court has effectively revolutionized the American Revolution, making Americans into Europeans, again—the New World back into the Old.

Will Morrisey holds the William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College; his books include Self-Government, The American Theme: Presidents of the Founding and Civil War and The Dilemma of Progressivism: How Roosevelt, Taft, and Wilson Reshaped the American Regime of Self-Government.

March 7, 2012 – Essay #13 – Amendment III: Freedom From Quartering Soldiers in Peacetime – Guest Essayist: William Morrisey, William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College

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Amendment III

“No soldier shall, in time of peace, be quartered in any house, without consent of the Owner, nor in time of war, but in a manner prescribed by law.”

Supreme Court Justice Joseph Story, author of perhaps the best commentary on the Constitution, wasted little time with the Third Amendment: “This provision speaks for itself.”  So it does, but a few words of background can explain why the United States Congress and the people they represented thought it worth adding.

During the French and Indian War the British found themselves harried by what we would now call guerrilla strikes.  They had some regular army bases—some of the best of them along the border with Quebec. But given the character of the war they were fighting they needed to move forces quickly into undefended areas to counter French and Indian raiders.  And so they would occupy an unsecured and threatened area—protecting the lives and property of the local citizens in exchange for the commandeered use of the locals’ property for that purpose.

After the war, this practice (as our saying now goes) got old in a hurry.  By 1765, Benjamin Franklin complained that “there are no want of barracks in Quebec, or any part of American; but if an increase of them is necessary, at whose expense should that be?”  Surely not that of private citizens. To Franklin’s complaint about property rights, Samuel Adams added a political one: “where military power is introduced, military maxims are propagated and adopted, which are inconsistent with and must soon eradicate every idea of civil government.”  By occupying the property of private landowners, the British Army acted as if a law unto itself.

Colonists’ outrage heightened in Adams’s own Boston, where the early stirrings of armed resistance to British occupation provoked the Parliament to pass the Intolerable Acts (as the colonists called them), making any public gathering an act of treason and formally providing for quartering troops in private homes.  Upon founding the Union in 1774, Americans saw their representatives in the Continental Congress pass a law in favor of “the better providing suitable quarters for officers and soldiers in his majesty’s service, in North America.”  Once resolved upon independence, the colonists listed the British practice among the grievances proving the tyrannical character of George III’s rule.

The lack of such a provision numbered among the several complaints lodged against the 1787 Constitution by the Anti-Federalists during the ratification fight.  After the Constitution passed—barely, in several states—James Madison and the first United States Congress took up the matter of amendments.  One of the strongest advocates of what would become the Third Amendment was Thomas Sumter of South Carolina; the Carolina Gamecock had won his nickname by inducing Lord Cornwallis to get out of the deep south, moving on toward his unlucky fate at the hands of Washington and the French Navy at Yorktown, Virginia.  Beyond property rights and politics, Sumter went to the intimate heart of the matter: property occupied by soldiers “would lie at the mercy of men irritated by a refusal”—men expecting obedience to the orders they issue—“and well disposed to destroy the peace of the family.”  With that gentlemanly description of ungentlemanly conduct ringing in their ears, the Congressmen gladly passed the amendment.

Notice the important caveat.  Times of extreme emergency may require the risk and burden of quartering troops in private homes.  Accordingly, Congress provided that the practice might be renewed by legislative act.  The lives, liberties, and property of American citizens, even the sanctity of the family, might under certain conditions be more at risk from an enemy force than from the forces charged to defend them.  Then and only then would a Congress or a state legislature dare to enact such a measure.

Although one shouldn’t read much into the order of the first ten amendments (famously, the First Amendment is first only by accident), the placement of the Third Amendment does make good sense.  It follows the Second Amendment stipulation of the right to bear arms; an American household usually can defend itself if family members are rightly armed and trained.  It precedes the Fourth Amendments stipulation of security against unreasonable searches and seizures.  The right to be free of military occupation in one’s own home from one’s own citizen-army sits well between the rights of self-defense and of the orderly rule of law.

Will Morrisey holds the William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College, Hillsdale, Michigan, where he has taught since 2000.

February 29, 2012 – Essay #8 – Amendment I: Congress Shall Make No Laws….Abridging the Right of the People to Peacefully Assemble – Guest Essayist: Professor William Morrisey, William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College

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The Right to Effective Citizenship

Free worship; free speech; freedom to publish; and the rights of the people to assemble peaceably and to petition their government: we cherish our First Amendment freedoms but we may not see how intimately they support one another, how much they need each other.

Free worship means that I may listen to the most important things, the first principles that govern my life, without fear of persecution.  These principles will anchor my conduct, providing me the standards by which I may judge my own actions and those of others.  Free speech and freedom to publish mean that I may safely tell people what I think, having worshipped—that is (among other things) having thought.

But what good would my worship, my speaking, and my writing be—beyond those who happen to worship with me, or hear me speak, or read my writings (small numbers all!)—if I and my fellow citizens had no right to get ourselves organized, to get the attention of our elected representatives, to do things that have real effects in our public life?

The right to assemble in public did not prevail in most places, in most times.  Public assemblies endanger rulers.  They can endanger the peace.  During the virulent civil wars of England, fought over intractable issues of religious conviction, what sensible king would not view such gatherings with fear and suspicion?  In his Letter Concerning Toleration the great English political philosopher John Locke acknowledged that assemblies of men had often been “nurseries of faction and sedition.”

But Locke went on to write that this was so only because “the unhappy circumstances of the oppressed or ill-settled liberty” make such men violent.  In an atmosphere of genuine religious toleration—of well-settled liberty—this need not be so.   After all, he argued, do men not meet peaceably every day in local markets?  Do they not circulate freely on the streets of cities?  Why then do rulers fear religious assemblies?  “Let us deal plainly,” Locke writes. “The magistrate is afraid of other churches, but not of his own; because he is kind and favourable to the one, but severe and cruel to the other.” But “let him let those dissenters enjoy but the same privileges in civil as in other subjects, and he will quickly find that these religious meetings will no longer be dangerous….  Just and moderate governments are everywhere quiet, everywhere, safe; but oppression raises ferments and makes men struggle to cast off an uneasy and tyrannical yoke.”

Thomas Jefferson knew his Locke. In the summer of 1774 he addressed his fellow citizens on General Gage’s proclamation in Massachusetts, “declaring aTreason for the Inhabitants of that Province to assemble themselves to consider of their Grievances and form Associations for their common Conduct on the Occasion.”  Gage was Commander in Chief of his Majesty’s army in America; his “odious and illegal proclamation must be considered as a plain and full Declaration that this despotick Viceroy will be bound by no Law, nor regard the constitutional Rights of his Majesty’s Subjects, whenever they interfere with the Plan he has formed for oppressing the good People of the Massachusetts Bay.” When Jefferson and his colleagues in the Continental Congress met two years later to issue their own proclamation—for independence and against tyranny—they never forgot that the right to assemble peaceably gives a people the way to carry their thoughts and speeches into civic action.

Fifteen years almost to the day on which Jefferson spoke, the House of Representatives debated the first ten amendments to the newly-ratified federal constitution.  The floor manager for the amendments was none other than Jefferson’s closest political ally, James Madison.  In the course of the debates the Congressmen showed that they understood matters exactly as Jefferson had done.  “If people converse together, they must assemble together,” one Member quite sensibly remarked.  But more, “the great end of meeting”—its purpose—“is to consult for the common good; but can the common good be discerned” unless “the object is reflected and shown in every light.”  That is, I may revolve a topic in my own mind a thousand times, but when when I share my thoughts with others  I will begin to see things I had overlooked.  This is the advantage of deliberation in common over mulling things over by oneself.  Still further, as another Member observed, “under a democracy, whose great end is to form a code of laws congenial to the public sentiment, the popular opinion ought to be collected and attended to.”  We not only need to think; once our thoughts have been refined and augmented by the thoughts of others, we then need to get the attention of those who can do something about the things upon which we have resolved.  The Congressmen knew that writing a letter to one’s Congressman will likely have far less effect than a petition signed by dozens—the product of a public assembly of citizens.  Therefore, the same Member concluded, “the people have the right to consult for the common good.”

When the French political philosopher and parliamentarian Alexis de Tocqueville arrived in America a half a century later, he remarked on the importance of civil associations to American self-government.  Under the old states of Europe, the class of people who stood between the central state powers and the people had been the aristocrats—the same class that forced the Magna Charta on the King of England.  But in the modern world, Tocqueville saw (he being an aristocrat), aristocracy was declining.  Absent such a class, who or what would stand in the way of an oppressive central government tyrannizing the people.  Would democracy collapse upon itself, with the people first setting up a government and then watching helplessly as it moved ponderously to crush the very rights governments are designed to secure?

Not so in America, Tocqueville saw.  There, the citizens have learned to organize themselves not `vertically’ under an aristocratic class but `horizontally’ with civil associations: political parties, churches, clubs, societies—all of them with sufficient strength to push back against unwarranted governmental encroachments.  Tocqueville reported that Americans had perfected “the art of association” to the highest degree of any people, employing this art peacefully to defend their liberties against their own governments, when necessary.  To this day, Americans dissatisfied with their local school board, their state legislature, or the federal government itself, respond by getting together with like-minded citizens and—as we like to say–`taking control of their own lives.’  In so doing, they act exactly as John Locke, the American founders, and Tocqueville wanted and expected human beings to do.  Even more, by exercising the art of association Americans to a large and impressive degree govern themselves—that is, they get things done, so that governments will need to do less.  Governments that need to do less can be smaller and likely less oppressive than governments that think they need to do it all. And those fewer things they do need to do will likely be done better.

Will Morrisey holds the William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College, Hillsdale, Michigan, where he has taught since 2000.

 

Professor William Morrisey, William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College and author of our “90 in 90” Article I, Section 3, Clause 1 Essay, Interview with Janine Turner on the Janine Turner Radio Show

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Professor William Morrisey, William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College and author of our “90 in 90” Article I, Section 3, Clause 1 Essay, visits with Janine Turner on the Janine Turner Radio Show, Saturday, August 27 on DFW’s KLIF.

Read Professor Morrisey’s essay here: http://constitutingamerica.org/?p=728.

Professor William Morrisey, William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College and author of our “90 in 90” Article I, Section 2, Clause 5 Essay, Interview with Janine Turner on the Janine Turner Radio Show

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Professor William Morrisey, William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College and author of our “90 in 90” Article I, Section 2, Clause 5 Essay, visits with Janine Turner on the Janine Turner Radio Show, Saturday, August 20 on DFW’s KLIF.

Read Professor Morrisey’s essay here: http://constitutingamerica.org/?p=728.

May 13, 2011 – Article IV, Section 4 of the United States Constitution – Guest Essayist: Professor William Morrisey, William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College

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Article IV, Section 4

The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.

Here the Framers speak the heart of their intentions for America.

In the Declaration of Independence, they had objected to George III’s actions because he had violated the laws of nature and of nature’s God.  One might suppose that the Americans’ complaints amounted to no more than an accusation that this king had turned tyrant—that some other, more just, monarch (a Queen Anne, a Henry IV) might have appeased them. Indeed she, or he, might have done—for a time.

But a more careful reading of the Declaration shows that not only the king but also Parliament had angered the colonists.  Americans judged that the whole British regime, and the structure of the British empire, deserved to be overthrown—replaced with a new regime and a new imperial structure. The new regime was republican—republicanism as they, not the Europeans, understood it—and federal—a federalism informed but not simply as defined by the great French political philosopher, Montesquieu.

What danger did this clause address?  The highly respected Massachusetts delegate, Nathaniel Gorham, joined John Randolph and George Mason of Virginia and James Wilson of Pennsylvania in issuing the warning: “an enterprising Citizen might erect the standard of Monarchy in a particular State, might gather together partisans from all quarters, might extend his views from State to State, and threaten to establish a tyranny over the whole and the General Government be compelled to remain an inactive witness of its own destruction.” That is, these Framers anticipated the kind of career undertaken by Napoleon in France a decade before the fact, and they moved decisively to prevent it from happening here.

As usual, James Madison (writing in the forty-third Federalist) provides the clearest overview.  “In a confederacy founded on republican principles and composed of republican members, the superintending government ought clearly to possess authority to defend the system against aristocratic or monarchical innovations.”  Why so?  Because the United States is not only a republic but a federal union: “The more intimate the nature of such a Union may be, the greater interest have the members in the political institutions of each other; and the greater right to insist that the forms of government under which the compact was entered into, should be substantially maintained” (emphasis in original).  What is more, “Governments of dissimilar principles and forms have been found less adapted to a federal coalition of any sort, than those of a kindred nature,” he writes, citing Montesquieu’s research as proof. Not only the federal government but the constituent states of the federal union must be republican.  Only this can stand as what Jefferson called “an empire of liberty.”

“But a right implies a remedy,” Madison continues.  What power within the United States can safely prevent an anti-republican faction from seizing control of a state?  “What better umpires could be desired by two violent factions, flying to arms and tearing a State to pieces, than the representatives of confederate States not heated by the local flame?  To the impartiality of Judges they would unite the affection of friends.” And even more ambitiously: “Happy would it be if such a remedy for its infirmities could be enjoyed by all free governments; if a project equally effectual could be established for the universal peace of all mankind.”  This would require that republican regimes achieve a sort of `critical mass’ throughout the world; in 1787, they had achieved such a critical mass only in the United States.  If republicanism failed here, when and where would it revive?  When and where would a general civil peace obtain—the condition for securing unalienable human rights?

Protection against invasion includes not only invasion by foreigners—the United States was bordered by the non-republican empires of Spain and Great Britain, as well as by the non-republican (and still formidable) Amerindian nations to the west—but also by other states of the Union.  Although (as Montesquieu had remarked) commercial-republican regimes had not fought one another in the past, the Framers were taking no chances.

The Constitution guarantees federal intervention in times of anti-republican rebellion and of invasion foreign or domestic.  Intra-state violence that is not anti-republican raised another problem. Massachusetts had suppressed Shays’ Rebellion only a few months before the Convention convened. Daniel Shays and his men had rebelled out of desperate indebtedness; far from being anti-republican, many had served in the war on the Patriot side. Convention delegates Elbridge Gerry and Luther Martin objected that intervention in such cases could be dangerous and unnecessary unless the afflicted state consented to it. At the same time, whatever Jefferson may have thought about a little rebellion now and then, armed rebellion does tend to throw cold water on the rule of law, and republics normally operate according to the rule of law. The delegates therefore agreed to require the federal government to obtain consent from the state government before intervening in such disputes.  On balance, the local authorities will judge best when a republican rebellion requires the heavy hand of federal intervention.

In his Federalist essay, Madison did not hesitate to notice a force that might intervene in any disorder, whether anti-republican or republican, foreign or interstate or domestic.  An “unhappy species of population abound[s] in some of the States, who during the calm of regular government are sunk below the level of men; but who in the tempestuous scenes of civil violence may emerge into the human character, and give a superiority of strength to any party with which they may associate themselves.”  The presence of slaves in the United States raised the harshest questions about both the American regime and the American federal union.  By nature, the slaves were men; by law, they were a self-contradictory mixture of personhood and property.  Civil disorder of any kind might induce them to rise up and claim their natural rights, perhaps at the expense of the natural rights of their masters; slave revolts had occurred in New York during the colonial period, and of course the freeman Toussaint Louverture would lead a (temporarily) successful insurrection in Haiti beginning in 1791.  “We have seen the mere distinction of color made in the most enlightened period of time, a ground of the most oppressive dominion ever exercised by man over man,” Madison declared.  Would a slave revolt be an attack on republicanism or a vindication of it?  Madison and the other founders sought some way to avoid such a revolt, which might overturn republicanism in the name of republicanism or perhaps install some other regime as a remedy for evils of slaveholding republicanism.

Put in a somewhat different way, the dilemma was as simple as it was stark.  As Madison wrote in Federalist 43, the republican guarantee clause “supposes a pre-existing government of the form which is to be guaranteed.”  That is, the basis of the federal union—the new empire of liberty replacing the old empire of tyranny—is the republican regime of each constituent state.  Each state entered the union acknowledged as a republic by all of the others. But how `republican’ were those states in which slaves “abounded”?  Madison knew the answer, which he would write down in an unpublished note a few years later: “In proportion as slavery prevails in a State, the Government, however democratic in name, must be aristocratic in fact.  The power lies in the part instead of the whole, in property instead of numbers. All the ancient popular governments were, for this reason, aristocracies.  The majority were slaves…. The Southern States of America, are on the same principle aristocracies.” In his own Virginia, he observed, the population of non-freeholding whites and black slaves amounted to three-quarters of the population (Papers of James Madison, vol. xiii, p. 163).

Such regimes were republics in Montesquieu’s sense—“aristocratic” rather than “democratic” republics.  For Montesquieu, “republic” meant simply that the regime did not amount to the `private’ possession of one person—a despotism.  This definition derived from the Latin root of the word: res publica or “public thing.” But to Madison and rest of the founders “republic” meant the “democratic” republic, only; in the words of Federalist 39,  “it is essential” to republican government “that it be derived from the great body of society, not from an inconsiderable proportion or favored class of it.” And “it is sufficient for such a government that the persons administering it be appointed, either directly or indirectly, by the people—i. e., the representative principle. Representatives represent the people at large, not some “favored class.” In his 1787 critique of the Articles of Confederation, “Vices of the Political System of the United States,” Madison went so far as to publish the sentence: “Where slavery exists the republican theory [namely, that right and power are co-extensive because the majority rules] becomes still more fallacious” than it does under conditions whereby there is a large number of disenfranchised paupers.

All of this being so, the republican regime and the federal union—the unity of the United States—began its life on a knife edge.  The Framers hoped that their new Constitution would provide a framework for the peaceful resolution of the problem of popular self-government under conditions in some ways favorable—remoteness from Europe, commercial interdependence of the states, and all the other features described in the first Federalist—and in some ways ominous—the existence of anti-republican regimes on the borders and of anti-republican “domestic institutions” within the states themselves.   They inserted the republican guarantee clause as one way of strengthening that framework.  In a way, it did—but its enforcement came at horrible cost, decades later.

 

Will Morrisey holds the William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College; his books include Self-Government, The American Theme: Presidents of the Founding and Civil War and The Dilemma of Progressivism: How Roosevelt, Taft, and Wilson Reshaped the American Regime of Self-Government.

April 27, 2011 – Article II, Section 2, Clause 2 of the United States Constitution – Guest Essayist: Professor William Morrisey, William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College

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Article 2, Section 2, Clause 2

2: He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

As Publius reminded his readers in the forty-seventh Federalist, Montesquieu called the Constitution of England “the mirror of liberty”—so esteemed for its separation of governmental powers. So long as no one person or set of persons can exercise legislative, executive and judicial powers, neither king nor aristocrats nor commoners can dominate the country. In the United States, where everyone is a commoner, separation of powers remains relevant to the sustenance of liberty. If “the accumulation of all powers” in “the same hands” can “justly be pronounced the very definition of tyranny,” then even a cabal of commoners might so empower themselves, serving as lawgivers, judges, jurors and executioners over their fellow citizens.

But if separation of powers serves as an indispensable bulwark of political liberty (Publius continues), one must understand it rightly, as Montesquieu did. Montesquieu “did not mean that these departments ought to have no partial agency in, or no control over, the acts of each other.” He only meant that no one department may “possess the whole power of another department.” To make the three branches of government entirely independent of one another would amount to making three distinct governments—uncoordinated, ineffective, hardly able to govern at all. No person or persons could be held responsible for government action or, more likely, inaction.

The president’s power to make treaties and nominations exemplifies these principles of liberty and responsibility. Under the Articles of Confederation, Congress negotiated treaties. This required the dispatch of one or more delegates, thus depriving one or more states of representation. On the other hand, a treaty, once ratified, is a law—indeed, a supreme law. The executive branch must not legislate. Further, if treaties are laws disputes will arise requiring judicial attention—the province of neither legislature nor executive. If neither the Congress nor the president alone can assume the responsibility of treaty making, the only remedy can be to divide treaty-making into two parts, assigning each part to a different branch.

Then there is the matter of federalism. Treaties are the nation’s business, but do the states not want their interests represented, as well?

The Framers’ solution: the executive branch will negotiate treaties; the Senate will ratify them; the Supreme Court will adjudicate case arising under them. But this separation of powers and duties does not and cannot imply isolation of powers and duties. Senators can advise the president on the treaty (before and after negotiations); although negotiations themselves ought to be confidential; they can then consent or ratify the treaty resulting from those negotiations. Thus both branches exercise mutual control over treaties without interfering with or encroaching upon one another.

The same goes for presidential appointments. Who will control the apparatus, the administration, of the American national state? Not Congress directly: as James Wilson argued at the Convention, “a principal reason for unity in the Executive was that officers might be appointed by a single, responsible person,” thus avoiding “intrigue, partiality, and concealment.” At the same time, complete presidential control over appointments could allow a president to create offices and fill them with his favorites—the very definition of “corruption” as the term was used in the eighteenth century, and one of the most frequent complaints against monarchy. (Recall the words of the Declaration of Independence: King George “has erected a multitude of New Offices, and sent hither swarms of Officers to harass our People, and eat out their substance.”) Again, the solution was to divide and correlate two powers, giving nomination to the president and appointment to the Senate. The sovereign people can clearly observe both of these governing actions and finally hold their representatives responsible for them.

The construction of the presidential powers of treaty-making and of nomination thus addresses the crucial issues of the character of the American regime and the structure of the American state. The people retain their sovereignty through their elected representatives. No one set of representatives governs without restraint from other sets of representatives. Through the Senate, the states have a decisive `say’ in both international lawmaking and the composition of the national administration. Both republicanism and federalism are preserved.

Will Morrisey holds the William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College; his books include Self-Government, The American Theme: Presidents of the Founding and Civil War and The Dilemma of Progressivism: How Roosevelt, Taft, and Wilson Reshaped the American Regime of Self-Government.

February 28, 2011 – Article I, Section 02, Clause 5 and Section 3, Clause 1 of the United States Constitution – Guest Essayist: Professor William Morrisey, William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College

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Article 1, Section 2, Clause 5

“The House of Representatives shall chuse the Speaker and other Officers; and shall have the sole Power of Impeachment.”

The Articles of Confederation had established a federal government in which all three powers—legislative, executive, and judicial—resided in one body, the Congress.  This proved unwieldy and ineffectual.  In principle, such an arrangement violated the Jeffersonian precept that any person or institution holding all of these powers constitutes a tyranny.  The popular foundation of Congress under the Articles mitigated this danger but did not remove it, inasmuch as popular majorities might well tyrannize.  The primary guard against Congressional tyranny thus consisted precisely in Congressional incompetence, an incompetence derived not from the incapacity of its members but from the structure of the institution itself.  At Philadelphia, the Framers needed to remove the structural impediments to good government while simultaneously preventing governmental efficiency from malign use.  Separated, balanced, but also interdependent branches of government, each exercising one of the three powers, could prevent tyrannical government without preventing firm government.

The House of Representatives chooses its own officers, including its chief officer, the Speaker of the House.  This seems obvious to us now, but consider the other possibilities.  The Framers might have empowered the President to choose these officers, selecting them from each newly-elected batch of Representatives.  This quite obviously would have compromised the independence of the House from the Executive branch.  In the most recent Congressional election (for example) it would have enabled President Obama to choose the officers of a House that had been elected in part as a popular rebuke to the president’s party and its policies.  Alternatively, the Framers could have provided that the Speaker and perhaps some of the other officers might be elected by the Electoral College—i. e., by representatives of the people as a whole meeting prior to and independently of the first meeting of the newly-elected House.  But this would elevate them to same status as the president and vice-president; separation and balance of powers requires that equal prestige be attached to the legislature as a branch of government and not to particular members within it.  Choice of the House officers by the House members ensures that those officers will be well known and esteemed by the majority of their colleagues.  Other methods of selection could not guarantee this.

The power of impeachment bespeaks the character of the American regime, of republican government itself.  In his 1791 Lectures on Law, James Wilson writes, “The doctrine of impeachments is of high import in the constitutions of free states.  On one hand, the most powerful magistrates should be amenable to the law; on the other hand, elevated characters should not be sacrificed merely on account of their elevation. No one should be secure while he violates the Constitution and the laws; every one should be secure while he observes them.”  The laws are the considered judgments of the elected representatives of the American people; to violate them while entrusted with a Constitutional office must deserve the swiftest punishment consistent with a fair trial.  However, only a violation of the law can deserve such punishment, or else no sensible person would undertake the responsibilities of public office.  To keep impeachment and trial within the bounds of the rule of the people’s law, as distinguished from the envy, partisan rancor, or other passions of the hour must be a fundamental purpose of any just and reasonable constitution-maker.

The Framers assigned the power of impeachment to the House.  That the House wields the sole power of impeachment speaks not only to the separation of powers but to their interdependence.  The House alone can impeach an officer of the federal government.  Impeachment means accusation or indictment, parallel to the power of a grand or petit jury.  Under the British constitution the House of Commons was regarded as “the grand inquest of the nation”; as the most democratic branch, the one most frequently elected, the United States `house of commons’ indicts officers in the name of the sovereign—namely, the American people, unencumbered by any dynasty or aristocracy.  This provides for the independence of the House from all other branches, including the other legislative branch.

But, once impeached, the accused officer then has his day in court, so to speak, not in the House but in the Senate; further, presiding over that trial will not be any senator but the Chief Justice of the United States.  This illustrates and provides for the interdependence of the three branches.  Without interdependence, the American government would feature branches not merely separated but isolated from one another.  Each branch would go its own way, leading to governmental incoherence—to what Publius calls, in another connection, a hydra or many-headed monster.  The incompetence of the Articles of Confederation Congress would reappear, albeit in a more complex, interesting, and elegant form.

As intended by the Framers, impeachment and conviction of wayward federal officers has proven rightly difficult but possible in cases of clear malfeasance.  Removal from office has remained mostly in the best hands—namely, the people themselves, who elect, re-elect or dismiss their representatives in free elections.

Article 1, Section 3, Clause 1

“The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six Years; and each Senator shall have one Vote.”

Publius famously asserted that “the science of politics” had “received great improvement” in modern times.  (Some fifty years later, Tocqueville rather more dramatically—he was French—called for “a new politics for a world altogether new”). The newness of American politics and of American political scientists consisted of two things: first, our freedom from rule by monarchic dynasties and titled aristocrats; second, our freedom from the already formidably centralized government of Europe.  The “New World” that Europeans had `discovered’ was new to them; what they had discovered was of course a very old world populated by Amerindian nations and tribes.  It was new to the Europeans.  The real newness of the New World arose from the politics of the European settlers, governing themselves largely unsupervised by European ruling classes and institutions.

Freedom from monarchs and aristocrats meant that Americans could found a regime not seen since antiquity, a republic in which the people were sovereign, with no admixture of any families or classes that claimed a superior right to rule.  For example, although most states required property ownership of voters and of office-holders, nothing but ill luck or incapacity barred today’s pauper from property ownership and full citizenship rights tomorrow.  The socially egalitarian regime of the United States could better reflect the natural equality of human beings enunciated in the Declaration of Independence, vindicating in the revolutionary war for independence.

Political communities coalesce not only in the form of their regimes.  They also form themselves as relatively large or small societies in terms of population and territory and as relatively centralized or decentralized with respect to their ruling structures.  The polis of ancient Greece, small and centralized, contrasted sharply with the contemporary empires of Persia and of China—huge but decentralized entities which gave their provinces substantial latitude for self-government because it had to.  In antiquity, no ruler commanded a ruling apparatus that could do much more than exact tribute from the peoples it conquered, quell uprisings, and defend imperial borders.

The modern state changed this.  Envisioned in principle by the Italian Renaissance writer, Niccolò Machiavelli, and put into practice by the Tudor dynasty in England, the Bourbon dynasty in France, and many others, the state combined some of the size of an empire with the centralization of the polis or `city-state.’  With their standing, professional armies funded by revenues collected by state employees or `bureaucrats’ from societies whose energies were funneled into commercial acquisition, and industrial productivity spurred by the new, experimental science aiming at the conquest of nature—all guided by reformed financial institutions—states quickly became the most powerful polities ever seen.

The American founders needed to frame a modern state in order to defend American citizens from the statist empires of Europe that still bordered them to the north and south, and also from the still-powerful Amerindians in the west. As we know, they wanted a republican regime for this state.  But could a centralized, modern state have a republican regime (and keep it, as Franklin pointedly remarked)?  Did the centralized ruling apparatus of modern statism not lend itself to the rule of the one or of the few?  European statesmen thought so; for the next century, they expected the new republic to implode.  On occasion, it very nearly did.

The invention of statesmen devising a new political science for a new world, the United States Senate answers these questions, both with respect to the regime of republicanism and the polity of statist confederalism.

In the Philadelphia Convention, the framers eventually agreed that the unicameral legislature of the Articles of Confederation should be replaced by the bicameral legislature that had been most copiously advocated by John Adams in his treatise, Defence of the Constitutions of the United States.  Gouverneur Morris of Pennsylvania argued for bicameralism as a pillar of what Aristotle and other classical political philosophers had called a `mixed regime’—one that balanced the rule of the few who are rich with the rule of the many who are poor.  The Senate, Morris said, ought to represent the interests of the commercial oligarchies consisting of urban merchants and financiers as well as country gentlemen.  The House ought to represent everyone else—particularly the middling classes of small farmers and shopkeepers.  “The two forces will controul each other,” providing “a mutual check and a mutual security,” Morris asserted.  The British Constitution exemplified such a mixed regime, albeit with a House of Lords—titled aristocrats—not American-style commoners who happened to be wealthy.  John Dickinson of Delaware hoped that the Senate would “bear as strong a resemblance to the British House of Lords as possible.”

James Madison of Virginia saw the regime implications of the Senate more clearly.  The Senators would represent no particular class or caste; they would represent the constituent states of the United States.  Without titles of nobility (banned in the Constitution) or any set level of wealth, the Senators as such would have no interests separate from those of the people.  The Senate therefore would fit easily into a pure or unmixed republic.  At the same time, the six-year terms of office would lend the Senate some of the virtues of an aristocracy: steadiness of purpose, the tendency to take a longer view of things that that likely among the representatives in the more democratic House, with their biannual re-election worries.

The design of the Senate also addressed the dilemma of statism.  Under the Articles of Confederation, the country had suffered from the inefficiencies, injustices, and dangerous of excessive decentralization.  At the Convention, however, delegates from the smaller states in the Confederation feared relinquishing any more of their sovereignty, fearing domination by the large states.  The Framers had already tied the House to the democratic principle of proportioning the number of representatives from each state to the size of its population.  Large-state delegates advanced the Virginia Plan: a bicameral legislature, membership of both houses being determined by population.  Small-state delegates countered with the New Jersey Plan, which would have retained the Articles of Confederation’s unicameral legislature, with one vote per state.  All accounts of the Convention emphasize that the debate between small-state and large-state delegates consumed more time and energy than any other item.  How could the small states defend themselves in the new legislature without sacrificing the just, republican claims of the large states?

The answer—called the Connecticut Compromise because advanced by Roger Sherman of that state but also propounded by Dickinson—stipulated bicameralism but with two different modes of election that satisfied both sides and also guaranteed the independence of one house from the other.  If the Senators were selected by the House, the Senate would have no independence and bicameralism would be nominal; if Senators were selected by voters in each state they might prove better demagogues than statesmen.  The Compromise established that state legislators choose the senators.  The legislators would have every reason to send their ablest men to defend the interests of their state in the national capital—men of “distinguished characters,” as Dickinson put it.  For his part, Sherman and George Mason of Virginia argued that confederal union must give each state—especially the small ones—the means of defending themselves within the national councils.

Setting the number of each state’s senators at two accomplished all of these purposes.  As John Randolph of Virginia argued, a Senate smaller than the House would be “exempt from the passionate proceedings to which numerous assemblies are liable”; the more intimate chamber would conduce more to deliberation than to verbal pyrotechnics.  This comported with the `aristocratic’ character of the Senate.  At the same time, delegations of two senators instead of one reduced the risk of a state being disenfranchised by accident or illness; two senators voting individually and not as a bloc precluded the possibility of a deadlocked (1-1) vote, which also would effectively disenfranchise a state on those occasions when senators from the same state disagreed.  Finally, giving every state an equal number of senators calmed the fears of the smaller states; confederalism would sustain them, not overwhelm them.

By designing the United States Senate, the Framers thus addressed both the `regime’ question and the `polity’ question.  The Senate reinforces the republican regime by providing an institutional platform for deliberation and steadiness of purpose that a large, unicameral legislature might lack.  The Senate also reinforced a confederal polity—a modern state sufficiently centralized and powerful to defend itself in a dangerous world, but sufficiently responsible to its constituent political parts to prevent that centralized power from usurping the right and duty of self-government.

Will Morrisey holds the William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College; his books include Self-Government, The American Theme: Presidents of the Founding and Civil War and The Dilemma of Progressivism: How Roosevelt, Taft, and Wilson Reshaped the American Regime of Self-Government.

Posted in Analyzing the Constitution Essay Archives | 7 Comments »

7 Responses to “February 28, 2011 – Article 1, Section 2, Clause 5 and Section 3, Clause 1 – Guest Essayist: Professor William Morrisey, William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College”

  1. Ron Meier says:

February 27, 2011 at 10:31 pm

Thanks Professor Morrisey; I found the discussion on the Senate to be especially enlightening.

I wonder how different things might be today if the original intent of the method of choosing Senators were adhered to instead of changing that method to election by the same method as Representatives are elected? For example, would the extensive use of Federal mandates (education, highway construction, etc.) have passed the Senate if the states, rather than the people, were represented in the Senate?

  1. Ralph T. Howarth, Jr. says:

February 28, 2011 at 12:26 am

@Ron Meier, not to mention the all-around carrot and stick methods of regulation over areas Congress is not granted power to do by the states. Our statesmen go to Washington D.C. to have to endure a system of inducements, bribes, and compromise in order to get money that left their state to come back and fund what are local affairs within their state. If money leaves the state to only come back for municipal affairs then something is out of whack. All taxes used to be collected by the states themselves and then paid out of the state’s office to the US Treasury. We ought to go back to that to where people just file one income tax form with their state that pays the federal income tax in some percentage out of the state tax. That way the states pay the taxes to the federal like they used to and it will be the states the hold the purse strings. With such an arrangement then much of the current carrot and stick methods of the federal government would subside; that, and restoring the election of Senators by state legislatures.

Prof. Morrisey’s expository essay reminds me of how the terms “confederal” and “federal” were used so interchangeably. I sought to find a difference and picked up on two characterstics that differentiate the two:

1) A confederacy tended to not have delegated legislative powers in a central government,
2) and likewise tended to have a legislature convened on an as needed basis.

Otherwise the two terms were rather interchangeable in political science.

  1. Janine Turner says:

February 28, 2011 at 1:40 pm

I thank you Professor Morrisey, for your wonderful essay today! I personally feel so lucky to have the opportunity, as the co-chair of Constituting America, to not only be hosting this forum but to be learning from it, as well!! I never knew that in the Articles of the Confederation the legislative, executive and judicial branch all operated under one body – the congress. It is equally fascinating to concretely understand the amazing forethought of our founding fathers regarding the impeachment process – the independence of the people’s house yet the interdependence of the subsequent actions once an impeachment was initiated. The house initiates it, the senate holds the proceedings and the Chief Justice of the Supreme Court presides over it. Amazing! Once again, this process regarding impeachment reiterates the importance of three independent branches that must yet integrate to govern. Re: Article 1, Section 3, Clause 1 – I find the process of how they came to a compromise compelling. I’ve always known of the “great
compromise,” I now know it was the “Connecticut Compromise” due to Roger Sherman of Connecticut. It is interesting to understand the interpretations of Gouverneur Morris’ insights, then Madison’s and finally Sherman’s, not to mention John Adam’s inspiration of the bicameral
legislature! Divine providence, mixed with the talents of brilliant, learned men, both saved and lead the struggling country through it’s infancy. A republic was nurtured through it’s adolescence – now in adulthood – can we the people keep it? At this point, we can only keep it, through knowledge and sacrifice that parallels the passions of our founding fathers. Thank you Professor Morrisey and to all of you who are joining us! Spread the word about this forum!

No one should be secure while he violates the Constitution and the laws; every one should be secure while he observes them.”

  1. ThreeDogs says:

February 28, 2011 at 2:35 pm

I have to echo the sentiments of both Ralph and Ron in wondering what things would be like today without the 17th amendment. Looking forward to that discussion down the line.

Thanks Mr. Morrisey!

  1. Cutler says:

February 28, 2011 at 6:49 pm

The essay was interesting and enlightening, but I love the comments by Mr. Meier and Mr. Howarth. But no, that would be too close to the intentions of the Founding Fathers for the present Regime to tolerate. So for now we must use the present method to slowly take back the Senate with strong conservative leaders who, along with the public will take back America from those who would tear away its foundations.

  1. zac allen says:

February 28, 2011 at 7:58 pm

Well… The senators to this day should be sent there by our legistlature. Its what kept Federalism intact. That way they would be sent there representing the states an its best interest… if they didn’t they could be recalled. i.e… The bank bailout TARP resolution. Anyway…the 1930′s took a grat leap away from what our founders intended. As a side note…. Every time the media or politicians call us a democracy, they should be corrected, and remind them we are federal republic, with representive democracy….. Not mob rule

  1. Anglo says:

March 1, 2011 at 9:22 am

No one should be secure while he violates the Constitution and the laws; every one should be secure while he observes them.” in comparison to-Separated, balanced, but also interdependent branches of government, each exercising one of the three powers, could prevent tyrannical government without preventing firm government.

Such is the folly of the two party system when at any time it can hold dominance over any two of the three branches of government. Such as has and is being experienced today as there are sufficient grounds for impeachment to be exercised as concerning the executive branch.

May 14, 2010 – Federalist No. 13 – Advantage of the Union in Respect to Economy in Government, for the Independent Journal (Hamilton) – Guest Blogger: Dr. Will Morrisey, William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College

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Friday, May 14th, 2010

Federalist 13: Why Union?

Always, Americans face two questions: the question of regime; the question of the modern state.

By “regime” I mean three things: who rules; by what forms or institutions the rulers rule; and what way of life rulers and ruled will lead.  These three dimensions of the regime intertwine.  If, for example, a tyrant rules, he will require such institutions as a large standing army controlled exclusively by himself for internal policing as well as for conquest, a judiciary dependent on his will alone, and a legislature without independent powers.  If a tyrant rules, the way of life will encourage a moral atmosphere of mutual distrust and self-protective secrecy among neighbors, habits of fear punctuated by moments of terror.

If the people rule, the same thing might happen.  The popular majority might tyrannize as well as—maybe worse than—a `majority of one.’  Hence republicanism or representative government, a republic of extensive territory and population wherein no one faction may obtain a ruling majority.

The first fourteen numbers of The Federalist address the crucial question of regime—whether a people can truly govern themselves non-tyrannically, by reflection and choice, not accident and force. But they equally address the question of statism.

Modern political philosophers—in England, such men as Francis Bacon and Thomas Hobbes—sharply criticized feudalism.  A feudal society structures itself politically rather like a cinnamon roll: ruling authority organizes itself into swirls and morsels—an aristocrat here, a city there, with a king mixed in and a network of churches and common law courts throughout, each with more or less independent sources of power, sometimes overlapping one another but none simply superior to the others.

The statists did away with this.  Statesmen organize states along the lines of a wagon wheel, with a central hub of authority and spokes radiating out to the border.  Along these institutional spokes reside administrators or bureaucrats, beholden to the center for their appointments and salaries, exerting control over the population, now reconceived as the nation organized into the nation-state. From the center of the state commands and force flow out; to the center, recruits and revenues flow in, far more efficiently than under the feudal order.  Wherever a state appeared, neighboring political communities more or less needed to imitate it, lest the wheel roll over them.

For Bacon and Hobbes and their royal sponsors, the best regime for the modern state was monarchy, giving unity of command to the powerful state.  Having felt the pincers of monarchic statism, the Founders disagreed, with muskets.

But the defense of the natural rights enunciated in the Declaration of Independence via institutions of political liberty required the strength and unity that only a modern state could provide.  Only a state could muster the economic and military strength to defend itself against the surrounding European empires, with their contempt for republicanism.

Publius therefore puts the matter of federal union front and center in his introductory essays.   The Founders propose to solve the problem of republican self-government in a dangerous world of centralized, monarchist, imperial states by gathering military powers in a national government under popular control, with carefully enumerated, balanced, separated powers while leaving most domestic authority firmly in the hands of the governments of the several smaller states, where citizens can more readily govern themselves—states equally represented in one house of the national legislature.

In the thirteenth Federalist, Publius warns against disunion by appealing to Americans’ sense of economy.  Were we to divide into separate confederacies, the two or three new governments would nonetheless rule extensive territories, larger than those of the British Isles.  Instead of one federal government we would have at least two, with unnecessary duplication of ruling institutions and commensurately heavier expenses per capita.  If jealousies arose between these confederacies, commercial tariffs and larger militaries would further degrade prosperity.  North America would look more and more like the Europe from which Americans had declared their independence.  To those who look askance at a national government, Publius replies, one such thing is better than two or three.  To undertake to found thirteen such sovereignties would involve Americans in “a project too extravagant and too replete with danger to have many advocates.”

But can one government—even a carefully limited government—truly govern one such large territory?  Publius answers this question in his fourteenth essay, concluding his introduction to the new Constitution.

Will Morrisey holds the William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College.  His most recent books are Self-Government, The American Theme: Presidents of the Founding and Civil War, The Dilemma of Progressivism: How Roosevelt, Taft, and Wilson Reshaped the American Regime of Self-Government, and Regime Change: What It Is, Why It Matters.

31 Responses to “May 142010 – Federalist No13 – Advantage of the Union in Respect to Economy in Government, for the Independent Journal (Hamilton) – Guest Blogger: Dr. Will Morrisey, William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College”

  1. Ron Meier says:

    Thanks for such an interesting discussion of the underlying reasoning to what our founders were proposing, Dr. Morrisey. You’ve put it in a way that seems so simple, yet we and our representatives seem to prefer to make it complex. Who rules, by what form, and leading to what way of life; if only we could focus on that, instead of arguing about some of the minutia we hear every day in the media, perhaps our conclusions on the issues would become more clear, more quickly.

  2. Susan Craig says:

    The more I read, the more I’m struck with the truism that “What goes around comes around”. We are again arguing the size and structure of the best form of governance. The irony of the situation is that ‘strict constructionists’ in the late 1700′s were called Anti-Federalists and now they’re called Constitutionalists.

  3. Will Morrisey says:

    Thank you, sir. I deserve no credit, really. I’m only repeating what I learned from Aristotle’s “Politics” about forty years ago in Harry Clor’s class at Kenyon College, supplemented by what the late Robert Horwitz taught in his class on Machiavelli, Hobbes, Locke, and Rousseau.

  4. Shannon Castleman says:

    Dr. Morrisey, you said, “The Founders propose to solve the problem of republican self-government in a dangerous world of centralized, monarchist, imperial states by gathering military powers in a national government under popular control, with carefully enumerated, balanced, separated powers while leaving most domestic authority firmly in the hands of the governments of the several smaller states, where citizens can more readily govern themselves—..”

    Thanks for writing it like that. It makes it clear in my mind how the Founders thought, as well as their intentions for the new government.

    The notion that the federal government is basically responsible for protecxting the US while leaving the states to basically handle domestic idea—-I guess the 10th Amendment may apply here?

    Thanks!! Good thought on your part.

  5. Marc W. Stauffer says:

    Incredible explanation Doctor! Thank you for the insight. I think it was prudent of Publis to remind his fellow Americans what is was they were separated from as when a little time passes we tend to forget. The continued use of economic consequences to disunion is, as always the best “attention getter”. Economic, rather than moral consequences to actions, have, unfortunately, always received the quickest attentions and reactions from the populous. Explaining the economic disadvantages of disunion most likely stirred the senses of the people to see the folly of disunion…much like people today. We tend to look at our government in terms of economic remedies/gain and less at its moral implications. According to statistics we choose our elected officials most commonly by their economic views and less on their moral character/stances…something I believe that is causing a lot of the trouble we are experiencing today.

  6. Chuck Plano, Tx says:

    Now that we have learned through the first 14 Federalist Papers how our Founders envisioned the benefits of a Union of States formed into one national government with limited enumerated powers vested in the Federal Government and the powers not granted to the Federal System to remain with the People and the States. We now see how that system has been perverted and usurped by the Federal System in it’s grasp for uncontrolled power over the States and the People the question is how do we get back to the original intent of the Founders without the kind of action they envisioned would occur if there were no unified Federal Government.

  7. Will Morrisey says:

    Mr. Stauffer, I think that you make a good point about the contemporary attempt to emphasize economics at the expense of moral character. The Founders understood the relation between morality and economics in a much more careful way than we do. Throughout The Federalist Publius takes care to link morality with self-interest, but without reducing morality TO self-interest. The best example of this may be seen not in The Federalist but in George Washington’s Farewell Address, which is also a defense of federal union.
    For example, here in #13 Publius defends union on economic grounds; however, as previous papers have already made clear, the purpose of union is American prosperity in the comprehensive sense–ultimately, the defense of activities that conduce to human flourishing in a regime that defends the natural rights of its citizens. The later habit of looking to our government for economic remedies, which you remark, tends toward passivity and attitudes of dependence, not self-government.

  8. Maggie says:

    @ chuck…..You asked the question, “how do we get back to the original intent of the Founders without the kind of action they envisioned would occur if there were no unified Federal Government?” I do believe there are ways….the question is will people be willing to make the sacrifices necessary to get us back to our Founders’ original intent? Many of us HERE are, I am quite certain…..but most of us have already made many sacrifices trying to survive the government largess. Those that still NEED to make the sacrifices are least likely to be willing to make ANY.

    Thank you so much for your wonderful essay Dr. Morrisey and for your willingness to come back and give further insight throughout the day.

  9. Chuck Plano, Tx says:

    Maggie you have made my point, the fact that so many of our citizens today have “no” investment in our government today. What i mean by that is they pay nothing or very little for the cost of the government we have that they do not see any need to change it. Those who are willing will do those who are unwilling will not and i am afraid that we have way too many who are unwilling today.

  10. Dave says:

    Thank you Professor Morrisey for sharing your thoughts on Federalist No13 and jump-starting my brain this morning. Hamilton seemed to know which buttons to push to get the citizens of New York to go along with the plan of union–their security and their pocket-book. Could it be the case that Hamilton was right in November of 1787, but might be wrong in the long run? Or to put it another way, is there a limit to the size of a republic such as ours; and are their certain characteristics of the governed which will either foster or inhibit the expansion–did he really think that virtue would remain the defining characteristic of the populace as the “celebrated Montesquieu” said it must? I agree with the Federalists that the circumstances at the time pointed towards union as the only means of survival. The Articles of Confederation were deficient in a number of respects and enemies were ravaging America’s trade on the high seas.

    Based on experience, which Hamilton will call “that best oracle of wisdom” (No. 15) and Madison will call “the oracle of truth” (No. 20), can we not infer that any particular structure made by man, according to any applicable natural laws, will have a necessary limit? Can the integrity and composition of the parts be maintained to continue to support the whole?–Will the wheel simply collapse at some point? Hamilton’s focus was mainly external; and rightly so. But even Madison (No. 10 & 51) didn’t foresee any problems (as long as virtue was predominant.) He thought that an extended republic, composed of many different interests and where the combining of interests was difficult, would be a sufficient guard of the people’s liberty.

    As our attitude and outlook become more and more national as opposed to federal, and as more and more power, control, and money coalesce in Washington D. C., I see more and more waste, fraud, and oppression. We may not have a national plebiscite but through modern media a national consensus is “reached” to determine national policies on any number of topics–healthcare, immigration, energy use. Modern communication seems to vitiate Madison’s argument for extended republics. Today, small, vocal, well-placed factions can combine quite easily and gain power. There does seem to be a tendency for political power to follow some sort exponential growth curve (maybe it’s “Power tends to coalesce, and absolute power coalesces absolutely.) Is there a vicious cycle with the increasing public sector depending on a decreasing private sector?

    For external concerns, a centralized government is probably the answer. But for local, private concerns, local government is best. The best government is that government which governs closest to the people. As John Adams wrote to Jefferson, “Human nature, know thyself.” A republic composed of citizens lacking virtue is not long for this world.

  11. Marc W. Stauffer says:

    Mr. Morrisey;
    I agree with your thought, “Throughout The Federalist Publius takes care to link morality with self-interest, but without reducing morality TO self-interest.”
    Exclusive self interest is the blinded path to a Unions destruction. Mutual interest must be taught in the formative years of life lest self interest take firm root.
    Many generations have been taught economic based history rather than history with its eye on the motives and morality and as such we have lost touch with the original intents of our Founders or great leaders. President Woodrow Wilson said; “A Nation which does not remember what it was yesterday, does not know what it is today, nor what it is trying to do. We are trying to do a futile thing if we don’t know where we have come from, or what we have been about”.
    Many history books, my High School history text (1977) included, are going as far as to expunge any morality or mutual interest from their text. This, unfortunately, leads our youthful generations to the self-serve trough without care as to how personal success is accomplished, only looking at the economic gains/losses of a situation. It also leads to an unhealthy reliance on “nanny state” governance to control those economic factors. Things which we are now seeing blossom forth.

  12. Shannon Castleman says:

    Chuck and Maggie, I do not know either. But I think the best vehicle for getting back to the intent of our Founders would be to have a few Governors (look at Chris Christie of NJ, maybe Rick Perry of TX, maybe Jan Brewer of AZ) stand together and say “NO MORE MANDATES.”

    If we could find just 4-5 men and women Governors of integrity who will stand up to the federal government-even if that meant a stand off with federal police authorities- and proclaim the 10th Amendment alive again, then PUR movement will gain some traction. It will gain credibility.

    Remember the movie “Braveheart” when William Wallace pursuaded Bruce the Earl to lead his people? I am paraphrasing but he says something like, “People don’t follow titles, they follow leadership. They will follow you if you will just lead them. I see it in you.”

    That is what need today, because no one is going to take “normal” citizens like us seriously. We need people with some credibility in the government sector-Governors. 90% of Congress can’t provide that leadership, but I believe 4-5 Governors could start a snowball, mixed with the Tea Party movement.

    Any thoughts?

  13. Mrs. Stone says:

    It’s interesting to see how knowledgeable our founders are about the world around them. Although people like Newt Gingrich speak in ways that convince me that they have an informed historical perspective, it is hard to see that in a lot of our countries leaders.

    Hamilton gives a very interesting insight into why the nations of Europe were constantly fighting one another and what we should do to avoid it. Without minimizing our nation’s civil war it is telling that the actual conflicts on our own nation’s soil have been limited over the year that our nation has been in existence and that proves that Hamilton really understood the importance of us having one nation here in America instead of 3 or 4.

  14. Chuck Plano, Tx says:

    Shannon you are right but we must motivate the people to stand with those Governors and let them know that we will be there to support their efforts. That is why it is so important to let Arizona know that we support their efforts in the immigration fight. It is not about profiling or any thing else but protecting the citizens where the Federal Government has refused to do so. If “We” The People let the Federal Government run over Arizona then what is left for the rest of us but the same.

  15. Ron Meier says:

    Good point Shannon. It doesn’t take a majority of Governors to make something happen; it takes just a few strong willed Governors willing to stand up and say no. The Governors have failed, over many decades, to stand up to the Congress and say no to mandates that come with almost any money the feds distribute, for example, for highway construction, education, etc. As originally constructed, as I read these papers, the States made sure the Constitution protected their rights as States. Somewhere along the line, they seem to have allowed the federal government to effectively override their own rights on the larger local issues, such as education. We’re fortunate to have some strong leaders at schools like Hillsdale College say no to federal money so they were not forced to do things they felt were contrary to their own values. If only we can get some of our Governors to do the same thing. The ones you’ve named are a great start; let’s hope more come along with them, especially after the November elections, when we are more likely to have change at the State houses.

  16. Jeff Hill says:

    Susan, you have made clear some feeling I have had while reading along, that the Anti-Federalists often had arguments equally as compelling as the Federalists. And issues that dominated the Constitutional Convention are still, or once again, being debated today.

  17. Will Morrisey says:

    Dave, thanks for that excellent post. My own view is that it’s impossible to posit a natural limit to a commercial republic, but in practical terms every such republic will find such a limit, depending upon its neighbors. The oceans pretty much set such a limit, east and west, with the eventual exception of Hawaii and other smaller holdings in the Pacific. No sensible person supposed that we would actually integrate the Philippines permanently into the United States, for example. British Canada set such a limit on the United States to the north. Mexico turned out to be the complicated case; we solved the problem for more than a century by seizing its underpopulated, northern sections and effecting a regime change in the capital.
    Another way of putting it is to say that an extended, commercial republic must eventually find some limit; the question will then be whether it can secure its borders militarily but in the final analysis politically. It can do so politically if the neighboring regimes are also commercial republics. It helps if they are also weaker.
    In my opinion, the statism that you and I worry about derives not from the size of the territory but from the change in the regime effected by the Progressives in the last century. The Progressives managed to legitimate a much more extensive, bureaucratic state than anything seen here before, taking their cues from German political thought and practice. Germany had unified the 37 or so German states under the Kaiser; Bismarck organized a substantial welfare state along with a formidable army. Many of the American intellectuals who founded `political science’ as an academic discipline in the 1880s (the young Woodrow Wilson among them) studied in Germany, so they picked these ideas up right at the source.

  18. What a great dialogue today. I thank all of you for joining and I also thank Dr. Will Morrisey for his wonderful interpretation of today’s paper and The Federalist in general. It was super grand that Dr. Morrisey revisited our blog throughout the day! Thank you, Dr. Morrisey!

    I feel lucky to be having this national conversational/blog regarding something as important as the founding framework of our country. Understanding this foundation will be the basis for maintaining our great republic. By great, I don’t simply mean powerful or rich, but I mean virtuous and free – free to think, free to live, free to express, free to fail, free to succeed, free to speak, free to worship.

    There truly is a “180” movement in our country. Recently, a candidate was ousted and it was revealed by the constituents that it wasn’t because of the usual concerns such as: the economy or terrorism. It was because he didn’t heed the United States Constitution. Posing these questions, pondering these truths may lead our present and future congressmen and women to pause, pause upon the principles of our country and hence reflect principled behavior. We shall insist upon it as the future of our country depends upon it.

    Through this process, our “90 in 90,” I am gleaning a deeper understanding of my, until recently mostly intuitive and instinctive, aversion to big government.

    Publius argues forthrightly about the benefits of a strong union. This makes perfect sense as they lay out their arguments, most compellingly by their comparisons to Europe. The United States could have easily succumbed to a similar scenario, mirroring the divided countries of Europe. Our founding father’s persuasive passions to unite the colonies were truly Providential.

    Yet, never do I interpret the United States Constitution, or the Federalist Papers, with the objective of obtaining a strong, overbearing Federal government. They wanted focus, fortitude and fluidity – yet never to be a tourniquet impeding the states’ rights – the states’ rights to diversify in spirit, make decisions best representing their local domain and maintaining the wherewithal to do so.

    The question thus begs: how do we cut the line of dependency, dependency on federal bait and bargain?

    Like a fish caught on the bait, we are flapping in the wind. If only, “catch and release” were an option perhaps then we could swim in the big pong together yet maintain our different stripes.

    God Bless,

    Janine Turner

    May 142010

  19. Andy Sparks says:

    Im going to say something controversial in answer to the implied question of Ron’s statement “Somewhere along the line, they seem to have allowed the federal government to effectively override their own rights”: The the issue is slavery. If slavery had not been defended to the point of secession by the Confederate states, I don’t believe we would now have as bloated and powerful a federal government as we have today.

    While the Federalist papers do not touch on the subject of slavery, it is the proverbial elephant in the middle of the room throughout U.S. history up until 1861 when shots were fired and the union was torn asunder. Without that peculiar institution, it is my belief that we would have a more balanced power between the federal government and the state governments. Without the Civil War, there would be no 14th ammendment which once and for all declared the federal government as supreme.

    A lot of Lost Causers will scream “Hallelujah”, but I approach the subject from a different viewpoint. Unlike their belief that Abe Lincoln was a tyrant; I say that the southern states that promoted and defended their institution to the tune of 600,000 dead were more to blame for the current situation of states playing second fiddle to the central government. How we can transfer back the power of the federal government back to the states, I don’t know; but I do know how we got here, and it started when the founding fathers refused to deal with the issue of slavery that quite possibly would have prevented the union from forming in the first place.

  20. SUPER stuff !I think the first thing I want to say is about the “disunion” that pleges us today. We are divided and it seems that Obama is not given to putting things back together,but into factions serving what he believes will promote his idology. He is displaying an arrogance a times which concerns me a lot. I wonder if he realizes that a man is diminished to the degree that he indulges his arrogance?AZ is a perfect example of this, he makes a joke about the PEOPLE of that state while his failure to deal with immigration while a 900 lb gorillia standing at his shoulder as his jokes cleverly distort .His Attorney General threatens to sue AZ,but never read the bill he is objecting to. Obama addresses a graduation class and implies that too much tech, may be harmful??????What on earth????Is he afraid of too much information that may encourage deeper thought about matters facing us today????I think most people are feeling concerned about the deficite,and the spending at the hands this Administration ,and there seems to be no end to the billions and now trillions that are now weighing us down, and making us vunerable .
    We have much to do and I suppose the first thing is to engage in places like this. Thank you so much for all your hard work and creating this site. November may serve as a bell weather and surly information will underpin our sucess.
    I think our founders would be going cross eyed if they were to see things today.Their beautiful carfully constructed thoughts/principles were a gift to the ages and I do hope we can blow off the dust of the times,we allowed to settle in on them and revitalize them.

  21. Maggie says:

    Shannon you are so right and I am glad to see that a few Governors are starting to take a stand. Even Arnold S. is talking about cutting entitlements in Calif. It remains to be seen if he is all talk and no action or if he’ll actually do what needs to be done. If he actually goes through with it, it will be interesting to see how many other states follow suit.

  22. Roger Jett says:

    Shannon Castleman, I especially enjoyed your earlier comments on what it will take to get us turned back toward what the Founders intended. I’d like to point out though that before Robert the Bruce became “the lion in the north”, it was the acts, deeds and exploits of the “normal citizen” William Wallace that united the diverse clans and rallied them to resist tyranny. Before Stirling Bridge and Falkirk and long before Bannockburn there were the skirmishes and battles of Lanark ,Loudoun Hill, Ayr, Scone, Aberdeen and Perth. Before the nobles resolved that they would lead the fight, the common people determined and declared that they would be free and be independent. It was a long road, not a short one. I’m reminded of what Paul S. Gillespie said a few days ago, in reference to Federalist No. 11, “We are quickly loosing our ability to remain free and independent, because unlike Hamilton who obviously took the long view, we have concerned ourselves with the expediency of the moment and see only the quick fix from the short view”.

  23. Susan Craig says:

    Andy, in the battle to return to the founding principles you are half way there. There is a principle that says in order to fix a problem one first has to correctly identify it and how it came to be. It is only then that effective strategies can be formulated.

  24. Dale Pettit says:

    We are all on this boat together and just maybe this study is the flick of the wrist that changes our direction. We are seeing signs that a new atmosphere of attitude is rising. The recent ousting of incumbents or life long politicians is a sign. I pray that our simple response to a long over ignored actions of our politicians is not too late.

    The national debt, promises of future entitlements, and actions to devalue our currency to zero is bankrupting our nation and it’s citizens. Our position and strength to be a major world power has tanked significantly because over the last 100 years our selected leaders forgot to defend our constitution. Or……our citizens did not know enough to be more selective. They did not know what they had or did not know that we have to take an active part in our government actions.

    Yes we have to have leadership because many will follow. Getting traction and attention for these ideas is a real challenge.

    Thanks to all of you for this study.

  25. Dave says:

    Roger, I liked what you seemed to suggest about the common people, the individual, being a key to solving our current crisis of liberty. Many Americans (myself included) have not been paying attention as a century-long, ever-so-subtle incremental drift away from our founding principles has put our liberty in some jeopardy. Dr. Morrisey mentioned the Progressives and how they view the governing of our country. In my limited reading of the Progressives (mostly selections from American Progressivism by another Hillsdale educator, Ronald J. Pestritto), they seem to have a firm belief in the perfectibility of man brought about by just the right social and political control. And there are academic, legal, political, and artistic elites who have the “wisdom” and good intentions to “improve” upon our founding principles so that we can attain the perfection they so ardently desire for us.

    I know the modern elites are really, really smart and everything, but I think I’ll stick with the Founders. Informed not only by their religious sentiments, but also by their study of human history and man’s various attempts to form civil societies; they accepted man as an imperfect being, and the structure of any suitable government would take into account man as he truly is not as he might be imagined in some utopian, fantasy world. How smart were the Founders? I recently heard a scholar say that President Kennedy’s quip about Jefferson dining alone was probably literally true–”I think this is the most extraordinary collection of talent, of human knowledge, that has ever been gathered together at the White House, with the possible exception of when Thomas Jefferson dined alone.” (Remarks at a dinner honoring Nobel Prize winners of the Western Hemisphere. 4/29/62)

    The increasing centralization of power and tax dollars in Washington would horrify the Founders. They did not fight a revolution against the centralized power of the King and Parliament only to have it brought 4000 miles here to Washington to exercise tyrannical power over the individual American. Our founding document the Declaration of Independence tells us where the Founders put their political faith and trust, and it wasn’t in the State. It was in the certain unalienable rights of the individual. We possess those rights independent of any government. We establish government to secure our rights. Ours is a protector government not a provider government.

    We have lost that necessary faith in the enlightened self-determination of the autonomous individual exerting his free will in a material world governed by natural laws. If Ludwig von Mises is right that “government is essentially the negation of liberty,” individuals who innately yearn to be free, will always come to be frustrated by looking to a bigger and bigger government to make their life choices for them. One of the greatest gifts God has given us is free will; without it life would cease to have any meaning.

  26. Paul S. Gillespie says:

    Thanks for quoting me Roger. Its nice to be remembered. I was otherwise occupied yesterday, but am catching up this morning. Great comments by everyone following a thoughtful essay by Dr. Will Morrisey. I do however take great exception to Andy Spark’s idea that slavery was the chief cause of the War for Southern Independence. (Civil War is used incorrectly in this type of conflict)
    States Rights, much a concern today, was the key issue to the South. On this subject, the South was entirely right as we see the present subjugation of the States to the actions of an all powerful federal government. The main issue to the North was not slavery but revenue. Over 60% of Federal income, distributed unevenly to Northern States came from Southern States. Most Northerners had no strong feelings about Southern succession until the Northern newspapers and banks started pointing out the need of the North for the continued wealth of the South. (Before the war, Mississippi was actually the richest State in the Union) When asked why he was against the South leaving the Union, Abe Lincoln replied: “Where would we get our income?”
    It was only when the “greenbacks”,through rapid inflation from printed money had caused more financial problems than lost revenue did the North need another reason the shore up faltering support for conquering the South.
    A quick look at the laws most of the Northern States restricting the rights, freedoms and movements of the non slave black population, makes it very evident that no Northern State was willing to start a war with the South to free a black person. But since the Union was already knee deep in blood and debt…why the hell not try to put a moral face on their actions.
    I agree that the resulting 14th Amendment has its flaws and should be repealed, but lets not throw out the baby with the bathwater. It does restrict the States from passing laws that infringe on our Bill of Rights.

  27. Andy Sparks says:

    If you don’t think slavery was a chief cause of the Civil War, then you look at history with a jaundiced eye. True, economics was an underlying cause of conflict, but you have to look deeper than the surface; something lost causers and slave state sympathizers refuse to do.

    I don’t disagree that the northern states are without culpability in the livelihood of the peculiar institution, but to point to the non-slave holding states as the ignoble precipitators of the war is disingenuous. If the cotton-growing states had been willing to confine their slave holding status to those within which they currently existed, there might not have been an issue. Likewise, and more to my point, if the institution had been irradicated at the outset of the Constitution, then the likelihood exists that a war would have been avoided entirely.

    Unfortunately, with help from the 3/5′s clause, the Southern states dominated the presidency, Congress, and even the Judiciary (Andrew Jackson alone appointed 7 of 9 supreme court justices including Chief Justice Roger B. Taney). Only when immigration and westward expansion from 1815 onwards precipitated a transition of power from congress to the northern states did congressmen like Jefferson Davis worry that the government would shift power towards the rapidly industrializing north.

    It wasn’t northern financial improprieties that led to a war; it was the south trying to hold on to its power based on an already antedated institution that led to war. Try as you might to blame something other than slavery on the war, if you know your history and the underlying causes to straw man excuses like the tariff and states’ right, then you know that slavery was the principal cause of the Civil War.

  28. Kay Tournay says:

    How fortunate you were to have Harry Clor for a teacher – would that all our kids in government schools could, too. That’s not possible, so, we all must become Harry Clors (read, read, read) and find opportunities to re-educate America’s children on the exceptionalism of America!

  29. Christopher says:

    It is truly exciting to see how interested people like Hamilton were in promoting industry and business. When I look at essay #14 I see a much more robust concept — government should facilitate commerce not restrict it. The limited powers of the federal government look much more logical when I see that encouraging commerce through the post office, highways and interstate trade were explicit powers. I guess I’m now wondering what happened that caused us to get off track today? It often seems that rather than facilitating commerce, many in government see it as they job to try to stop business in its tracks.

  30. Mark Dixon says:

    This is an amazing site and Janine and Cathy have really made the essays relevant. The contributors you guys have found as guest bloggers are awesome. I want to say thank you so much for doing this!

  31. Will says:

    “When asked why he was against the South leaving the Union, Abe Lincoln replied: ‘Where would we get our income?’ ”

    Do you have a link for that or a text for attribution? I’m curious to see the remaining context of that Lincoln quote.

 

May 27, 2010 – Federalist No. 22 – The Same Subject Continued: Other Defects of the Present Confederation, From the New York Packet (Hamilton) – Guest Blogger: Dr. Will Morrisey, William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College

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Thursday, May 27th, 2010

The Federalist #22: In Defense of Politics

Publius here concludes his critique of the old constitution, the Articles of Confederation, a critique he began with Federalist #15.  To understand this critique, we need to step back and consider the problem the Founders intended to solve: Can modern states practice politics?  This seems an odd question.  There seems to be no shortage of politics in the modern world.  And why should politics—messy, compromising, frustrating, roiling politics—be something anyone would want to encourage, anyway?

Undeniably, politics has aroused the interest of the greatest minds: Plato titles his most famous dialogue Politeia, which means “regime”; Aristotle devotes an entire book to politics.  In that book, Aristotle points to the family as the embryo of politics; in the household we can see the DNA of political life.  Aristotle identifies three kinds of rule within every family: the rule of master over slave, whereby the ruler commands the ruled for the benefit of the ruler; the rule of parent over child, whereby the ruler commands the ruled for the benefit of the ruled; and the reciprocal rule of husband and wife, in its proper form a consensual rule animated by discussion and compromise—“ruling and being ruled,” as Aristotle puts it.  An overbearing spouse acts like a master or parent toward one who does not by nature deserve to be treated like a slave or a child.  Genuinely political rule consists of this consensual rule, rule along the marital rather than the masterly or parental model.  In human societies only tyrants attempt masterly rule, only kings attempt to rule as if they were fathers of their countrymen.

The small, ancient polis and the larger feudal communities lent themselves readily to political rule.  In a polis, where everyone knows everyone else, unquestioned rule of one over many seldom lasts.  Under feudalism, the presence of numerous titled aristocrats, each with his own independent source of revenue and of military recruits, will not submit to tyranny forever, as King John of England should have learned at Runnymede, but didn’t.

By contrast, the political engine of the modern world, the state, threatens to put an end to political rule, to make all rulers rule in masterly/tyrannical or parental/ authoritarian modes.  Large and centralized, the state can mortally compromise all independent bases of authority in its domain, repressing any need to discuss or compromise.  At the same time, the very power the modern state marshals requires all neighboring societies to institute states of their own, upon pain of conquest.

The Founders thus attempted something that seemed impossible: To constitute a modern state that is sufficiently powerful to defend itself against other states but nonetheless political, not masterly or tyrannical.  They solved the problem in principle by adopting and refining the idea of federalism.  A single, centralized state stunts political life, but if that state can be made to consist of a set of smaller communities, each with governing to do—townships, counties, and smaller states, all with their own responsibilities, and their own elected representatives—then politics can continue to flourish in the modern world.

Why should we want it to?  Because, as Aristotle argues, human beings differ from all the other animals in their capacity to speak and reason: If I say `Jump’ and allow you to say no more than, `How high?’ you may be speaking but you are not reasoning.  Your character as a human being suffers.  In political life, you can talk back. To be sure, at some point, you will run up against the `being ruled’ side of the Aristotelian equation.  But so will everyone else.

The Articles constitution tried to protect political life by keeping most of the American states small enough to feature political life but strong enough to be sovereign—even as, in federation, they multiplied their strength to fend off enemy states.  As Publius has argued in this series, however, the Articles constitution contradicted itself.  The general or federal government could only raise revenues and soldiers with the consent of the member states.  But there can be no “sovereignty over sovereigns.”  Disunion threatened.  Foreigners sneered and circled for the kill.

Publius lists seven additional defects of the Articles, all of them flowing from this overarching defect.  As seen in #21, the first three of these defects are the lack of sanctions for violations of federal law; the lack of any guarantee of mutual aid in case of usurpation within any one state; and the lack of any common standard for determining the revenues each state owes to the general government that protects them.

Publius now turns to the remaining defects, both material and moral.  Materially, the structure of government under the Articles constitution impedes national commerce by allowing member states to enact protective tariffs against one another.  Morally, this inclines each state to treat others as “foreigners and aliens”—the way Europeans do. Materially, the federal government also wields inadequate military strength, as states remote from the battlefields have little incentive to contribute men or material; morally, this leads to “inequality and injustice among the members.”

Speaking of inequality and injustice, equal representation of each state in the unicameral Articles Congress “contradicts that fundamental maxim of republican government, which requires that the sense of the majority should prevail.”  Why will—why should—New York and Virginia long tolerate a government that allows tiny Delaware or Rhode Island to hamstring it?  Especially if the legislatures of the small states were to fall under the influence of foreign powers, and not republican ones.

To these economic, military, and political defects of the existing government, Publius adds another problem with the legal system.  Not only does it have no power to enforce Congressional laws, it lacks a federal judiciary to oversee “a uniform rule of civil justice.”  Without a federal judiciary, encroachment of federal authority by the states can find no defenders beyond the military; force, not law, will rule.

The Articles government has only one ruling institution, the Congress.  The absence of other independent but complementary branches of government might have undermined genuinely political life in the United States, except that the framers of the Articles made the Congress more or less impotent vis-à-vis the member states.  But this caused another problem.  Unqualifiedly sovereign member states will incline to violate the fundamental law of contract, of government by consent: That no party to any contract may excuse himself from the terms of the contract without the consent of the other parties.

Therefore, the new constitution will require ratification not by the governments of the states but by the people of each state, and moreover by the people of states now to be united by the only true rulers of a republican regime.  This new governing contract, “flow[ing] from that pure, original source of all legitimate authority,” will supply the national means needed to secure the national ends listed in the Preamble.  Therefore, also, the new and more powerful wielder of those means, the federal government, can no longer rest in the hands of one ruling institution, but in the tripartite structure of legislative, executive, and judicial branches.  This newly-devised institutional structure for American self-government can preserve politics, reciprocal ruling-and-being-ruled, at the highest level of American government without necessarily exposing Americans to conquest by imperial monarchies.

Will Morrisey is William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College.

14 Responses to “May 27, 2010Federalist No. 22 – The Same Subject Continued: Other Defects of the Present Confederation, From the New York Packet (Hamilton) – Guest Blogger: Dr. Will Morrisey, William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College

  1. Shannon Castleman says:

    There are some people who condemn people like Hamilton for being the “first types of big government politicians, because of the desire for a National Bank, and stronger central government.

    In my opinion, these groups of Federalist essays proves those naysayers wrong.

    The “Federalists” didn’t want BIGGER goverment, they wanted a WORKABLE governmet. We need to put ourselves in Hamilton’s shoes, where we see a government not even strong enough to raise revenues, or strong enough t raise a military. Of course we needed a “bigger” government a that time, or we woul have gone the way of Europe.

    Hamilton would in no way support “bigger” government if he awakened in 2010 America.

  2. Susan Craig says:

    Genuinely political rule consists of this consensual rule, rule along the marital rather than the masterly or parental model.  While Publius makes a great argument against the Articles of Confederation, I seriously doubt that he wanted the political pendulum to have swung so far that the power to exercise it in a paternalistic manner [such as today]. Professor Morrissey is profound when he points out that A single, centralized state stunts political life, but if that state can be made to consist of a set of smaller communities, each with governing to do—townships, counties, and smaller states, all with their own responsibilities, and their own elected representatives—then politics can continue to flourish in the modern world.
    American states small enough to feature political life but strong enough to be sovereign—even as, in federation, they multiplied their strength to fend off enemy states.

  3. Charles Babb says:

    Hamilton seems to be saying that, if the proposed new constitution is not adopted and if the existing foundation of government (Articles of Confederation) can survive the aggression of greedy, self serving men, it will evolve, bit-by-bit, into a structure of government not desirous by anyone.

    Is this not exactly what has happened to our Constitution? Have not (career) politician’s ignored the obvious wishes of the electorate, hiding behind (and serving instead) the power of political parties. No longer do they just overstep Constitutional authority, they thumb their noses at us and stomp all over it.

    If this were not so, why would an elected official have to hide what goes on in her office from view of the “public” she (or he) swore an oath to serve.

    Few of them today, would acknowledge that “The fabric of American empire ought to rest on the solid basis of THE CONSENT OF THE PEOPLE. The streams of national power ought to flow immediately from that pure, original fountain of all legitimate authority.”

  4. Sorry guys, I thought I posted this last night.. I’ll check in later on Federalist Paper No. 22 :)

    Well, small business profits are on the decline and government provided benefits are on the rise. Carolyn, I read your blog and I also heard about these frightening statistics today. Socialism is rearing its ugly head. Next will be the general demise of spirit and motivation in our country. This exact scenario was predicted by Samuel Adams in his warning over two hundred years ago, “The pooling of property and redistributing of wealth are both despotic and unconstitutional.”

    As duly noted in last night’s reading of Federalist No. 20. We must learn from the experience of history. It makes no sense, and has been proven by history, that if a country becomes a nanny state and feeds the people’s every whim, punishes the hard working enterprising people, snuffs the spirit of business by taking over their free enterprise then the country and her citizens become mired down with a lack of motivation.

    If motivation is at a minimum, productivity ceases to prevail and if productivity ceases to prevail then there is no money for the nanny. If the nanny does not provide then the people rebel. When the people rebel then there is a need for a strong force to control. Enter Tyranny. Good-bye Democracy. Good-bye Republic.

    Carpe Diem. We must seize the day and reverse course while we can. This begins with knowledge and fortification. Wisdom whispers in the words of Publius.
    The answers are in the United States Constitution.
    Spread the word.

    God Bless,

    Janine Turner
    P.S. I thank you Horace Cooper for joining us today and for your brilliant insights

  5. Susan Craig says:

    Power corrupts, the founders tried to hedge the access to power so that absolute power could not be concentrated to corrupt absolutely.

  6. marjay says:

    The problem with the National Bank is that when it was created in 1913, it was privatized. Jefferson warned again that. The Federal Reserve Bank is not an entity of the federal government at all. It is a privately owned and operated business. This fact is not commonly known. The bankers who own it have benefit of the interest derived therefrom, coming from loans to the federal government, using money the bank has CREATED. That interest money belongs in the nations coffers, not in the hands of the bankers. Article 1, Section 8, gives CONGRESS the power to coin money and determine its value, not private BANKERS, which is how Lincoln financed the Civil War, after private bankers refused to loan him money. Giving congress that power was a marvelous arrangement, subject to voter approval every two years at election time. That power was delivered up to what I would call “tyrants” when my grandparents were children. The Federal Reserve has never been audited. No doubt such an audit, which should be mandatory, would reveal an amazing history.

  7. Roger Jett says:

    Charles Babb, While I can readily agree with much of what you said in your post earlier today, I have to ask you to rethink on a couple of things. First of all, I wished you had worded a little differently your phrases, ” The fabric of the American empire ought to rest on the solid basis of THE CONSENT OF THE PEOPLE. The streams of national power ought to to flow immediately from that pure, original fountain of all legitimate authority”. Some might think that I’m arguing semantics , but I don’t think that the two words, “American” and
    “empire” should ever fall side by side when the subject is regarding our government. Empires have a single sovereign ruler and they are usually referred to as an “emperor”. I believe what you are saying …. the point that you are emphasizing is that ” the people” are the legitimate authority upon which our elected government officials gain their powers. As Dr. Morrisey points out as he quotes Hamilton, that it is fundamental to a republican form of government which “requires that the sense of the majority should prevail.” However, I’d like to emphasize that under our Constitution there are protections of unalienable rights for the individual as well as rights to the minorities, that government must respect. What may become deemed as the “CONSENT OF THE PEOPLE”, is not necessarily a determinant of what is fair and in the interest of justice. Under that concept, a majority of my neighbors might up and decide to take some of my property for public benefit without making effort to give me just compensation. Fortunately the Constitution even protects us from ourselves in that sense. The stream you speak of is in reality not that pure.

  8. Charles Babb says:

    @Roger Jett; I certainly can’t argue that point; that was just a copy and paste of Mr. Hamilton’s words. That’s why I included the quotation marks.

  9. Carolyn Attaway says:

    I find it amazing that with all the writing of how America should form a Federal Government to ensure commerce and national security, the founders wanted to keep the integrity of the free market system sound and thriving. If we travel back to Jamestown, many historians debate that with the Virginia Company being a publically traded company, English America was a corporation before it was a country. Our roots are founded in the entrepreneurial spirit of risk, hard work, and reward.

    To borrow the words from the novel “Love and Hate in Jamestown” by David A. Price: In their war for independence and their struggle to create a constitution, the Founders themselves had shown the same pragmatic qualities of mind that rendered Smith a hero. The actions of Smith, like the actions of the Founders, also point to a shared outlook on life; one in which a person does not look inward and wait for life to reveal its answers, for life itself is the one carrying out the interrogation. More than most people, Smith and the Founders attempted to answer the questions that life was constantly asking them-or, rather, the single question it asked them, and asks us, over and over. Life presented them with a series of astonishing possibilities and all-engulfing obstacles, all the while whispering to them:
    What are you going to do?
    What are you going to do?
    What are you going to do?

    Have we come to that place in history again?

    One has to wonder when our country is being invaded by illegal immigrants of many nationalities by crossing the southern border, and you hear news like this:

    “US National Guard troops being sent to the Mexican border will be used to stem the flow of guns and drugs across the frontier and not to enforce US immigration laws, the State Department said Wednesday. The clarification came after the Mexican government urged Washington not to use the additional troops to go after illegal immigrants. President Barack Obama on Tuesday authorized the deployment of up to 1,200 additional troops to border areas but State Department spokesman Philip Crowley told reporters, “It’s not about immigration.” Link: http://www.breitbart.com

  10. Jimmy Green says:

    Hamilton’s desire to have a Federal Government regulate commerce between the states seems reasonable at first, forgetting momentarily of the disaster this has lead to today. It would I think allow developing a more standard set of trade rules and I suppose it would give foreign nations more confidence in one regulated system instead of dealing with thirteen colonies, or would it. I would almost suggest that left alone the states would develop a set of mutually advantageous trade rules to simply improve trade. Although still for foreign nations it is easier to negotiate one treaty not thirteen.

    I think more insightful of weakness in a confederacy is as Hamilton states “want of a judiciary power”. A federal court system with a Supreme Court that unifies and enforces the states with a uniform set of laws is paramount. Again momentarily forgetting the disaster those unelected oracles in robes unleashed on the states via the commerce act among others. It seems obvious any united anything requires a federal court system, or does it.

    On the issue of “equal suffrage among the states” it seems correct that in the Union through representation by numbers it would be better balanced. The state with a larger population would have more house members then a state of lesser population. However Hamilton’s belief that giving the minority the ability to stop or hinder the majority is wrong is not always practiced. In the legislature the filibuster by a single congressman is used to delay or obstruct a vote on some proposal or bill.

    Interestingly in the U.N. the Security Council is comprised of 5 countries but India with the second largest population after China is not one of them. I’m not sure how the U.N. would be classified. It’s a bizarre organization of the worst kind more akin to a dysfunctional feudal system then anything else.

    Many of Hamilton’s beliefs were correct in theory. With hindsight we can trace many of the losses of state sovereignty back directly to these arguments that Hamilton would have not imagined. However the expansion of the Federal Government is, I believe, a simple result of the complacency of the states and people resulting in a power vacuum the Feds were more then happy to fill.

  11. Roger Jett says:

    Charles Babb, Please accept my apology for the earlier post. As Andy Griffith once said, “the rest of the family is eating chicken for supper, but I’m having crow.” Also, just in case you are wondering, my foot size is a twelve and yes it was a tight fit even in my big mouth.

  12. Kay says:

    Thank you Dr. Morrissey for walking us through Federalist No. 22! Publius certainly covers a lot of ground in this Federalist Paper! If only our current elected officials would take the time to methodically explain major proposed legislation in this manner. Our “sound bite” culture and collective short attention span does not lend itself to deeply and thoroughly understanding the many issues facing us.

    The weaknesses of the Articles of Confederation were many: lack of federal regulation of commerce, including foreign commerce and interstate commerce; the weakness of the state quota system for raising armies; problems of equal suffrage among the states; the weaknesses of the 2/3 majority requirement for important resolutions ; lack of “one Supreme Tribunal,” and overall so many problems with the Articles of Confederation that they were not deemed fixable by amendment. Publius goes on to point out the weakness of a Congress with only one legislative body, and the final and most important flaw: The people never ratified the Articles of Confederation. It is with this final point that my favorite quote from Federalist 22 appears:

    “The fabric of American empire ought to rest on the solid basis of THE CONSENT OF THE PEOPLE. The streams of national power ought to flow immediately from that pure, original fountain of all legitimate authority.”

    One of the things I have enjoyed most about reading The Federalist are the quotes like the one above, that leap off the page, and speak to us so clearly, 223 years later. They encapsulate principles that our country has drifted from, and remind us of the intent of the founders. When these principles are followed, our country flourishes. When we drift from them, we stagnate.

    If only our founding fathers could come back today, and write a series of Federalist Papers where they analyze our current governmental structure in the same manner they analyze the Articles of Confederation, and methodically itemize all the places our country has deviated from their original founding principles. I have a feeling they would have a hard time confining their essays to 85!

    Good night and God Bless!

    Cathy Gillespie

  13. Why write many paragraphs when a few lines will do, three lines to be exact, from Alexander Hamilton’s Federalist No. 22?

    1. Though the genius of the people of this country..

    2. Its opposition contradicts that fundamental maxim of Republican government, which requires that the sense of the majority shall prevail.

    3. The fabric of American empire out to rest on the solid basis of THE CONSENT OF THE PEOPLE.

    Are these words being honored in our American government today?

    God Bless,

    Janine Turner
    May 27, 2010
    I thank our guest scholar, Dr. Will Morrisey, for joining us today!

  14. Jesse Stewart says:

    Shannon – thanks for your insight re: “big government Hamilton”; it helps to put it in perspective!

    What a wonderful group of commenters, what a wonderful exercise! I’m telling everyone I know about Constituting America.

 

June 4th, 2010 – Federalist No. 28 – The Idea of Restraining the Legislative Authority in Regard to the Common Defense Considered, for the Independent Journal (Hamilton) – Guest Blogger: Professor Will Morrisey, William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College

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Friday, June 4th, 2010

The Federalist #28: Federalism and Rebellion

Publius has turned to the justification of “energy” or power in the federal government—in particular, the power of military self-defense.  In #27 he began consideration of perhaps the most sensitive topic in any federal system, namely, military defense against internal rebellions.  He argued that union finds its primary bulwark in peaceful habits of cooperation.  Frequent appeals to armed enforcement of the union will only weaken the union–either by fostering resentments piqued by fresh injuries or by transforming that union into a tyranny that rules by nothing more than force.  The careful limitation of federal powers—“the enumerated and legitimate objects of [the government’s] jurisdiction”—coupled with the structural device of divided and separated powers within the federal government itself, should work to strengthen the Union over time.

Nonetheless, times will come when only force can preserve the Union.  Publius addresses this likelihood in Federalist #28, making this paper one of his most candid and tough-minded performances.

Recall the fundamental law of contract enunciated in #22: no party to a contract may unilaterally and legally violate the contract.  This maxim of course provided the crux of the Founders’ argument in the Declaration of Independence; King and Parliament had violated the unalienable rights of the colonists by unilaterally altering the terms of their governing charters, leading ultimately to acts of war against the colonists by the King, funded by the Parliament.  The revolution occurred not because the colonists rebelled but because the British government had.

At least as often, some part of the people will rebel.  Indispensable to good government, rule by law will not always suffice.  Rebellion causes an immediate emergency but, more importantly, it “eventually endangers all government”; rebellion in one place can spread to others, plague-like.  Publius remarks that this will hold regardless of whether the country remains united, inasmuch as an America divided into one, a few, or many sovereignties will still suffer the occasional insurrection.

As a revolutionary warrior, Publius maintains the right to revolution against tyranny.  The “original right of self-defense,” part of our natural right to life, always remains “paramount” to “all positive forms”—i. e., all conventional, man-made forms—“of government.”  The human institution of government rightly serves God’s `institution’ of human nature, and when the human contradicts the divine, the divine rightly asserts priority.  This much we know from the Declaration of Independence: In some circumstances the rule of law rightly gives way to illegal but just force.

Publius then advances a much more surprising argument, one based on prudential reasoning not logical deduction from first principles.  Usurpation of citizens’ rights by “the national rulers” will find stiffer resistance than usurpation by the rulers of the member states.  The lesser governments within the states—townships, counties—have relatively weak governments and so would likely lose any contest of arms to a state-capital cabal, especially if the state government controlled the militia.  A usurpatory federal government, however, would face opposition by the states—by experienced public officials with every motive to remain alert to encroachments on their constitutional rights.  The federal government under the new Constitution will check usurpatory moves by the states; the states will retain the power to check federal usurpation.  “The people, by throwing themselves into either scale, will infallibly make it preponderate.”  By ratifying this Constitution the people will do just that, peacefully, but they could also do so in war, if they judge it necessary—as they had, in 1776.

Here the argument of Federalist #10 for the value of an extensive republic reappears.  There, extensiveness of territory diluted factions: groups of citizens acting some way “adverse to the rights of other citizens”—individuals—or to the “permanent and aggregate rights of the community”—the society as a whole.  Here we see the reverse situation; a group of citizens acting in defense of their rights, in accordance with the permanent and aggregate rights of the community, will find refuge in the size of America.  States distant from the usurpers who’ve seized the capital city would have time and space in which to organize themselves military and fight back.

This raises an obvious question: What if an unjust group or faction controlled distant states?  Could the federal government suppress the rebellion?  Publius cannot predict the outcome of such a struggle.  If asked, he could only say that under the weak government of the Articles, no such just suppression could occur at all.

Professor Will Morrisey is the William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College

13 Responses to “June 4th, 2010Federalist No. 28 – The Idea of Restraining the Legislative Authority in Regard to the Common Defense Considered, for the Independent Journal (Hamilton) – Guest Blogger: Professor Will Morrisey, William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College

  1. Susan Craig says:

    This paper seems by implication to say that the 2nd amendment was an understood given if not a directly stated right of the people. I wonder why in this contract in its unamended form only specified the obligations and duties of one side but only implied those of the other side?

  2. Will Morrisey says:

    Susan, if I understand your question correctly, I think that the Founders agreed that the right to self-defense was a natural right, thus `given’ by God. One of the early commentators on the U. S. Constitution, St. George Tucker, writes, “The right of self defence is the first law of nature: in most governments it has been the study of rulers to confine this right within the narrowest limits possible.” Under the Articles, this right simply could not be infringed by the national government. The Framers of the new Constitution were trying to strengthen that government, so they emphasized the need for a government capable of defending itself against rebellion. By 1789, when Congress debated the Second Amendment, the opposite worry prevailed. Worried about the prospect of a standing army, the Congress thought that militias regulated by the civil governments of each state would obviate the need for such a force. They hoped that militias would suffice to repel any invasion. We see this as late as 1829 in William Rawle’s book, “A View of the Constitution of the United States.” He argues, “Although in actual war, the services of regular troops are confessedly more valuable; yet, while peace prevails, and in the commencement of a war before a regular force can raised, the militia form the palladium of the country. They are ready to repel invasion, to suppress insurrection, and preserve the good order and peace of government.” A few years later, Joseph Story adds, to these points the need of the citizens to defend themselves against “domestic usurpations by rulers.” Notice that these commentators expect that any “regular” army would need to be “raised”; there would be no regular standing army.

    Or am I missing the point of your question?

  3. Billie says:

    This explains a lot. I sometimes have wondered about the rationale about the dispute over the standing military force. On the one hand, I believe in a strong national defense. But I’ve thought about the fact that the same force could ultimately be turned against the nation. I don’t really fear it per se, but it is sort of a quandary as to what to do about it. But Professor Morrisey explains it quite well.

  4. Jimmy Green says:

    Hamilton’s understanding of times when the national government will use force to quell insurrections or other internal calamities is understandable given the times he lived in. I think the last time federal force was used was the war between the states from 1861-1865. Not sure if that’s a civil war or the south loosing their own revolutionary war.
    The civil rights movements of the 1960’s used federal troops in Little Rock I think, but that was not out of sedition or succession concerns.

    Hamilton’s views on the necessity of force to preserve the union seems common sense. It’s the couple of centuries of hindsight we have that keeps getting in the way.
    His view of stopping an usurpation in a state as harder then a federal usurpation because of limited territory or geographical areas seems secondary to the usurpers partial or complete control of the militias and belief of the citizens in the usurpers. You know the old “divide and conquer” routine. An usurpation of power by the Federal government likewise seems to be more based on convincing the people that no real usurpation has taken place and then placating them with cheap beer and all the gladiatorial games in the form of ESPN you can watch. At least for the men. Otherwisw entitlements and free medical care for all.

    It think he believes that if the states invade our rights through an usurpation of power then the strength of the Federal Government will set things right and of course the States will set the Federal Government proper if their invading our rights. We decide which one is right or wrong. You have to love how this works in theory.
    The last paragraph mentions peoples apprehension of a strong standing federal army as suffering from a cureless disease. Nice to know political humor transcends the ages.

    You have to appreciate the fine line Hamilton is walking to find the correct balance between having the proper sized standing national army to safeguard the Union and the people of any rogue despotic state. Yet weak enough such that the states and people can throw off the tyranny of that army under a despotic federal government. In actuality we have had no real fear from our standing army and I think Hamilton was right, at least for now. However as people loose confidence in the government things may start to change.

  5. Susan Craig says:

    Partially professor, in most contracts, and I consider the Constitution a contract between government and the people, the rights, privileges and duties of both parties are spelled out up front in the body of the contract. In the Constitution what is expected and permitted on Governments part is very narrowly proscribed but it wasn’t until the first 10 amendments that the other side of this contract was address with any specificity.

  6. Howdy from Texas! I want to thank Mr. Will Morrisey for joining us today and for his wonderful interpretation of Federalist Paper No. 28. I underscored Alexander Hamilton’s quote, “If the representatives of the people betray their constituents, there is then no resource left but in the exertion of that original right of self-defense, which is paramount to all positive forms of government; and which, against the usurpation of the national rulers, may be exerted with an infinitely better prospect of success, than against those of the rulers of an individual state.”

    I find this to be relevant to today in the respect that so many representatives in our United States Congress are betraying their constituents and they are doing so with arrogance, and a condescension, that is disturbing. I refer once again to the often-repeated phrase of Publius, “the genius of the people.” Our current Congress is paying little heed to this phrase and their underestimation of the patriots of America, and that Americans rule through her elected officials, is an action that, I believe will hinder and surprise many currently elected officials in November.

    Publius is reaffirming the collective strength of the people and their right to take action. This is a comforting reinforcement for the passions of the many Americans who are now finding their voice and utilizing it. As predicted by Alexander Hamilton, the unity of the states, the brothers and sisters of America, as opposed to individual states, are reaping resounding results.

    “The usurpers, clothed with the forms of legal authority, can too often crush the opposition in embryo,” is another source of wisdom from Alexander Hamilton. Relevant to today too often lawyers seem to be “usurping” our democratic process and the United States Constitution. Teams of lawyers are constantly poised and ready to redefine the process of protest by squelching it before it has begun with intimidation and coercive measures. Double speak and mind games prevail.
    Americans are tiring of this game and the continual twisting of the true intentions of our Constitution and our rights.

    However, in order to be a true guardian of the gate, we must carry forth our journey to be a people who protest with a basis of formidable knowledge in our principles. Knowledge is power.

    Alexander Hamilton states in this paper, “The obstacles to usurpation, and the facilities of resistance, increase with the increased extent of the state: provided the citizens understand their rights and are disposed to defend them.”

    “Understand their rights and are disposed to defend them.” Hence, if Americans do not know their rights then they will not know when they are being taken away.
    The counter measures of our current culture are imperative. The Constitution needs to be the theme that is prevalent and prevails, as does the readiness and willingness of Americans to stand up, take a stance and go the extra mile. When we are too tired, or too busy, or too distracted by the mundane, this is when it is of the most importance to rally our wills and wits to carry on and carry forth the torch of our forefathers and foremothers who sacrificed so much and stopped at nothing to underscore and manifest what was right, what was worthy and what was the true intent of our God.

    God Bless you for your willingness and courage,

    Janine Turner
    June 4, 2010

  7. yguy says:

    “in most contracts, and I consider the Constitution a contract between government and the people, the rights, privileges and duties of both parties are spelled out up front in the body of the contract. In the Constitution what is expected and permitted on Governments part is very narrowly proscribed but it wasn’t until the first 10 amendments that the other side of this contract was address with any specificity.”

    I don’t think this is the right way to look at the BoR, the preamble to which describes it as a collection of “further declaratory and restrictive clauses”; and certainly any obligations conferred by those amendments fall entirely on government entities. The contractual obligations of the people WRT the government are fulfilled in their entirety when We the People provide the government with the wherewithal to carry out our orders.

  8. Will Morrisey says:

    Susan and yguy raise an interesting question regarding modern `social contract’ theory. Prior to any contract between the people and the government must be a contract among the people themselves. This idea may be seen in the Preamble: “We the People of the United States… do ordain and establish this Constitution….” A given population in effect contracts with itself–individuals and families contract with one another–to establish the several levels of legal institutions by which they govern themselves. In so doing, they empower and limit these various governments, in each case (to quote another document familiar to all of us here) “laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.” If we think of the question in this way, the amendments amount to refinements of–and later on, perhaps, near-contradictions of–the original contract. The difference in emphasis that Susan points to in the first ten amendments strikes me as part of an attrempt by the Jeffersonians (many of them former anti-federalists) to ensure that certain natural rights (freedom of religion and of speech, self-defense, etc.) were given the formal or “positive” status of civil rights.

  9. Susan Craig says:

    Thank you Professor Morrisey, you have given me food for thought.

  10. Greg Zorbach says:

    Many contributors to this blog have marveled at the wisdom of Publius and the Founding Fathers in crafting and implementing our Constitution with all of its carefully devised checks and balances and protections for our individual liberties. It has come up more than once (especially in Janine’s comments) about how amazing it is that so many of the arguments for limited government and those protections of our freedom make it seem as if Publius was looking well into the future to our troubled times.
    In these last few papers, Publius addressed the widespread fear of a standing army at the time of the formation of the Constitution. Hamilton argued that the states would be a effective counter to federal overreach in this and other areas of potential intrusion into our liberty. As Jimmy points out: “You have to love how this works in theory.” The argument has proved to be unnecessary on the issue of a standing army and sadly not true in most other areas of individual liberty. The states have failed miserably in that duty to counter the federal government’s relentless intrusions into individual freedom.
    As Cathy points out: “Our forefathers rightly feared a standing army, due to abuses and usurpations of power the British Army had imposed on them.” On the other hand, the standing army fears in America have been proven to be completely ungrounded.
    During each of my several visits to the Vietnam Memorial I became more and more convinced that the real long-term value of that ‘conflict’ was the validation of civilian control of the military and the irrationality of those ancient fears of a standing army (‘cureless disease’ indeed). In our country’s long history of military engagements I don’t believe that there has ever been a situation that came closer to justifying a military ‘coup’ or something similar. The disastrous meddling in military missions and even sorties by Johnson and McNamara was nothing short of treasonous by the metric of the number of lives needlessly lost, both among our personnel and the Vietnamese, not to mention the stain our country still carries of that defeat . The details are easy enough to verify. I don’t know for sure (I was just a junior Navy pilot) but I would bet the farm that among the more principled senior officers I got to know and admire in my subsequent career there were many who would lay awake at night agonizing over the tragic choices and the possibilities.
    It didn’t happen. Not even under those most trying of circumstances. There is nothing to fear from our standing army or armed services. Never has been.
    Several very good points have been made about historical uses of federal troops: Alabama and the Civil War. (I’m married to a southerner, so I know the ‘war of southern independence’ arguments.) However, the southern states did participate in the rebellion against England. And they did enter into a legal and binding contract of confederation and then did vote for ratification of the Constitution. I always felt that calling the Civil War the ‘war of southern independence’ was just a clever way of avoiding the real moral issue at stake.
    As for any theoretical rebellion, the problem arises of how do you define terms like tyranny and despotism? Maybe its like pornography: “I can’t define it, but I know it when I see it.” Many people seem to be seeing it these days.
    As to the states’ abdication of their role as protectors of its citizens from an overreaching federal government, we may be seeing a turnaround with this legal opposition to Obamacare. To date, more that 20 states’ Attorney Generals have joined in the lawsuit challenging its constitutionality. Several more states (whose constitutions require that such a challenge to federal law originate in the state legislature) have began the process to join in. Those numbers get pretty close to the 38 required to call for a constitutional convention.

  11. yguy says:

    ‘The difference in emphasis that Susan points to in the first ten amendments strikes me as part of an attrempt by the Jeffersonians (many of them former anti-federalists) to ensure that certain natural rights (freedom of religion and of speech, self-defense, etc.) were given the formal or “positive” status of civil rights.’

    I don’t think I could disagree more adamantly. WRT federal powers, 1A and 2A can reasonably be considered extensions of A1S9, which includes limitations on the federal legislative power under the necessary and proper clause. The preexisting rights are alluded to in those amendments to clarify the limits on government, not to place such rights on a par with “positive rights” like suffrage which require governmental validation.

    IOW, while the federal government is generally tasked with protecting the rights you mention, it is not under the color of 1A or 2A that this is accomplished, but by obedience to the Constitution in general in pursuance of the objectives stated in the Preamble.

  12. Susan Craig says:

    I have a tendency to wince when people talk of civil rights as opposed to ‘natural’ or God given rights. A Civil right is not immutable and can be changed at the pleasure of the governing power, whereas a ‘natural’ or God given right is and can not be rescinded or amended by a governing power.

  13. Roger Jett says:

    The following quotes come from a transcription of an old “Break Point” radio broadcast by Chuck Colson entitled “Rights Talk”:
    “Where once we had spoken of government aid programs, we began speaking of entitle-
    ment progams. Suddenly, it wasn’t just an act of compassion to help the poor, the sick, or the elderly. It was a right to which they were entitled. rights came to mean basisc needs, which in turn gave way to wishes” …”every right I claim imposes an obligation on someone else. If patients have a right to medical treatment, then doctors have an obligation to administer it. If criminals have a right to a lawyer, then the state has an obligation to supply one. If people have a right to financial security, then the government has an obligation to dole out welfare benefits. For each new right that is created, a whole network of laws and regulations is written to enforce the corresponding obligation” …”Notice the irony here. The old concept of rights was designed to limit state power- to define areas free from govern-
    ment interference. But the new concept of rights expands state power” …”A larger and larger portion of our lives is vulnerable to government control- exactly what the old kind of rights were designed to prevent”… ” What a sad irony: As Americans demand more and more rights, we enjoy fewer and fewer freedoms” … “The entitlement mentality is threatening the fundamental freedoms that were once the whole point of human rights”.
    We in America have become far too preoccupied with our “rights” and have lost sight of our responsibilities that preserve our “freedoms”

 

July 22, 2010 – Federalist No. 62 – The Senate, For the Independent Journal (Hamilton or Madison) – Guest Blogger: Professor Will Morrisey, William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College

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Thursday, July 22nd, 2010

Publius turns to an explanation and defense of the Senate, and therefore to the importance of a bicameral legislature, replacing the unicameral legislature of the Articles of Confederation government. With the Senate the Framers solved two crucial problems, one of them regarding the American regime, the other regarding the modern state.

The regime problem: Can a republican regime, a regime in which the people rule themselves through their chosen representatives, muster the prudence necessary to avoid devolution into foolish and unjust rule by mere majority will?  If not, then a regime of one or a few rulers, men and women bred to rule, a regime identical to those everywhere else on earth at that time, must finally come back to America.

The state problem: can a centralized modern state—indispensable in a world full of such states—nonetheless provide `political space’ for local and regional self-government?  Or must centralization in the national capital or in the capitals of the constituent states of the federation necessarily dry up the springs of citizenship—active participation by the body of citizens in their own communities?

To keep track of Publius’ argument, it’s useful to outline it.  He announces five topics for consideration with respect to the Senate, but quickly disposes of the first three.  His treatment of topics IV and V—predictably, Publius exhibits a fondness for Roman numerals—takes up more than 90% of his attention.

The qualifications of senators (#62, paragraph 2).

The appointment of senators by the state legislatures (#62, paragraph 3).

The equality of representation of the states in the Senate (#62, paragraphs 4-6).

The number of senators from each state and their term in office (#62, paragraphs 5-16; #63, entire); this topic divided into the “six inconveniences” American suffers in not having such a body.

The powers invested in the Senate (#64, #65, #66).

With this outline in hand, consider Federalist #62.

An American qualifies for election to the Senate upon reaching his thirtieth birthday, having been a citizen here for the last nine years of his life, at least.  Because the senate exercises power over foreign policy—particularly, ratification of treaties and declaration of war—a senator should know more and exhibit greater “stability of character” than a House member.  This means that Publius regards the foreign-policy powers of the Senate as weightier than the House’s power of the purse.  We might think the opposite, but of course we live under a system that has consolidated much more domestic power at the national level than the Founders judged wise.

To prevent such consolidation, the Framers had the senators appointed by the state legislatures.  This assured the state governments a means of defending themselves from within the federal government itself.  In the early decades of the republic, legislatures often sent their appointees to Washington with a list of policy instructions, which the appointee ignored at risk of his re-election.  The Progressive-era abolition of this method of electing senators outflanked the states by giving individual senators a power base independent of the legislatures.  This change in institutional design contributed to the centralization of domestic powers, as senators could begin to collaborate with representatives in the House, effectively transferring the old `spoils system’ to their own hands—all without the messy charges of corruption attendant upon the antics of party bosses.  Eventually, the roads to re-election became: first, bringing home the bacon legally and, second, providing constituent services to voters needing a guide through the bureaucratic maze.  This corrupted the intention of the Framers and led to civic indifference—`consumerism’ in politics instead of self-government.

An aspect of the Framers’ design that remains unchanged is the equal representation of each state in the Senate.  Writing first of all for a New York audience, Publius has every reason to apologize for this feature and move on quickly, as the provision amounts to a major concession by the big states to the small states.  But he also fits the Senate into his larger conception of the regime.  As he has already explained, the new regime is an extended republic (Federalist 10); it controls the effects of faction by multiplying factions over a large territory.  American is also a commercial republic, unlike the military republics of antiquity—most notably, Rome.  With the Senate, the United States becomes a balanced, compound republic, “partaking both of the national and federal character,” avoiding “an improper consolidation of the States into one simple republic.”  Hence the bicameralism of the U. S. Congress, an institutional design feature elaborately defended by John Adams in his Defence of the Constitutions of the United States. Given the Senate’s power to block laws enacted by the House, the states can defend themselves against such consolidation—against excessive statism—while nonetheless forming part of a national state sufficiently centralized to defend itself against the statist and typically monarchist war machines of Europe.

Can a republican regime avoid the fatal defect of previous republics—their lack of fidelity of purpose and of deliberation in debate?  Can republics think?  Can they act faithfully, steadily?  Can they be wise husbands, not silly gigolos?

The small number of senators will promote real discussion instead of “the sudden and violent passions” displayed by large, unicameral legislatures.  Longer terms in office will afford senators a real chance to learn their craft and to stick with long-term policies.  Fickle governments bring upon themselves the contempt of foreigners and the confusion of citizens.  “It will be of little avail to the people that the laws are made by men of their own choice if the laws by so voluminous that they cannot be read, or so incoherent that they cannot be understood,” undergoing “incessant changes” that prevent citizens from knowing how to plan their own lives, from education to investment.  Such laws subvert popular government by leaving effectual rule in the hands of “the sagacious, the enterprising, and the moneyed few” who alone can exploit these protean convolutions that undermine the rule of law itself.  “Anything goes,” indeed.

If anything goes, then respect for the regime will go, too.  Finally, the failure of the rule of law means the failure of rule, simply—in America’s case, self-government through our elected representatives.

Will Morrisey holds the William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College.  His most recent books are Self-Government, The American Theme: Presidents of the Founding and Civil War, The Dilemma of Progressivism: How Roosevelt, Taft, and Wilson Reshaped the American Regime of Self-Government, and Regime Change: What It Is, Why It Matters.

 

July 23, 2010 – Federalist No. 63 – The Senate Continued, For the Independent Journal (Hamilton or Madison) – Guest Blogger: Professor Will Morrisey, William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College

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Friday, July 23rd, 2010

Federalist 63: Responsibility and the Rule of Reason

A small Senate whose members serve long terms answers the need for “order and stability” in the national government, thus fostering respect for the “political system” of America—the institutional architecture of popular self-government.  In Federalist #63 Publius turns to the importance of cultivating respect for this people and their regime among foreign nations.  He then discusses the Senate’s capacity to ensure the truly indispensable thing for any government: the rule of reason.

Under the Articles of Confederation foreign policy was the primary focus of the unicameral Congress, domestic policy having been for the most part the domain of the states.  Despite this, Publius argues, America has lacked “a due sense of national character” in the world.  He means “character” in both senses: moral soundness, but also a well-defined identity.  If the world’s a stage, then each player needs a recognizable role or persona. Without one, the other actors won’t quite know what how to `play off him,’ so to speak.  With a bad one, the other actors will treat him as Iago, or maybe as one of Shakespeare’s clowns.  Such notable American statesmen as George Washington and Benjamin Franklin deliberately cultivated their public faces.  In choosing good roles and playing them with energy and intelligence, they strengthened their own inner characters and established their reputations among their fellow citizens and throughout the world.

A Senator’s term in office and his status as one of only two representatives selected by his state legislature—itself likely to know the character of their chosen representative better than the voters at large could do—will incline him to identify his own ambitions with the welfare of his state, knowing that “the praise and blame of public measures” will attach to his own public character.  He will be seen; he will be heard; he cannot evade the scrutiny of his colleagues in the Senate or in his state capital.

The matter of character fits well with Publius’ final consideration: responsibility.

Although Publius did not invent this word, as some scholars have imagined (it appears in English legal writings as early as the mid-seventeenth century), he did put it squarely on the American political map.  If representation is the central feature of a republican regime, then responsibility—meaning both responsiveness to those one represents and accountability for one’s actions—is the soul of representative government.  By reasonable responsibility Publius means that no one expects his representative to accomplish things beyond his powers; fittingly, the powers of the Senate are the topic of the subsequent three papers.

Here is where the bicameral institutional structure of Congress comes into play. The bicameral Congress will derive its energy from the often-impassioned House, its prudence from the Senate, which balances “the cool and deliberate sense of the community” against that community’s urgent desires.  “What bitter anguish would not the people of Athens have often escaped if their government had contained so provident a safeguard against the tyranny of their own passions?”  Even with the greater extensiveness of the American republic, which will serve as a brake upon popular excesses even in the House, the Senate will serve as an “auxiliary precaution.”  It is one thing to slow passions down; it is another to map out the right direction for the country.

Above all, it is the republican institution of representation, as opposed to the democratic device of all-citizen assemblies, which will make American lawmaking more stable and reasonable than that of any ancient polis.  In both foreign and domestic policy, then, the Senate will provide some of the long-term, prudential thinking previously seen mostly in aristocracies.

To those who fear that the Senate will become an outright aristocracy, dominating the other branches, Publius replies that this would require the Senate to corrupt the state legislatures, the House, and the people—an unlikely `trifecta.’  Sure enough, the Progressives succeeded in deranging the Constitution in just that way, not only by changing the election rules for Senators but by providing the House with bigger revenues via the income tax.  Even so, it remains quite far removed from a genuine hereditary aristocracy.

Will Morrisey holds the William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College.  His most recent books are Self-Government, The American Theme: Presidents of the Founding and Civil War, The Dilemma of Progressivism: How Roosevelt, Taft, and Wilson Reshaped the American Regime of Self-Government, and Regime Change: What It Is, Why It Matters.

 

July 26, 2010 – Federalist No. 64 – The Powers of the Senate, From the New York Packet (John Jay) – Guest Blogger: Professor Will Morrisey, William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College

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Monday, July 26th, 2010

Publius now begins his fifth and final topic respecting the Senate: its powers.  In Federalist 64 he considers the power to ratify treaties.

Publius argues that the state legislatures will likely choose outstanding men to represent them in Congress.  Senators will be known to their electors, who will “not be liable to be deceived by those brilliant appearances of genius and patriotism which, like transient meteors, sometimes mislead as well as dazzle” (think “Aaron Burr”).  State legislators will want representation by men they trust who have the intelligence and strength of character to defend and advance the interests of their state in the national government.  One might add that the removal of two such men from the local scene would not bereave the less gifted rivals they leave behind.

Did it work?  The record of the nineteenth century suggests that it did: Adams, Clay, Calhoun, Webster, Benton, Houston, Chase, Seward, Lodge: these men enjoyed more prominence than most of the presidents of their time.  Among the best (if long-forgotten) accounts of the old Senate remains Oliver Dyer’s Great Senators of the United States Forty Years Ago, published in 1889.  One of the first stenographers in America, Dyer worked in the Senate in 1848 and 1849, and his highly readable account of the lions of those days stands as a fine introduction to the nature of political life itself as well as a testament to the kinds of men who once found that life worth choosing.

Such prominence can serve the country in foreign policy. Given the need for secrecy and careful timing in any confidential matter, presidents and their ambassadors negotiate treaties.  The experiment in making Congress responsible for such negotiations had failed to satisfy the Framers.  The Senators will not negotiate treaties; they will ratify them, inasmuch as the results of secret negotiations obviously require public review.  The need for a two-thirds majority for ratification ensures that the treaty will have broad support among the states.

What is more, treaties are laws; still more than that, they are supreme laws of the land.  This had not been so under the Articles, under which the states reserved the power to implement treaties, with predictable results.

The supremacy of treaty law made (and still makes) Americans nervous.  Publius observes that if treaties were “repealable at pleasure,” no foreign country would “make any bargain with us.”  Treaties are contracts between nations not under one another’s sovereignty.  They are harder to enforce than ordinary laws.  Like contracts, they require the consent of both parties to enact but would be worthless if one party were legally entitled to unilaterally rescind them—unless, of course, the contract stipulates the right to do so under specified circumstances.  This does not mean that the United States cannot withdraw from a treaty—break the contract.  But it should do so in the knowledge that its partner in the contract may attempt to enforce the terms of the contract, up to and including the use of military force.  The conditions for the just termination of treaties and their just enforcement were familiar to the founders from the major works of international law then extant—most particularly The Law of Nations by the French Swiss writer Emer de Vattel, from whom Jefferson had drawn several of the phrases in the Declaration of Independence.

Domestically, the supremacy of treaty law meant that both states and individual citizens needed to abide by them. Treaties now overrode state laws.

But do they override existing constitutional law?  This worried the senators who voted against the League of Nations, fearing that membership in the League would impinge upon their power to declare war.  Although one never knows what a modern Supreme Court decision might say, from more or less the beginning the consensus thus far has been “no.”  Because treaties are made under the authority of the United States they cannot (as Alexander Hamilton observed in 1796) “rightfully transcend the constituting act”—change any constitutional law.  If treaty law could amend the Constitution, this would lead to the absurdity of senators amending the Constitution without recourse to ratifying conventions of the states.  The Constitution, federal statutes, and treaties are all supreme laws of the land, but the Constitution is (as it were) more supreme than statutes and treaties.

Publius touches on a remarkable feature of the treaty ratification power: it is held by the body that represents the states.  The most `locally’-centered branch of the national government will hold the most `international’ power.  Although the states may see their laws overridden by treaties, it will be the states’ representatives who consent to doing so.

Publius may imply that the habit of causing the ambassadors from the states to think in terms of treaties that will affect the whole country might serve to build national sentiments.  This it might have done, but the more powerful domestic issue of slavery overcame any such sentiments in the 1850s.  Be this as it may, lodging the treaty ratification power in the Senate solves the problem of the Articles.  It removes the possibility of individual states obstructing a treaty by refusing to implement it, but it allows the states to retain a proximate influence upon treaties by making their representatives responsible for voting treaties up or down.

Will Morrisey holds the William and Patricia LaMothe Chair in the United States Constitution at Hillsdale College.  His most recent books are Self-Government, The American Theme: Presidents of the Founding and Civil War, The Dilemma of Progressivism: How Roosevelt, Taft, and Wilson Reshaped the American Regime of Self-Government, and Regime Change: What It Is, Why It Matters.