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Amendment XVII

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The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures.

When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.

This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution.

Passed by Congress May 13, 1912. Ratified April 8, 1913.

Note: Article I, section 3, of the Constitution was modified by the 17th amendment.

May 15, 2012 – Essay #62 – Amendment XVII: Reform or Revision? – Guest Essayist: Ralph A. Rossum, Ph.D., the Salvatori Professor of American Constitutionalism at Claremont McKenna College

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Amendment XVII:

1: The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures.

2: When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.

3: This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution.

Seventeenth Amendment

The Seventeenth Amendment replaced the Constitution’s original indirect election of the U.S. Senate by state legislatures with direct election by the people; it was approved by the Congress on May 12, 1912, was ratified by the requisite three-fourths of the state legislatures in less than 11 months, and was declared to be a part of the Constitution on May 31, 1913.  Not only was it ratified quickly, it was ratified by overwhelming numbers: In 52 of the 72 state legislative chambers that voted to ratify the Seventeenth Amendment, the vote was unanimous, and in all 36 of the ratifying states, the total number of votes cast in opposition to ratification was only 191, with 152 of these votes coming from the lower chambers of Vermont and Connecticut.

While state ratification of the Seventeenth Amendment came quickly and easily, approval by the Congress did not. The first resolution calling for direct election of the Senate was introduced in the House of Representatives on February 14, 1826. From that date until the adoption of the Seventeenth Amendment 86 years later, 187 subsequent resolutions of a similar nature were also introduced before Congress, 167 of them after 1880. The House approved six of these proposals before the Senate reluctantly gave its consent.

By altering how the Senate was elected, however, they also altered the principal mechanism employed by the framers to protect federalism.  The framers understood that the mode of electing (and especially re-electing) senators by state legislatures made it in the self-interest of senators to preserve the original federal design and to protect the interests of states as states. This understanding was perfectly captured by Alexander Hamilton during the New York Ratifying Convention on June 24, 1788, when he explicitly connected the mode of electing the Senate with the protection of the interests of the states as states. “When you take a view of all the circumstances which have been recited, you will certainly see that the senators will constantly look up to the state governments with an eye of dependence and affection. If they are ambitious to continue in office, they will make every prudent arrangement for this purpose, and, whatever may be their private sentiments or politics, they will be convinced that the surest means of obtaining reelection will be a uniform attachment to the interests of their several states.”

Hamilton’s arguments to the contrary, notwithstanding, the states quickly and overwhelming ratified an amendment that removed the principal structural means for protecting the original federal design and the interests of the states as states. Four factors explain why they did so.

The first was legislative deadlock over the election of senators brought about when one political party controlled the state assembly or house and another controlled the state senate. Prior to the ratification of the Seventeenth Amendment, there 71 such legislative deadlocks, resulting in 17 senate seats going unfilled for an entire legislative session or more. These protracted deadlocks often led to the election of “the darkest of the dark horse” candidates, occasionally deprived the affected states of representation in the Senate, always consumed a great deal of state legislative time that was therefore not spent on other important state matters, and powerfully served to rally the proponents of direct election.

A second factor was the political scandal that resulted when deadlocks were occasionally loosened by the lubricant of bribe money.  While corruption was proved to be present in only seven cases of the 1,180 senators elected from 1789 to 1909, these instances were much publicized and proved crucial in undermining support for the original mode of electing senators.

A third factor, closely related to the second, was the growing strength of the Populist movement and its deep-seated suspicion of wealth and influence. It presented the Senate as “an unrepresentative, unresponsive ‘millionaires club,’ high on partisanship but low in integrity.”

And, when Populism waned, Progressivism waxed in its place, providing a fourth (and ultimately decisive) factor: The Progressives believed that the cure for all the ills of democracy was more democracy. Their goal was, as Woodrow Wilson proclaimed in his 1912 campaign book The New Freedom, for government to be not only “of, by, and for” the people, but “through the people.”

Ralph A. Rossum, Ph.D. is the Salvatori Professor of American Constitutionalism at Claremont McKenna College. He is the author of a number of books  including Federalism, the Supreme Court, and the Seventeenth Amendment, Antonin Scalia’s Jurisprudence: Text and Tradition, and American Constitutional Law (8th edition).

May 14, 2012 – Essay #61 – Amendment XVII: Direct Election of Senators – Guest Essayist: Dr. John S. Baker, Jr., Distinguished Scholar in Residence, Catholic University School of Law; Professor Emeritus, Louisiana State University Law Center

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Amendment XVII:

1: The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures.

2: When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.

3: This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution.

 

Many Americans wonder why it is that the federal government continues to expand its power at the expense of the states and local governments.  As the Supreme Court observed in Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985),“the adoption of the Seventeenth Amendment in 1913 … alter[ed] the influence of the States in the federal political process.” Ironically, it was state legislatures that insisted on adopting the Seventeenth Amendment even though it virtually guaranteed their loss of power. The Seventeenth Amendment inflicted a near death-blow to federalism.

The first sentence of the Seventeenth amendment substitutes “elected by the people thereof” for the words “chosen by the Legislature thereof” in the language of the first paragraph of Article 1, Sect. 3. The amendment also provides the procedure for filling vacancies by election, but permitting states by legislation to allow the state’s governor to make temporary appointments.

Prior to the 17th Amendment, the Constitution provided for US senators to be elected by the legislature of each state in order to reflect that the Senate represented the states, as contrasted with the House which represented the people of each state.  Originally, U.S. senators did represent their own states because they owed their elections to their state legislature, rather than directly to the voters of the state. The Senate, thus, carried forward the (con)federal element from the Articles of Confederation, under which only the states were represented in the national legislative body.  As noted in The Federalist, the fact that state legislatures elected U.S. senators made the states part of the federal government.  As intended, this arrangement provided protection for states against attempts by the federal government to increase and consolidate its own power. In other words, the original method of electing senators was the primary institutional protection of federalism.

In the decade prior to the Civil War, over the issue of slavery, and increasingly after the Civil War, some state legislatures failed to elect senators. That development, plus charges that senators were being elected and corrupted by corporate interests prompted some states to adopt a system of de facto election of senators, the results of which were then ratified by the state legislatures.  Proposals for a constitutional amendment providing for direct popular election of senators were long blocked in the Senate because most senators were elected by state legislatures.  Over time, the number of senators elected de facto by popular election increased.  Also, states were adopting petitions for a constitutional convention to consider an amendment to provide for popular election of senators.  As the number of states came closer to the number requiring the calling of a Constitutional Convention, the Senate allowed what became the Seventeenth Amendment to be submitted to the states for ratification.

A major factor promoting direct popular election of senators was the Progressive Movement.  This movement generally criticized the Constitution’s system of separation of powers because it made it difficult to enact federal legislation. The Framers had done so in order to protect liberty and to create stability in government.  The Progressives, on the other hand, wanted government to be more democratic and, therefore, to allow easier passage of national legislation reflecting the immediate popular will.

By shifting the selection of senators to the general electorate, the 17th amendment not only accomplished those purposes; but it also meant that senators no longer needed to be as concerned about the issues favored by state legislators. Predictably, over time, senators voted for popular measures which involved “unfunded mandates” imposing the costs on the states.  Senators were able to claim political credit for the legislation, while the states were left to pay for new national policies not adopted by the states.  Such unfunded mandates would have been unthinkable prior to adoption of the 17th amendment.

Ironically, more than the required number of state legislatures ratified the Seventeenth Amendment, with little or no realization that they were diminishing the power of their own states and undermining federalism generally.  Many legislators apparently thought they had more important matters to attend to than devoting time to the struggles that often revolved around electing a senator. Such an attitude might have been understandable at a time when the federal government had much less power vis-a-vis the states.  What those legislators did not appreciate was that the balance of power favorable to the states was due to the fact that state legislatures controlled the U.S. Senate.  Over time, since adoption of the Seventeenth Amendment, the balance of power has inevitably consistently shifted in favor of the federal government.

Dr. John S. Baker, Jr. is a Distinguished Scholar in Residence at Catholic University School of Law and Professor Emeritus of Law at Louisiana State University Law Center.

 

April 12, 2012 – Essay #39 – Amendment X: Our Constitution a Grant of Limited Powers to the National Government – Guest Essayist: Dr. John S. Baker, Jr., Distinguished Scholar in Residence, Catholic University School of Law; Professor Emeritus, Louisiana State University Law Center

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http://vimeo.com/40200787
Amendment X:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

THE TENTH AMENDMENT

Statements about the Tenth amendment tend towards opposing extremes. Some cite the Amendment in claiming more powers than the Constitution actually leaves in the states. On the other side, some claim that the Amendment is merely a “truism,” implying it does virtually nothing. The actual meaning of the Amendment lies in between these two one-sided views.

The Tenth Amendment reads as follows:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

The most important word is the one that does not appear in the text, i.e., “expressly.” It is common for those who place great weight on the Tenth Amendment to state incorrectly that the Amendment says “powers not expressly delegated to the United States…” The Amendment, however, pointedly omits the word expressly.

By contrast, somewhat similar language in the Articles of Confederation did include the word expressly.
Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled. (emphasis added)

What difference in meaning does the word “expressly” make? The difference is that which distinguishes a confederation from a government. The Articles of Confederation provides that “The said States hereby severally enter into a firm league of friendship with each other…” (emphasis added). The Articles recognize that the States retained their full sovereignty and entered into a special kind of alliance or league. The Articles constitute a treaty involving multiple sovereignties and having several purposes. As a treaty, however, it is still a contract and each State delegates only those powers expressly written into the contract. Although “[t]he Articles thereof shall be inviolably observed by the States,” the document creates no government having the power to enforce its provisions. It provides only for states to send representatives to meet as the “United States in Congress” and to manage those powers expressly given.

The Constitution that emerged from the Convention, as all understood, was not a confederation or simply a league of friendship. Opponents of the Constitution, known as the Antifederalists, concluded that therefore the Constitution would create a consolidated or centralized government. The Federalist (written by Madison, Hamilton and Jay under the pseudonym of “Publius”) countered that the Constitution created a federal government of only limited powers and left most powers of government in the states.

Not persuaded, the Antifederalists contended that the Constitution’s limits on the federal government could and would be swept aside by its “necessary and proper clause.” Their arguments in opposition to the Constitution emphasized the document’s lack of a bill of rights. They urged that a statement of rights was necessary to protect liberty by limiting the power of the federal government and specifically to undo the effect of the “necessary and proper” clause.

The Constitution drafted at the Constitutional Convention contained no bill of rights. This was not an oversight. The Convention voted down George Mason’s proposal that a bill of rights be added. Moreover, during the Ratification period, The Federalist (#84) argued “that bills of rights, in the sense and to the extent they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous.” A bill of rights was unnecessary because “a minute detail of particular rights is certainly far less applicable to a constitution like that under consideration, which is merely intended to regulate the general political interests of the nation.” It was dangerous because it “would contain various exceptions to powers not granted; and on this very account, would afford a colourable pretext to claim more than was granted.”

The Federalists and Antifederalists held opposing ideas about the best means to protect liberty. Whereas the Antifederalists gave priority to bills of rights, the Federalists distrusted the efficacy of such “parchment barriers.” Rather the Federalists drafted the Constitution on the premise that protecting liberty requires a structure of separation of powers within the federal government and a division of powers between the federal and state governments. For that reason, The Federalist said “The truth is … that the constitution is itself, in every rational sense, and to every useful purpose, A BILL OF RIGHTS.”

Predictions of both the Antifederalists and Federalists have proved in part to be accurate. As the Antifederalists feared, the Necessary and Proper Clause has been used to expand the powers of the federal government greatly at the expense of the states, a trend aided (as discussed in a later essay) by the Seventeenth Amendment. The Federalists were correct that the Bill of Rights, aided by the Fourteenth Amendment’s judicially-developed doctrine of Incorporation, has been used to expand the powers of the federal government at the expense of the states.

The foundational explanation of the Necessary and Proper Clause came in Chief Justice Marshall’s opinion in McCulloch v. Maryland (1819). The opinion addressed the Necessary and Proper Clause as an additional, not the primary, reason for upholding the constitutionality of the Bank of the United States. Jeffersonian Republicans, many of whom had been Antifederalists, opposed this decision as an unconstitutional expansion of Congress’s powers. Chief Justice Marshall’s opinion, however, was perfectly consistent with, and generally tracked language in several essays from, The Federalist.

Over the years, especially since the New Deal, the centralizers of national power have often relied on a distorted interpretation of the Necessary and Proper clause which disregards the fundamental principle that the federal government is one of limited powers. Accordingly, they dismiss the Tenth Amendment as simply a “truism.” The defenders of state power, on the other hand, emphasize the Tenth Amendment, almost as if nothing else in the Constitution matters. They generally fail to understand The Federalist explanation – confirmed by Chief Justice Marshall’s opinion in McCulloch – that Congress has the fullness of those powers actually given to Congress and that the Constitution includes the Necessary and Proper Clause in order to leave no doubt about the fullness of the powers actually given.

When during the First Congress James Madison spoke for the Bill of Rights he had introduced, among other points he argued that they were of “such a nature as will not injure the Constitution.” Specifically, what became the Tenth Amendment did not injure the Constitution because it did not convert it to a confederation. That is to say, the Tenth Amendment pointedly did not use the word expressly.

As to any power actually given by the Constitution, Congress has the fullness of that power. Congress’s exercise of power is nevertheless limited– first by the fact that it is not given every power of government. Secondly, Congress encounters procedural limits on the implementation of its enumerated powers due to bicameralism and separation of powers. The division of powers between the federal and state governments which effectively limited Congress’s exercise of enumerated powers has been undermined by the Seventeenth Amendment’s provision for direct election of senators.

The U.S. government has over the years consolidated power to a degree feared even by the Federalists, and much more so by the Antifederalists. To point solely to the Tenth Amendment, however, as the primary limit on the expansion of federal power is to misunderstand the Constitution. The Tenth Amendment is a ‘truism” in the sense that it merely confirms that the Constitution creates a federal government with a limited number of powers, those related to national defense, foreign affairs, foreign trade, and trade among the states. See Federalist # 23 and #45. Like the Necessary and Proper Clause, a proper interpretation of the Tenth Amendment must be connected to the Constitution’s structure of divided and separated power.

Dr. John S. Baker, Jr. is the Distinguished Scholar in Residence at Catholic University School of Law and Professor Emeritus of Law at Louisiana State University Law Center.

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June 10, 2011 – Amendment XVII of the United States Constitution – Guest Essayist: Dr. John S. Baker, Jr., Distinguished Scholar in Residence, Catholic University School of Law; Professor Emeritus, Louisiana State University Law Center

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Amendment XVII

The Seventeenth Amendment, adopted April 8, 1913, provides as follows:

1: The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures.

2: When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.

3: This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution.

The first sentence substitutes “elected by the people thereof” for the words “chosen by the Legislature thereof” in the language of the first paragraph of Article 1, Sect. 3. The amendment also provides the procedure for filling vacancies by election, but permitting states by legislation to allow the state’s governor to make temporary appointments.

Prior to the 17th Amendment, the Constitution provided for US senators to be elected by the legislature of each state in order to reflect that the Senate represented the states, as contrasted with the House which represented the people of each state.  Originally, U.S. senators did represent their own states because they owed their elections to their state legislature, rather than directly to the voters of the state. The Senate, thus, carried forward the (con)federal element from the Articles of Confederation, under which only the states were represented in the national legislative body.  As noted in The Federalist, the fact that state legislatures elected U.S. senators made the states part of the federal government.  As intended, this arrangement provided protection for states against attempts by the federal government to increase and consolidate its own power. In other words, the original method of electing senators was the primary institutional protection of federalism.

In the decade prior to the Civil War, over the issue of slavery, and increasingly after the Civil War, some state legislatures failed to elect senators. That development, plus charges that senators were being elected and corrupted by corporate interests prompted some states to adopt a system of de facto election of senators, the results of which were then ratified by the state legislature.  Proposals for a constitutional amendment providing for direct popular election of senators were long blocked in the Senate because most senators were elected by state legislatures.  Over time, the number of senators elected de facto by popular election increased.  Also, states were adopting petitions for a constitutional convention to consider an amendment to provide for popular election of senators.  As the number of states came closer to the number requiring the calling of a Constitutional Convention, the Senate allowed what became the Seventeenth Amendment to be submitted to the states for ratification.

A major factor promoting direct popular election of senators was the Progressive Movement.  This movement generally criticized the Constitution’s system of separation of powers because it made it difficult to enact federal legislation. The Framers had done so in order to protect liberty and to create stability in government.  The Progressives, on the other hand, wanted government to be more democratic and, therefore, to allow easier passage of national legislation reflecting the immediate popular will.

By shifting the selection of senators to the general electorate, the 17th amendment not only accomplished those purposes; but it also meant that senators no longer needed to be as concerned about the issues favored by state legislators. Predictably, over time, senators voted for popular measures which involved “unfunded mandates” imposing the costs on the states.  Senators were able to claim political credit for the legislation, while the states were left to pay for new national policies not adopted by the states.  Such unfunded mandates would have been unthinkable prior to adoption of the 17th amendment.

Ironically, more than the required number of state legislatures ratified the 17th Amendment, with little or no realization that the Seventeenth amendment would diminish state power and undermine federalism generally.  Many legislators apparently thought they had more important matters to attend to than to devote time to the struggles that often revolved around electing a senator. Such an attitude might have been understandable at a time when the federal government had much less power vis-a-vis the states.  What those legislators did not appreciate was that the balance of power favorable to the states was due to the fact that state legislatures controlled the U.S. Senate.  Over time, since adoption of the Seventeenth Amendment, the balance of power has consistently shifted in favor of the federal government.

Dr. John S. Baker, Jr. is the Distinguished Scholar in Residence at Catholic University School of Law and Professor Emeritus of Law at Louisiana State University Law Center.

May 16, 2011 – Article V of the United States Constitution – Guest Essayist: Joerg Knipprath, Professor of Law at Southwestern Law School

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Article V

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

Article V, which provides the methods for formal amendment is, arguably, the most important provision in the Constitution outside the creation of the structure of government.  That article embodies a compromise over a very contentious issue that was grounded in conflicting doctrines of republicanism and higher law theory swirling during the Revolutionary War period.

On the one hand, 17th and 18th century republican theory called for decisions by majority vote, albeit under a restricted franchise.  This was a proposition that manifested itself in the post-Glorious Revolution English constitutional system in which a majority of the Parliament (effectively, the House of Commons) not only enacted “ordinary” legislation but controlled constitutional change, as well. Under the English system, there was no categorical distinction between ordinary laws and those of a foundational, i.e., constitutional, nature.  For example, the Charter of Rights did not become politically binding until passed in 1689 as a parliamentary bill. This was a manifestation of a “constitution” that, being unwritten, was considered solely a fundamental political ordering, rather than also a fundamental law.  Hence, there was no formal constitutional amendment process outside an appeal to Parliament to pass or repeal laws that were “constitutional” in the operative sense.

This English Whig republicanism had many adherents in the United States among leaders of the Revolution. For them, the problem was not the theory but the practitioners.  Not surprising, then, some early state constitutions, too, placed the amending power with the legislatures.  Even if a state constitution contained a bill of rights that was immune from legislative tinkering, any violation of that command was to be resolved through political action.  Moreover, anything outside that bill of rights was left to legislative change.

Yet, by the 1780s, an entirely different conception became dominant. To be sure, reaction against the entrenched constitutional order arose from the experience of Americans with the militant republicanism of the day embodied in legislative majorities that, in too many states, contributed to political and economic turmoil exacerbated by class warfare rumblings and the trampling of rights in property. Experience may have sufficed to cause disenchantment with the existing constitutional structure, but it was not enough to explain the emergence of the alternative.

Enter the “higher law” conception of constitutions. Americans had lived in colonies governed, directly or indirectly, by royal charters. By their thinking, Americans were in a contractual, and therefore “legal,” relationship with their proprietors and the Crown through these charters and patents, and Parliament simply had no control over them. Local laws were valid, as long as they conformed to the charter.

This emergent “higher law” constitutionalism also had religious and political roots. Focusing on the latter, it was a component of social contract theory. The republican version of the legitimacy of governmental action under the social contract focused on the political mechanism to be used after the commonwealth was formed, namely, legislative majorities. The higher law doctrine focused on the relationship of the majority’s act to the qualitatively superior action of creating the commonwealth. In a strict version of that view, unanimous consent was required to form the social contract.  In the American experience, the Mayflower Compact provided one such example. At the same time, looking at disparate social contract theorists, such as Thomas Hobbes and John Locke, one finds much ambiguity and question-begging assumptions about how exactly the social contract’s obligations arise.

The colonial experience with royal charters fairly early suggested that such documents were first, law; second, fundamental; and third, not amendable as ordinary legislation. They were law because written and, being in the nature of contracts, binding on all signatories (and, perhaps, their successors). They were fundamental because they dealt with matters that went to the very organization of the political commonwealth. They were not amendable as ordinary laws because each free person had to consent to the changing of the deal that created the basis of political obligation and made the acts of government different from those of a brigand. If unanimity was impractical, at least a supermajority ought to be required. Thus, the charter for Pennsylvania as early as 1701 called for amendments to be adopted only upon 6/7 vote of the assembly.

A pure form of this approach was found in the Articles of Confederation. As the Articles can be considered the formal basis for the formation of a political commonwealth, the United States of America, and in light of the fact that the document repeatedly refers to that commonwealth as a “perpetual union,” it is a social contract.  As such, it could only be amended by the consent of all signatories to the compact, though, of course, a state might provide that a majority within its legislature sufficed to bind the state.

That unanimity requirement was quickly perceived as a parlyzing defect of the Articles.  When the Framers of the Constitution considered the matter, they believed that they had to find a way that avoided the potential for constitutional turbulence from radical republican majoritarianism as well as for constitutional sclerosis from rigid social contract-based unanimity. They urged that the supermajority requirements of Article V appropriately split the difference. This is not a matter readily settled.  The procedure has only been invoked successfully 18 times (the original ten amendments having been adopted at one time). What is clear, though, is that the relative difficulty of the procedure has allowed the unelected judiciary to take on the role of de facto constitutional amendment to a much greater extent than the Framers likely anticipated and than what is consistent with classic republican ideals.

Judging by early state experimentation, constitutional change was to occur, if anything, more directly through the people than Article V allows. Constitutions were typically the job of special conventions whose work would be ratified by popular vote.  Actions by such special bodies and by the people themselves were more immediate realizations of popular sovereignty than actions by legislatures, even by legislative supermajorities. George Washington characterized them as “explicit and authentic acts of the whole people.” It was impractical, however, at the national level, to have all people gather at town halls. Nor was it deemed practical — or wise — to have a national vote on amendments.

In Article V, the mechanism of popular participation is the convention. That mechanism is available for the proposal of amendments emanating from the states and the adoption of the amendments by the states. It is interesting, and perhaps disappointing from the republican perspective, that the first has never been used and the second has been used only to repeal another constitutional amendment, regarding alcohol prohibition. Instead, Congress typically proposes, and state legislatures dispose.

There is, however, an institutional reason why no constitutional convention has been called to draft amendments. Plainly put, Congress and the political elites fear that a convention could ignore any specific charge from Congress and draft a whole new constitution. That is, after all, what happened in Philadelphia in 1787. If a matter came close to receiving the requisite number of petitions from states, it is likely that the Congress would itself adopt an amendment and submit it to the states. That is precisely how Congress got around to proposing the 17th Amendment for the direct election of Senators after enough states submitted petitions to put them one short of the required 2/3. Currently, the proposed balanced budget amendment is just two states short.

More troubling to some is whether the people could go outside Article V to form a convention.  That was an issue raised, but not resolved, before the Supreme Court in 1849 in a case involving an insurrection in Rhode Island under the guise of adoption of a “popular constitution.”  Traditionalists point to Article V as providing the means the people have chosen to limit themselves, lest constitutional instability be the order of the day.  In response, republicans assert that American bedrock principles of popular sovereignty (found, among other places in the Federalist Papers) do not admit of so limiting the people’s power. The people ultimately control their constitution, not vice versa. James Wilson, no wide-eyed radical, speaking in the Pennsylvania ratifying convention, defended the Framers’ alleged departure from their charge by the Confederation Congress by declaring what was a self-evident truth to most Americans at the time, that “the people may change the constitutions whenever and however they please.”

An expert on constitutional law, Prof. Joerg W. Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. He has also spoken on business law and contemporary constitutional issues before professional and community forums. Read more from Professor Knipprath at: http://www.tokenconservative.com/.

March 17, 2011 – Article I, Section 07, Clause 3 of the United States Constitution – Guest Essayist: Kyle Scott, Political Science Department and Honors College Professor at the University of Houston

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Article I, Section 7, Clause 3

3:  Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill.

Within a single clause we see on display one of the most important components of the U.S. Constitution: a system of checks and balances. Within Article 1, Section 7, Clause 3 we see that not only must a bill pass through both houses of the bicameral legislature, but it must also be signed by the President, who resides in the executive branch, in order for it to become law.

The bicameral legislature is the result of what would become known as the Connecticut Compromise. At the Constitutional Convention of 1787 the large states proposed a bicameral legislature where the states would be represented in the national assembly in proportion to their state’s population. Therefore, a state like Virginia would have more representatives than a small state like New Jersey. The small states countered with what would become known as the New Jersey Plan. In this plan there was to be a unicameral legislature in which the states would be represented equally. Roger Sherman from Connecticut proposed a bicameral legislature in which the membership in the lower house would be determined by state population and in the upper house each state would be represented equally. There were some modifications before it was put into the Constitution, but for the most part the Connecticut Compromise created our current legislative structure in which each state is represented in the House of Representatives in proportion to the state’s population and each state is represented by two senators in the upper house, or Senate. In order to balance the interests of the small states and the large states, a bill must pass through both houses in identical form before it can be sent to the President for his signature or veto.

By instituting a system of checks and balances the Constitution introduces delay into the process in order stymie reactionary policies by allowing various interests to voice their support or opposition. This assuaged the concerns of those who feared the ability of the many to lead the country haphazardly down a path of ever changing public sentiment, and those who feared the capricious decision making of a monarchy or aristocracy that would strip the people of their liberty. Therefore, the Connecticut Compromise was not just a compromise between big states and small states, but between those who favored more democracy and those who favored less. The House was intended to be representative of the people’s interests—as members of this chamber were elected directly by the people—and the Senate was intended to be representative of the entire state as determined by the state’s political elite—as Senators were to be chosen by the state legislature, for it was not until the ratification of the 17th Amendment in 1913 that Senators were directly elected by the people.

Once a bill satisfied the concerns of the people and the elite, and those from large states and small states, it was sent to the President who was supposed to represent the view of the whole nation. Thus, it was yet another check introduced into the system. If the bill ran against the nation’s best interests the President was supposed to veto it. But, the President could not single-handedly stop legislation as Congress is given the ability to override a veto by a 2/3’s vote in each chamber. In granting veto override authority to Congress the Framer’s of the Constitution institutionalized distrust of a single executive, surely a by-product of their experience under King George III.

When a system of checks and balances is effectively implemented it is able to prevent the interests of some overwhelming the interests of others in a way that would threaten safety and liberty. When a group has the ability to protect its interests against the competing interests of another group, a compromise must be reached between the competing groups in order for the policy process to move forward. The compromise produces moderate policy, and change that is slow and incremental. The animating characteristic of this program is self-protection, which itself is spawned from the emphasis the Framer’s placed on liberty. We cannot entrust others to protect our liberty, but we must do it ourselves by being engaged, informed, and responsible in our political and private lives. It is our liberty that gives us the ability to do these things, and it is our liberty we protect when we do. Because liberty is an instrumental and intrinsic value, there is a symbiotic relationship between our political involvement and our liberty that the Constitution seeks to institutionalize.

Kyle Scott is a lecturer in the Department of Political Science and Honors College at the University of Houston. His third book, Federalism, is due out March 17th. Dr. Scott has written on the Federalist Papers for Constituting America and proudly serves as a member of its Constitutional Advisory Board. He can be reached at kascott@uh.edu. Or, you can follow his blog at www.redroom.com/member/kylescott

March 7, 2011 – Article I, Section 04, Clause 1-2 of the United States Constitution – Guest Essayist: Joerg Knipprath, Professor of Law at Southwestern Law School

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 Article I, Section 4, Clauses 1-2

1:  The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.

2:  The Congress shall assemble at least once in every Year, and such Meeting shall be on the first Monday in December,5  unless they shall by Law appoint a different Day.

Article I, Section 4, cl. 1, delegates to the state legislatures the authority to determine the time, place and manner of electing Senators and Representatives. However, with one qualification that has been rendered effectively moot by the 17th Amendment, Congress may supersede state law.

This is one of few clauses in the Constitution that affirmatively require the exercise of authority by the states. It raises interesting questions about the applicability of the traditional “default” view that all powers not affirmatively delegated to Congress or explicitly denied to the states, are reserved to the states or the people, as reflected in the 10th Amendment. Does this explicit provision “create” power for the states to act? Or, does the clause require the states to exercise a power they already have, but that they could ignore in the absence of this command?

Justice Stevens, writing for the majority, and Justice Thomas, writing for four dissenters, debated that issue in a fascinating case, U.S. Term Limits v. Thornton, in 1995. Term Limits addressed the constitutionality of an Arkansas state constitutional amendment that imposed term limits on its Senators and Representatives. Technically, the opinion involved the interpretation of the “qualifications” clause of Article I, Section 2, clause 2, whether term limits constituted an unconstitutional addition to the listed qualifications. But both sides (especially Justice Thomas) explored the applicability of Article I, Section 4, and the question of state power to act when the Constitution is silent.

The majority held that the states have no powers to act in matters that spring exclusively out of the existence of the national government created by the Constitution, unless the Constitution itself delegates that power to the states. Justice Stevens quoted the brilliant early-19th century nationalist Justice Joseph Story that, “No state can say, that it has reserved, what it never possessed.” He also noted that Alexander Hamilton, writing in Federalist 59, had warned of the danger to the Union’s existence if the states had the exclusive power to regulate Congressional elections.

In Stevens’s view, the Constitution created the national government ex nihilo, and the states had reserved powers only in those areas previously within their legislative discretion. Hence, since there was no affirmative grant to states to add qualifications for federal representatives, such power did not exist. Stevens viewed Article I, Section 4, as evidence for this proposition, as it (in his view) delegated authority to the states to act that, in the clause’s absence, would not have existed, while giving Congress ultimate control.

Stevens’s position makes it unclear why the clause is needed at all. Presumably, if the states do not have the inherent power to control the manner of election of the national legislature, but such power rests instead in the federal government, Congress already has ultimate control over the manner of election. Also, if this was delegation to the states, there is no need to declare what the states “must” do, and what Congress “may” do.

Justice Thomas found Stevens’s view to be exactly backwards. Since the states once had all powers, including the power to create whatever Union they wanted, or none at all, they also retained whatever authority they had not surrendered or that was not denied them in regards to the composition of the national government. Since the Constitution does not deny the states the power to add (but not subtract) from the listed qualifications, term limits are constitutional. Moreover, Article I, Section 4, does not detract from the general position that the states have all reserved powers. Thomas saw this provision not as a delegation to the states from the people, created by the Constitution. Rather, this is an imposition on the states of a duty to act, where otherwise none would exist.

Thomas pointed out that, without such a clause, the states could still determine the time, place, and manner of electing members of the national legislature. But they also might refuse to elect members of Congress, to cripple the federal government just as Hamilton warned. This clause, then, imposed a duty on the states (“must”) to exercise that power, subject to the authorization to Congress (“may”) to override the states’ choices. As a corollary, if the clause did not exist, Congress would have no power to act.

Until 1842, Congress left regulation of such elections to the states. States did not adhere to a single standard of electing Representatives (Senators were still elected by state legislatures). Often, at least some Congressmen were elected at-large. In that year, Congress began to require that single-member districts be used. By 1911, federal law mandated that such districts be “composed of a compact and contiguous territory and containing as nearly as practicable an equal number of inhabitants.”

When a later law eliminated that last requirement, substantial malapportionment occurred. Eventually, the Supreme Court waded into this “political thicket,” using another related provision, Article I, Section 2, to strike down apportionment that resulted in districts of disproportionate populations. A nearly absolute “one man-one vote” equality emerged to assure that, as nearly as practicable, “one man’s vote in a congressional election is to be worth as much as another’s.”

Additional questions raised by this clause are whether Congress could regulate primaries that, after all, are an integral part of the election process (based on Supreme Court opinions, today it probably could) or financing of Congressional elections (yes, within the broad contours of the First Amendment). Congress can prescribe the mechanics of voting, as well.

State laws are still important. For example, states still control the requirements for recounts, as a number of candidates in various close races in November, 2010, discovered. As well, states have different rules (and interpretations by state courts) for replacing candidates who drop out shortly before the election. Frank Lautenberg of New Jersey was permitted to replace corruption-plagued Democratic Senator Robert Torricelli on the ballot when the latter withdrew a month before the election. On the other hand, Texas Republicans were not permitted to replace Tom DeLay’s name on the ballot when he withdrew five months before the election.

An expert on constitutional law, Prof. Joerg W. Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. He has also spoken on business law and contemporary constitutional issues before professional and community forums.  Read more from Professor Knipprath at: http://www.tokenconservative.com/ .

 

March 2, 2011 – Article I, Section 03, Clause 3 of the United States Constitution – Guest Essayist: Andrew Langer, President of the Institute for Liberty

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Article 1, Section 3, Clause 3

3:  No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen.

In setting out the framework for the fledgling government, the founders grappled  with the most basic issue of creating a government that would not be so powerful as to overwhelm the citizenry, but still strong enough to withstand the test of time.  The Senate, created as an analog to the upper house of Britain’s parliament, was meant to be a more deliberative body than the House of Representatives.

As such, the qualifications are rather different than those set out for House members.  House members need only be 25 years of age, American citizens for only seven years, and need not be actual residents of their congressional district at the time of the election.

In fact, the qualifications set out in this section are rather more proscriptive than those set out in other sections, and it begs the question, “why.”  Keeping in mind that this project will discuss the 17th Amendment at a later time, suffice it to say that initially United States Senators were to be selected by the legislatures of individual states.  Because those doing the selection would be a narrower group in size and scope, the founders wanted to make certain that appropriate choices would be made by these state legislators.  While there is tremendous accountability in having legislators do that selecting, nevertheless the authors of the Constitution thought it best to place strict rules on those qualifications.

Digging deeply into those qualifications themselves, what first jumps out is that the age requirements are greater than those for the House.  If we are to understand that the Senate was to be the more deliberative of the houses of the US Congress, then this makes perfect sense.  The founders recognized that the Senate ought to have a greater level of gravitas (given the limitations on size)—and such gravitas generally comes with age and experience.  Even in the 18th Century, there was a tremendous leap in maturity between the ages of 25 and 30 (which, given life expectancies at the time was approaching middle age).  Madison, in Federalist #62, referred to this as “stability of character.”

This requirement also opens the possibility of potential Senators gaining federal legislative experience by first being members of the US House of Representatives.

Most people are surprised to learn that there are no actual “residency” requirements for US House members—they must merely inhabit the states whose districts they are supposed to represent.  The Constitution’s authors had tremendous faith in the people in terms of being able to decide the propriety of those they would directly elect.  In both the requirements for House members and for Senators, they use the word “inhabit” to make it abundantly clear that they wanted these elected officials to live in their states—and again, the founders came down somewhat more strictly on potential Senators.  According to various historical accounts, Convention Delegate (and member of the committee to author the Declaration of Independence) Roger Sherman moved specifically to substitute “inhabit” for “resident” for these reasons.

While there may have been adequate reasons for not requiring habitation in House districts in the 18th and early 19th centuries, given the finite number of Senators from each state the founders wanted to ensure that someone from that state would be representing that state’s interests in the Senate.  This was especially important when one considers that given the realities of travel and transportation at this time, as well as prevailing political perceptions (as evidenced later by the 9th and 10th Amendments), the states themselves were viewed as sovereign entities in their own right.

According to the Senate’s official history, the 9-year citizenship requirement was a compromise—between those who believed that anything less would allow for people with a remaining “dangerous attachment” to their mother countries to gain undue influence in American affairs (especially given the Senate’s role in ratifying treaties with foreign nations), and those who believed that anything more would hinder “positive immigration” and offend those nations in Europe who had lent support for our revolution.

It is interesting to note in this regard that this qualification differs greatly from that of the President’s.  The founders recognized that because the Senate’s power was diffused among many members, the President, as Commander-in-chief  and the Chief Executive of the United States, acts with a solitary and unilateral power (within limits).  So while the President must be a natural-born citizen, the same does not hold true for Senators.

All in all, while relatively straightforward, once again the founders demonstrated their brilliance in laying out a strong yet simple framework for our nation’s government.

Andrew Langer is President of the Institute for Liberty http://www.instituteforliberty.org/

Posted in Analyzing the Constitution Essay Archives | 10 Comments »

February 25, 2011 – Article I, Section 02, Clause 4 of the United States Constitution – Guest Essayist: William C. Duncan, Director of the Marriage Law Foundation

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Article 1, Section 2, Clause 4:  When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies.

The wisdom and foresight of the Framers of the U.S. Constitution is not manifested only in the substantive principles of constitutional design but also in the details of their plan of government. Thus, in the seemingly small matter of filling vacancies in the House of Representatives, we see manifestations of protection of state prerogatives, safeguarding the representative principle and flexibility for specific circumstances. See Joseph Story, 2 Commentaries on the Constitution §683 (1833).

The fourth clause of the section of Article I dealing with the House of Representatives provides: “When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such vacancies.” Though the Framers might have provided for a national solution to the problem of a vacancy, they deferred to the state. They did not, however, leave to the state executive (it should be remembered that some states did not yet have governors at the time of the drafting, thus the use of “Executive Authority” which could include the presidents of Delaware or Pennsylvania) the ability to appoint a successor to a Representative who had left a vacancy. Rather, in keeping with the principle of representation so central to the plan for a House of Representatives, the Framers specified that an election should be held to determine a replacement. Thus, no section of the country should be left without a popular representative for long. By contrast, a vacancy in the Senate was to be filled by the Legislature or temporarily by the executive (until the 17th Amendment), reflecting the design of that branch as representative of the interests of states as states.

The only major controversy involving this provision seems to have occurred early on when William Pinkney, from Maryland, resigned as a member of the House of Representatives. Some members of Congress questioned the propriety of seating the man elected to fill the vacancy. Their concern was that perhaps a resignation ought not be allowed, following precedent from Britain’s House of Commons. That argument was not accepted by the body and the successor was accepted as a member of the House. See Philip B. Kurland & Ralph Lerner, editors, 2 The Founders Constitution 146-147 (1987).

This clause is still operative. As of this writing, a vacancy has occurred in New York’s 26th District due to the resignation of Representative Chris Lee. New York law gives the governor power to determine that a vacancy exists and then to provide for an election for the replacement. N.Y. Public Officers Law §42. Importantly, there seems to be no controversy over the constitutional provision at issue only at the expense of an election. See Evan Dawson, “How Much Will a Special Election Cost?” 13WHAM (Rochester), February 9, 2011 at http://www.13wham.com/content/blogs/story/Chris-Lee-Fallout-How-Much-Will-a-Special/qn57U3H1VkyesU0gu3cmoA.cspx.

Mr. Duncan is director of the Marriage Law Foundation (www.marriagelawfoundation.org). He formerly served as acting director of the Marriage Law Project at the Catholic University of America’s Columbus School of Law and as executive director of the Marriage and Family Law Research Grant at J. Reuben Clark Law School, Brigham Young University, where he was also a visiting professor

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13 Responses to “February 25, 2011 – Article 1, Section 2, Clause 4 of the United States Constitution – Guest Essayist: William C. Duncan, Director of the Marriage Law Foundation”

  1. BobG says:

February 25, 2011 at 10:38 am

I don’t see much discussion happening on this. It seems pretty straightforward. I would just like to say that it’s an excellent observation pointed out in the first sentence of the explanation “The wisdom and foresight of the Framers of the U.S. Constitution is not manifested only in the substantive principles of constitutional design but also in the details of their plan of government.”. I couldn’t agree more. It’s such a simple yet complete document. Breaking it down in this manor over the 90 days is a wonderful idea. It’s a shame this is not taught in our schools this way. Thank You.

  1. Janine Turner says:

February 25, 2011 at 10:47 am

Mr. Duncan,
I thank you for your interesting, insightful essay. It is always refreshing to see yet another aspect of the Constitution being applied today, once again emphasizing its relevancy. This clause demonstrates how intricate and vital all sections of the Constitution are. It is our reference, it is our roadmap. Citizens who think the Constitution is not relevant have not read it, and/or have not joined our educational forum!
God Bless,
Janine Turner

  1. Susan says:

February 25, 2011 at 12:27 pm

Hmmm, wonder what the attitude towards preserving states rights would be if our Governors were call State presidents instead? Governor has a subservient connotation to the superior authority whereas a State President seems to me would elevate the governor to a similar position.

  1. Ralph T. Howarth, Jr. says:

February 25, 2011 at 3:59 pm

Good observation Susan. The original draft constitution submitted to the 1787 ConCon actually had the US President elected by the Senate and not the Electoral College.

  1. Donna Hardeman says:

February 25, 2011 at 4:22 pm

@BobG – not only should it be taught this way in undergraduate school but, more importantly, in law school. During law school, I was taught about precedent, i.e. what the Supreme Court had decided and the line of cases following a certain decision. It never occurred to me then – of course, what does anyone know at that age – that a more basic understanding of what it actually means would be the best foundation for our interpretation of laws and the practice of law. What we have now seems to be a game of “telephone” played by the jurors “du jour.” I would even go a step further and make a requirement that everyone arguing in front of SCOTUS be required to address the intention of the Founders – then they can talk about their beloved precedent!!

  1. Susan says:

February 25, 2011 at 5:36 pm

I stand and cheer Donna I could not have said it better, and coming from one who attended law school it carries just a bit more cache!

  1. Ralph T. Howarth, Jr. says:

February 25, 2011 at 6:37 pm

Thanks Donna on voicing what is the issue of Judicial Review. And the following is English Common Law procedure on interpreting law that American Lawyers used to do up to the late 1800s:

Blackstone provided an explicitly numbered serial order of steps toward carrying out those “intentions at the time when the law was made.”

First, the words were “to be understood in their usual and most known signification.”
In short, the judge was not to interpret the words de novo in whatever way grammar and the dictionary would permit, much less according to later beliefs or usage.
Only when “words happen to be still dubious” was it permissible, according to Blackstone, to go on to the …

Second step: try to “establish their meaning from the context.”
It was the original cognitive meaning, not intent in the sense of psychological motivation or philosophical values, which was being sought.

Third step: determining what was “in the eye of the legislator,” only as a guide to the cognitive meaning of words still undetermined by the first two steps.
Only where words still had no significance or “a very absurd signification” the…

Fourth step: “we must a little deviate from the received sense,” so that a law, for example, against shedding blood in the street should not apply to a surgeon treating an injured man where the fourth step is not admissible if violating the first three steps. It did not involve conceiving new meanings, whether based on later insights, judicial conscience, or the philosophical values presumed to motivate the original law.

These themes elaborated by Blackstone and Holmes continue to be echoed by contemporary advocates of judicial restraint. For example, the self-disciplined judge, according to Richard Posner “is the honest agent of others until the will of the principals can no longer be discerned.”

from an article by Thomas Sowell, Judicial Activism Reconsidered

  1. Jon says:

February 25, 2011 at 9:28 pm

I wonder does anybody know roughly when SCOTUS started using precident to decide cases? I would like to read cases that reflect the difference in methods.

Thanks

  1. Donna Hardeman says:

February 25, 2011 at 10:01 pm

I’m gonna miss you guys for a week. Going to a legal convention. I will print up everything and read it and join again in a week’s time.

  1. Debbie Bridges says:

February 25, 2011 at 11:06 pm

I would have thought that Studying the Constitution would be the very FIRST course taught in law school!

Thank you for starting this 90 day study. I enjoyed the Federalist Papers immensely as I learned so much. I have enjoyed reading and commenting some so far and look forward to learning more about the Constitution. What a great site this is. I have recommended this site to my friends on facebook. Hopefully they will check it out.

  1. Ralph T. Howarth, Jr. says:

February 26, 2011 at 12:42 am

Jon, precedents are actually part of the English Common Law under the principal of Stare Decisis: Latin for “let the decisions stand”. It has been customary of judges to want to avoid over turning peer decisions if it can be helped. Which is rather sound if you think about it. How can you have justice when judges make all sorts of opinions about the law to where litigation becomes more of a “slot machine” of chance?

The real question you want is when did the SCOTUS depart from the English Common Law of interpretation and took up rather the Case Law method to where the actual upholding the originalism of the law is kicked to the curb? I do not think that is a cut-and-dry answer as it happed by hook and by crook but a strong authority on this I would say is James R. Stoner, Jr., author of Common-Law Liberty: Rethinking American Constitutionalism and Common Law and Liberal Theory: Coke, Hobbes, and the Origins of American Constitutionalism.

What I do know is that cerca 1870′s was a turning point where the practice of observing the English Common Law was dropped but only borrowing some of the procedural rudiments of the English Common Law. This is a problem. Why? Because doing so has the end run affect of amending the US Constitution by changing the legal underpinnings of terms and language used in constitutional law without having been put forth as a measure of ratification by 3/4ths the states. The states never consented to any such legal manuevering. I will post here if I find something more specifc in due course.

  1. Scott Miller says:

February 26, 2011 at 4:49 am

Mr. Howarth, why do you use “ConCon” over the phrase “Constitutional Convention”? I mean no disrespect, sir, but I find the use of “ConCon” rather than “Constitutional Convention” offensive and rather disrespectful of our Founding Fathers…

  1. Ralph T. Howarth, Jr. says:

February 26, 2011 at 3:14 pm

ConCon is a short phrase used in political commentary, debates, academia and journalism. And it has been used by those who revere the intents of the Founding Fathers so I had no idea that anyone who would be offended by such usage. In this day and age, I had just learned last night that BRB means “be right back” and TTFN means “ta ta for now” from doing an IM exchange in regards to arranging renovation on a home.

But I see what you mean as I have had people who do not often read newspapers and other forms of media coverage where the mode is to introduce a person or place first, and then resort to an abbreviated form like a person’s last name later in the text. Immediately upon hearing/reading the abbreviated form, the hearers take it as disrespect. They partly do this to keep the text short as no wonder they have to squeeze everything in columns and avoid over running onto another page. The same applies here. Several times I had to cut my writings down to avoid over running the window size of the posting here, in case you did not know, there is a 3000 character limit.

So my usage is out of habit by reason of the mode of exchange here. But no intents of disrespect on my part. Sorry for my being terse. But you will find me holding the founder’s in admiration and wonder; and I have been alleged to be a founder father worshiper by those who take them lightly. I also suffer some from interpersonal relations for health reasons: I will expend myself at a task at hand to complete it at the expense of amenable relations on the hows and whys what I am doing matters in part because I may be in shock at the time. For this cause, I may take extra time out in writting something to make it seque well with a thread, and if I am not quick enough, then the moment changes and now what I wrote does not fit as well and has to be rehashed again.

May 21, 2010 – Federalist No. 18 – The Same Subject Continued: The Insufficiency of the Present Confederation to Preserve the Union, For the Independent Journal (Hamilton & Madison) – Guest Blogger: Andrew Langer, President of the Institute for Liberty

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Friday, May 21st, 2010

Federalist #18

What sets the founding of the American republic apart from the founding of so many nations on Earth was the depth and breadth of knowledge, research, analysis and debate that went into it.  This is made evident from Madison’s Federalist #18, written under his pseudonym “Publius”.  In 18, Madison delves deeply into the experience of the ancient Greek states and the various federations, alliances, and confederations that they had historically formed.  In an era without instant electronic access to libraries of information, the sheer amount of scholarship presented in these pieces is nothing short of astounding.

Federalist #18 charts the shortcomings that arose within these various confederacies, presenting them as analogs and object lessons for the then-current struggles the fledgling republic was experiencing.  The message was simple:  we must learn from these mistakes, and make every effort to correct where the learned Greeks were deficient.  It is the essence of archival scholarship:  those who do not know history are doomed to repeat it.

Two key lessons emerge.  First and foremost, the issue of balancing minority interests against those of a powerful majority, and vice-versa.  It was only though the careful historical scholarship of the founders that the delicate structures that we have today were created—and direct lines can be drawn from these lessons to the creation of two very different legislative branches, one stemming from direct democracy (The House), the 2nd stemming (initially) from a more genteel (but, in my estimation far more responsive to the people) source of power (The Senate, which until the ratification of the 17th Amendment drew its members from the nominations of state legislatures); the electoral college (which serves to balance the interests of rural and urban population centers); as well as the very system of dual sovereigns that underpins the system of federalism.

The second lesson arose out of the first—that whatever federal union would be created, would have to be strong.  That even though federalism “secures to citizens the liberties that derive from the diffusion of sovereign power” (The Supreme Court in Coleman v. Thompson, 501 US 722, 759 (1991)), nevertheless there would still have to be a strong and unified central power, to ensure that the nation would not only grow and prosper, but be able to effectively defend itself.  There is strength to be had in numbers, and this is the essence of E Pluribus Unum (Out of Many, One).

Call it happenstance, call it the coincidence of timing and talent, or call it (as I do) divine providence.  The bottom line is that at the time when this nation needed learned minds and steady hands guiding it, those men were to be found leading it.  Their grasp of the lessons of history (both the mistakes, and triumphs) are evident in Federalist #18.

Andrew Langer is the President of the Institute for Liberty

 

June 3, 2010 – Federalist No. 27 – Cathy Gillespie

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Friday, June 4th, 2010

Thank you to our Guest Constitutional Scholar Blogger, Julia Shaw!  And thank you to all who posted your comments today.

While reading Federalist 27, I found myself thinking, “How was Hamilton so wrong?”

He begins by arguing with one of the premises of the anti-federalists:

“As far as I have been able to divine the latent meaning of the objectors, it seems to originate in a presupposition that the people will be disinclined to the exercise of federal authority in any matter of an internal nature.”

Hamilton may be correct that people will be accepting of the federal government if it is well administered, but as Peter Roff so correctly points out in his coment today, it is impossible to effectively manage the behemoth the federal government has become.  And while most people do not mind the exercise of federal authority in the internal matters enumerated as federal powers in the Constitution, what they do mind is the federal government’s usurpation of those powers that according to the 10th Amendment are ”reserved to the States respectively, or to the people.”

This quote startled me as well:

“The inference is, that the authority of the Union, and the affections of the citizens towards it, will be strengthened, rather than weakened, by its extension to what are called matters of internal concern.”

Ask any small businessperson who is struggling to comply with EPA, OSHA, IRS, and numerous other sources of “red tape,” if his or her affection towards the federal government is strengthened or weakened by all the mandates, regulations, rules and laws with which he must comply.

Hamilton could not have imagined the reach the modern day federal government has into U.S. citizen’s “internal” lives.   He had no way of knowing the 17th Amendment would be added to the U.S. Constitution, one of many factors that threw off the systems of checks and balances the founders had so carefully constructed to avoid a power grab by the federal government.

Hamilton got this right, however:

“It will be sufficient here to remark, that until satisfactory reasons can be assigned to justify an opinion, that the federal government is likely to be administered in such a manner as to render it odious or contemptible to the people, there can be no reasonable foundation for the supposition that the laws of the Union will meet with any greater obstruction from them, or will stand in need of any other methods to enforce their execution, than the laws of the particular members.”

Many would argue that we are moving into the “odious and contemptible” zone with the ever expanding powers of the federal government contained in some of the legislation passed in the last few years.  At least 13 states would deem the health care bill “odious and contemptible,” as they mount their constitutional challenges to it.

In the comments section tonight, Adam proposed an interesting idea – a fourth branch of government entitled the Accountability Branch.  I would argue that branch already exists, but it goes by another name: “We The People.”  We are charged with keeping the government accountable.  As Janine wrote so eloquently in her Fox News Op Ed, Your Vote is Your Voice, http://www.foxnews.com/opinion/2010/04/30/janine-turner-supreme-court-justice-constitution-elections-elected/, our power to vote is the great leveler in restoring the balance to our government.

In order to use that power wisely, We The People, of the Accountability Branch, must be educated and awake.  Thank you to all of you for your participation, and for your wakefulness!  Let’s keep spreading the word, and inviting others to join us!

Good night and God Bless,

Cathy Gillespie

 

June 9, 2010 – Federalist No. 31 – Cathy Gillespie

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Wednesday, June 9th, 2010

“IN DISQUISITIONS of every kind, there are certain primary truths, or first principles, upon which all subsequent reasonings must depend. These contain an internal evidence which, antecedent to all reflection or combination, commands the assent of the mind.”

Federalist No. 31 has one of the strongest beginnings and endings of any of the essays I have read so far.  Hamilton begins by reminding us of the importance of “primary truths,” and “first principles.”  When our elected officials are guided by the first principles and truths upon which our country was founded, our freedom and prosperity will be protected.

Mr. Cooper makes an excellent point in his essay today, that instead of scrutinizing specific tasks the government takes on, our elected officials should start from the macro level, and apply first principles in every decision, asking the question, “is this task a legitimate function of the federal government?”

After laying out the importance of the guiding truths in discerning the legitimate functions of government, Hamilton makes the case for the federal government having the “unqualified power of taxation,” so it has the resources to fulfill those duties and powers for which it is responsible, according to the Constitution.

Our modern day problem is that the federal government has utilized its power to tax, to fund powers far beyond the scope of those enumerated in the Constitution.

Hamilton could not imagine the federal government’s modern day usurpation of powers because the checks and balances the founders designed were meant to curb governmental encroachment.  Indeed, because of the power of the states in selecting U.S. Senators (before the adoption of the 17th Amendment), Hamilton envisioned States more likely to usurp federal powers, than the other way around.

Hamilton closes by reminding us that the responsibility to stop the encroachment of government at the state or federal level, rests with the people, thus ending Federalist 31 as strongly as he opens it.  “We the people”  must keep government within its proper scope and powers “delineated in the Constitution.” He states that the people “hold the scales in their hands,” and hopes they “will always take care to preserve the constitutional equilibrium between the general and the State governments.”

“Everything beyond this must be left to the prudence and firmness of the people; who, as they will hold the scales in their own hands, it is to be hoped, will always take care to preserve the constitutional equilibrium between the general and the State governments.”

How will “We The People,” adjust the scales to bring the constitutional equilibrium back into balance?  It is clear the founders expect us to.

Good night and God Bless,

Cathy Gillespie

 

June 9, 2010 – Federalist No. 31 – Janine Turner

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Wednesday, June 9th, 2010

Howdy from Boston! It is thrilling to be here in a city that has so much revolutionary history! Juliette and I walked around in the rain and saw State Hall and Park Church. (Be sure to watch our behind the scene video!) We also saw the graves of Samuel Adams, Paul Revere and John Hancock. I spoke Samuel Adam’s words over his grave, “The pooling of property and redistributing of wealth are despotic and unconstitutional.” The bells then started to ring from Park Church so I said recited it again!

As I read Federalist Paper No. 31, I felt such a since of wonder and also such a sense of gratitude that I am having this opportunity to read the words of Publius. Understanding their interpretation of the United States Constitution and their vision of the country is empowering and incredibly relevant.

I am most intrigued with how the structure and checks and balances of our then newfound government were founded with such reason and based on the guidance and wisdom of history. As I read and digest their words, I am realizing how far we have strayed from their original intent. One of the ways is with the seventeenth amendment. This was a pivotal part of the balance of government. The seventeenth amendment was one of the ways that the states could keep their power. The senate was to represent the states and the house the people.

I wonder if the healthcare bill would have ever passed if the Senate had been left in its original intent? I also wonder if the Federal Government would ever have had the opportunity to become so vast and powerful if the Senators had continued to be elected by the state legislatures? Who has been looking after the states’ interest since the passing of the 17th Amendment?

The Federalist Papers reveal that Publius and our Constitutional forefathers never intended for the federal government to become so intrusive into the states’ rights, the states’ affairs or citizens’ lives. Alexander Hamilton writes in Federalist Paper No. 31, “I repeat here what I have observed in substance in another place, that all observations, founded upon the danger of usurpation, ought to be referred to the composition and structure of the government, not to the nature and extent of its powers. The state governments, by their original constitution, are invested with complete sovereignty.”

Do our states have complete sovereignty today?

Another interesting statement in Federalist Paper No. 31 is: “As in republics, strength is always on the side of the people; and as there are weighty reasons to induce a belief, that the state governments will commonly possess most influence over them, the natural conclusion is, that such contests will be most apt to end to the disadvantage of the union; and that there is greater probability of encroachments by the members upon the federal head, than by the federal head upon the members.”

Is this true today? I say it is not true today.

Alexander Hamilton’s last paragraph of Federalist Paper No. 31, is our call to action, “Everything beyond this, must be left to the prudence and the firmness of the people; who, as they will hold the scales in their own hands, it is to be hoped, will always take care to preserve the constitutional equilibrium between the general and the state governments.”

“Everything beyond this must be left to the prudence and the firmness of the people; AS THEY HOLD THE SCALES IN THEIR OWN HANDS..” This quote has a tremendous amount of treasure. We, the American people must have prudence and firmness in regard to our governmental affairs. Publius talks often about the “genius of the people.” We should not underestimate ourselves. We should call upon our prudence in governmental affairs and we should be firm. The best way to do this is to be vocal and to vote. We the people rule… through our elected officials.

When I think about the shift in power in our governmental structure and checks and balances, I think about how our founding fathers would be greatly distressed. I, also, ponder upon the political environment during the years around 1913. Why was this amendment allowed to happen? Were our predecessors not firm, informed or prudent?

Of course, this will very likely be the thought process that our grandchildren may have about our generation? “Why did they allow our liberties to be constrained, our country to be diminished, by living beyond their means?”

It was we, the American people, who were to hold the scales in our hands. It was we who were to preserve the constitutional equilibrium between the general and the state governments. We the people. If our country fails it is because we the people have let it. Benjamin Franklin, when asked what he had constructed for the people during the Constitutional Convention, responded, “A republic, if you can keep it.”

Do our children know that they are the, “we the people?”
Or do they think it is the, “we the government?”

It is by our actions, education and involvement that they will see the true intent of our founding fathers, our United States Constitution and a government of the people, by the people, for the people. May it not perish from the earth.

God Bless,

Janine Turner

 

June 21, 2010 – Federalist No. 39 – The Conformity of the Plan to Republican Principles, For the Independent Journal (Hamilton) – Guest Blogger: John S. Baker, Jr., the Dale E. Bennett Professor of Law at Louisiana State University

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Monday, June 21st, 2010

Federalist 39 answers attacks that the proposed Constitution is not “republican” and not “federal.”  In his response, Publius effectively redefines both terms.

Claiming the proposed government is not “strictly republican” is a serious charge.  Publius recognizes this, saying “no other form would be reconcileable with the genius of the people of America; with the fundamental principles of the revolution; or the honorable determination which animates every votary of freedom, to rest all our political experiments on the capacity of mankind for self-government.”

The term “republican” ( Latin “res publica,” or “public thing”) had an uncertain meaning.  Common to its various understandings would have been an opposition to an hereditary monarchy and aristocracy. Republicanism referred to self-government, but proponents and opponents of the new Constitution had very different ideas about what that meant.

On the one hand, Publius acknowledged that “If the plan of the convention, therefore, be found to depart from the republican character, its advocates must abandon it as no longer defensible.” On the other hand, the vision of republicanism offered by The Federalist was quite different from that of the opponents.

Those opposing the Constitution, the Anti-federalists, generally believed that a republic could exist only within a small territory where citizens were able to know one another, live a communal life, and directly govern themselves. Their reading of the French political writer Montesquieu and the example of the ancient republics convinced them that liberty was possible only in such republics.  Thus, the Anti-federalists argued that the government to be created by the Constitution would deprive the people of their liberty.

Publius had already argued in Federalist 9 that “the petty republics of Greece and Italy” leave one “feeling sensations of horror and disgust” because “they were perpetually vibrating between the extremes of tyranny and anarchy.” He also observed that opponents to the Constitution apparently were unaware that the states were already larger than the republics discussed by Montesquieu and that he praised the benefits of a larger “confederate republic.”  Indeed, The Federalist contributes to political theory the idea that liberty is better protected in a large republic, as fully explained in Federalist 10.

Federalist 39 asks “What then are the distinctive characters of the republican form?”  Publius finds that political writers have wrongly applied the term to states that do not deserve to be called republics. Consulting principles of government, Publius says “we may define a republic to be, or at least may bestow that name on, a government which…”  (emphasis added). In other words, he is giving his own definition of the term republic, one which corresponds to principles embodied in the new Constitution.  Thus, Publius says a republic may be defined as “a government which derives all its powers directly or indirectly from the great body of the people; and is administered by persons holding their offices during pleasure [presidential appointees], for a limited period [members of Congress and the President], or during good behavior [federal judges].”

Finally, Federalist 39 contends that the language in the Constitution explicitly prohibiting titles of nobility and guaranteeing the states will have a republican form of government proves the republicanism of the proposed government.

This large republic was also to be a (con)federal republic. But the Anti-federalists also charged that the Constitution violated the federal form.  Publius did not actually deny this particular charge. Rather, he contended that “a just estimate of [the argument’s] force” requires first ascertaining “the real character of the government.”  Before explaining that the real character is only “partly federal,” he added that the argument’s force also depended on the authority and duty of the Convention.  In the following essay, Publius will argue that the authority of the Convention, as well as its duty to the people, justified creating the form of government proposed by the Constitution.

Given the common understanding of “federal” at the time, the Constitution did violate the federal form. Prior to adoption of the Constitution, the words “federal” and ‘confederal” meant the same thing, just as “flammable” and “inflammable” currently have the same meaning. The Federalist, itself at times, used these terms interchangeably.  Clearly, however, the Constitution proposed to create something different from the existing confederacy.

Federalist 15 had identified the great vice of a confederacy as the attempt by a league of states to legislate for state governments, rather than for individuals.  The Articles of Confederation did not directly govern individuals, but the Constitution would do so – within its limited list of powers. The new government’s ability to reach individuals and the “necessary and proper clause” prompted the Anti-federalist fear that the Constitution would completely consolidate power in a national government.

Publius had to explain that the Constitution would not create a consolidated national government. Federalist 39, therefore, explained the mixture of federal and national elements among five essential aspects of the Constitution: its ratification or foundation [national], the sources of its ordinary powers [partly federal –the Senate; partly national-the House], the operation of its powers on individuals [national], the extent of the powers, i.e., limited [federal], and the method of amendment [neither wholly federal nor national].   Based on this mixture of elements, Publius  concluded: “The proposed constitution, therefore, …is, in strictness, neither a national nor a federal constitution; but a composition of both.”

This “compound republic” created by the federal Constitution came to be known as “federalism.” As a result, the “federal” form became distinguished from the “confederal” form  existing under the Articles of Confederation. This new form of federalism involved a residual – rather than complete – sovereignty in the states.  Indeed, as a limited Constitution, neither the federal nor the state governments were “sovereign” in the true sense of the word as a supreme power answerable to no other power.  Rather, under the Constitution, “We the people of the United States” are the political sovereign and the Constitution is “the supreme Law of the Land.”

Some argue that the Anti-federalists correctly predicted the consolidation of power in the national government.  Such an argument, however, overlooks the critical shift of power caused by the Seventeenth Amendment.  That amendment took the election of US senators from state legislatures and gave it to the voters.  As a result, the key federal, i.e. state, protection against the concentration of power was lost.  That is to say, the Seventeenth Amendment deprived the states of their direct representation in the federal government.   As long as the state legislatures elected senators, the states had the ability to pressure enough senators, even if only a minority, to prevent incursions on state power.  State legislatures no longer have that ability.

John S. Baker, Jr., the Dale E. Bennett Professor of Law at Louisiana State University, regularly lectures for The Federalist Society and teaches courses on The Federalist for the Fund for American Studies.

 

June 29, 2010 – Federalist No. 45 – Cathy Gillespie

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Tuesday, June 29th, 2010

“The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.” James Madison, Federalist No. 45

In Federalist 45, Publius once again assures us of the limited, but necessary nature of the federal government’s powers.  In previous essays Madison and Hamilton have assured readers that if, in the unlikely event, the federal government oversteps its bounds, the states will sound the alarm, and the people will rise up to defend the Constitution.

Of course, the picture painted by Madison of the few and defined powers of the federal government  in Federalist 45 is radically different than our reality today.  One is tempted to ask, how did these wise men get their prediction of the future so wrong?

Assuming the structure of government designed by our founders was sound and sufficient to preserve individual liberty, a more appropriate question might be, how did our country deviate from the roadmap they laid out for us?

The Constitution, as designed by our founding fathers, creates a system of government designed  to preserve the peoples’ individual liberty. Our liberty hangs in a delicate balance of power between the federal government and the states.

As with any delicate structure or piece of machinery, when you move a part that affects the balance, the structure begins to fall, or the machine ceases to function in the way in which it was intended.

One of the key points Madison makes in his assurance that the federal government will not encroach upon state governments is the provision in the Constitution that “The Senate will be elected absolutely and exclusively by the State legislatures….Thus, each of the principal branches of the federal government will owe its existence more or less to the favor of the State governments, and must consequently feel a dependence, which is much more likely to beget a disposition too obsequious than too overbearing towards them.”

The 17th Amendment, which took the appointment of U.S. Senators out of the state legislatures’ hands, and provided for the direct election of U.S. Senators by the people, fundamentally changed the structure of government the founders had designed.  An important check on the federal government’s power was removed.

The other factor Publius did not foresee was the phenomenon of federal funding offered to states with strings attached. As more burdens are placed on states by the federal government through unfunded federal mandates, the enticement of federal dollars with strings attached grows.  When states accept this type of funding, the federal government’s reach into the states’ purview increases.

Federalist 45 reminds us of what our country could look like, had the checks and balances laid out by the founders not been slowly eroded.  For many years, “We the people,” have not been paying attention.

As we go forward, we should remember Hamilton’s words in Federalist No. 33:

“If the federal government should overpass the just bounds of its authority and make a tyrannical use of its powers, the people, whose creature it is, must appeal to the standard they have formed, and take such measures to redress the injury done to the Constitution as the exigency may suggest and prudence justify.”

What a gift these words of Hamilton, Madison and John Jay are, patiently explaining the United States Constitution, and our founders’ vision for our country!   We cannot understand what we are losing, if we don’t understand what we had.

We cannot know if the Constitution is “injured,” if we do not know what is in the Constitution.  Thank you Professor Knipprath, and all the blogger commenters, for augmenting our understanding!

As Janine likes to say, “Your vote is your voice.” In these federalist papers we are finding our voice, and in November, our voice will be heard!

Good night and God Bless,

Cathy Gillespie

 

July 1, 2010 – Federalist No. 47 – Cathy Gillespie

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Friday, July 2nd, 2010

“The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, selfappointed, or elective, may justly be pronounced the very definition of tyranny.”

Federalist 47 begins a fascinating discussion of separation of powers.  Thank you to Dr. Baker for your insights on this essay!

“Separation of powers,” and “checks and balances,” are often used interchangeably, but as Dr. Baker pointed out, they are two distinct terms.  If our government had merely separation of powers, without the checks and balances, we could fall prey to tyranny through the separate “silos” of government.  There would be no impeachment process for a President who violated the law; there would be no Senate confirmation of Supreme Court or high level Administration appointments. There would be no Presidential veto of legislation passed by Congress.  And there would be no rulings on the Constitutionality of legislation passed by Congress.

But “checks and balances,” mean that powers cannot be totally separated.  They are shared, and that is what creates the balance.  The President shares legislative power with the Congress through his veto.  The Congress shares executive branch power through their participation in the confirmation process and the impeachment process.  The courts share legislative power in their ability to declare legislation brought to them for adjudication as unconstitutional.  The states and federal government share responsibility for amending the Constitution through the amendment ratification process.  And ultimately, the people are the final check on government, through their vote.

Our founding fathers put the greatest care and thought into designing a system of government that would best ensure our liberty. The structure of our government, under the United States Constitution, is designed to hold our liberty in a delicate balance. I picture our freedom suspended carefully, amidst an intricate structure, with interlocking parts, all dependent upon the other, yet with distinct columns and blocks representing the three branches of government, the federal government, and then the states.  Changes to the structure cause our liberty to “shift,” and ultimately, it begins to disappear.

As we have discussed earlier, the 17th Amendment was a major change to the structure of our government.  Other changes have happened in less obvious ways, but have had no less an impact on our liberty.

We must understand the careful structure of our government, as set forth under the Constitution, or else we will not know when the separation of powers, and the checks and balances are being disturbed.  If we don’t notice when one branch usurps the powers of another, we may not notice the ensuing disappearance of our freedoms, until it is too late.

The Federalist Papers left by our founders are like an owners guide to our Constitution.  They explain the Constitution, how it is constructed, why it is constructed as it is, and the historical framework they utilized to make the decisions they did.  What a blessing it is that our founding fathers can speak their words of wisdom to us today, through these great papers.

Good night and God Bless,

Cathy Gillespie

 

July 2, 2010 – Federalist No. 48 – Cathy Gillespie

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Saturday, July 3rd, 2010

It is essays such as Federalist 48 that validate Thomas Jefferson’s famous quote about the Federalist Papers, “the best commentary on the principles of government … ever written.”

The checks and balances of our government, so beautifully constructed by the founders, are based on this axiom from Federalist No. 48:

“It will not be denied, that power is of an encroaching nature, and that it ought to be effectually restrained from passing the limits assigned to it.”

Our founding fathers knew that separating powers into three branches of government was not enough to ensure the liberty of the people.  Without “checks,” any one branch could become tyrannical.

It is ironic that the best way to accomplish separation of powers is to not completely separate the powers, but for the three branches to “share” some aspects of the powers, in order to wield checks on each other.

It is also ironic that the legislative branch, the branch closest to the people (at least the U.S. House), is also the branch most likely to overstep its bounds.  The quotes in Federalist No. 48 about the legislative branch could easily have been written this year, as in 1878.

“The legislative department is everywhere extending the sphere of its activity, and drawing all power into its impetuous vortex.”

“The legislative department derives a superiority in our governments from other circumstances. Its constitutional powers being at once more extensive, and less susceptible of precise limits, it can, with the greater facility, mask, under complicated and indirect measures, the encroachments which it makes on the co-ordinate departments.”

“Where the legislative power is exercised by an assembly, which is inspired, by a supposed influence over the people, with an intrepid confidence in its own strength; which is sufficiently numerous to feel all the passions which actuate a multitude, yet not so numerous as to be incapable of pursuing the objects of its passions, by means which reason prescribes; it is against the enterprising ambition of this department that the people ought to indulge all their jealousy and exhaust all their precautions.”

“One hundred and seventy-three despots would surely be as oppressive as one.”

Madison points out the many reasons why legislative branches are prone to usurpations of power:

1. “Legislative power is exercised by an assembly,” …… with an intrepid confidence in its own strength.”

2. There are enough members of the legislative body to “feel all the passions which actuate a multitude,” yet few enough to actually act on those passions.

3. “Its constitutional powers being at once more extensive, and less susceptible of precise limits,” allow it to mask with greater ease “under complicated and indirect measures, the encroachments which it makes on the co-ordinate departments.”  (The “Commerce Clause,” and the “Necessary and Proper Clause,” are perfect examples in our federal legislative branch of the “more extensive, and less susceptible of precise limits,” of which Madison speaks)

4. The legislative department has the power to tax (“access to the pockets of the people”).

5. The legislative branch has some influence over the wages of those who fill the federal government jobs (“pecuniary rewards”), and controls the budgets of the departments and agencies.

The founders knew the predisposition of the legislative body, and thus built in checks on legislative power. One of the most important checks they devised was the appointment of U.S. Senators by the State Legislatures.  The removal of that “check” by the ratification of the 17th Amendment caused a disturbance in the balance of power, and allowed the Congress to encroach past its enumerated powers further than the founders ever dreamed possible.

In a blog comment on Federalist 46 today, Andrew points out an important truth:

“A key point most posters missed and that was not really addressed in the essay is that it still was voters who have approved of the expansion of the federal government. Voters elected congressmen and presidents who supported the expansion of the federal government. Most are reelected, and there is rarely any movement to undo expansions because those expansions are popular with the majority.”

Andrew is correct.  “We The People” allowed the checks and balances to break down. It is “We The People,” who are charged time and again with sounding the alarm and protecting the Constitution.

“If the federal government should overpass the just bounds of its authority and make a tyrannical use of its powers, the people, whose creature it is, must appeal to the standard they have formed, and take such measures to redress the injury done to the Constitution as the exigency may suggest and prudence justify.” Federalist No. 33 (Hamilton)

In order to protect the Constitution, and keep government in check, we must first know the Constitution and understand the principles upon which it was based.

Thank you all for a wonderful week of blog comments, and a big thank you to Professor Baker for his enlightening essay!  Federalist 48 is one of my favorite papers yet.

Looking forward to Federalist 49!

Wishing you all a wonderful July 4 weekend as we celebrate the birth our country!

Good night and God Bless,

Cathy Gillespie

 

 

July 6, 2010 – Federalist No. 49 & Federalist No. 50 – Cathy Gillespie

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Tuesday, July 6th, 2010

Greetings from Mt. Vernon, Virginia where we are busily sorting, copying, downloading and uploading We The People 9.17 Contest entries for our judges!   It is inspiring to see the hard work, creativity, and talent of young people across our Nation, all pondering and expressing “How the United States Constitution is Relevant Today!”

These young people give Janine and me hope, because they are the future “genius of the people,” the “fountain of power,” alluded to in Federalist No. 49.  Every student who sat and thought about the U.S. Constitution in order to compose a song, write and direct a short film or PSA, write an essay or poem, or draw an illustration, is a young person who is now more aware of our country’s founding principles, and more knowledgeable about the U.S. Constitution.

Federalist No. 49 and No. 50 make arguments against engaging the people too often on the very serious task of amending the U.S. Constitution.  In Federalist 49, Publius takes on the idea of calling a Constitutional Convention whenever one of the branches of government oversteps its bounds, and Federalist No. 50 argues against periodic, set and scheduled Constitutional Conventions.

It is argued in both papers that having the people too regularly and directly involved in changing the Constitution will cause passions to rule over reason.  Although the arguments in Federalist 49 and 50 against an Amendment process that was too open and subject to the political whims of the day are fascinating, I find it even more fascinating to explore the founders’  final result:  Article V of the Constitution.

The amendment process that resulted, is, like the rest of the Constitution, a marvel of design in checks and balances between state and federal power:

Article. V.

“The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.”

Either Congress (through a 2/3’s vote in both Houses) or the States (through 2/3’s of the State Legislatures calling for a convention) may initiate the Amendment Process.

To actually ratify the proposed Amendment, three-fourths of the States must approve, either through their State Legislatures, or by State Conventions, but it is interesting to note that the mode of ratification to be utilized is directed by Congress.

The beauty of the amendment process, as Madison described in Federalist 43 is:

“It guards equally against that extreme facility, which would render the Constitution too mutable; and that extreme difficulty, which might perpetuate its discovered faults. It, moreover, equally enables the general and the State governments to originate the amendment of errors, as they may be pointed out by the experience on one side, or on the other.”

In practice, what is our country’s history of amending the Constitution?  Has it worked out as well as Madison intended and predicted?

I found some fascinating answers in The Heritage Guide to the Constitution, pages 284-286 in an essay by Dr. Matthew Spalding and Trent England:

5,000 bills proposing to amend the Constitution have been introduced in Congress since 1789.

Of those 5,000 bills, only 33 amendments have been sent to the States for ratification.

The states have never succeeded in calling for a constitutional convention, although some of the attempts have gotten very close – within one or two states of the required 2/3’s.

Those supporting the 17th Amendment got very close, and were lacking only one state in their constitutional convention effort when Congress proposed the 17th Amendment.

Currently, there are 27 Amendments to the Constitution, the last one passed in 1992. Interestingly, this Amendment, the Congressional Compensation Amendment, was first proposed by James Madison in 1789!

The amount of amendments proposed versus amendments ratified, and the most recent amendment, which essentially took 200 years to pass, are examples that our Founding Fathers designed a process that met their goal of a process that was “neither too mutable,” nor fraught with “extreme difficulty.”

The amendments to our United States Constitution read like a history of our country.  Each one stands for a struggle, a herculean effort of the people to “form a more perfect union.”  Some took hundreds of years, others took less, but all were thoroughly considered and debated. And, interestingly, the longest amendment to the Constitution, textually, by my calculations, is the 14th Amendment, which at 434 words is shorter than most of these essays!

Looking forward to today’s comments on Federalist No. 51, one of my favorite Federalist Papers!

Your Fellow Patriot,

Cathy Gillespie

 

July 6, 2010 – Federalist No. 50 – The Same Subject Continued: The Total Number of the House of Representatives (Madison or Hamilton) – Guest Blogger: Brion McClanahan, Ph.D., author of The Politically Incorrect Guide to the Founding Fathers

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Tuesday, July 6th, 2010

The authorship of Federalist No. 50 is disputed.  Whether it was James Madison or Alexander Hamilton, the author’s arguments have ramifications for our current political problems and, in many ways, exemplify the nature of the federal government under the Constitution.  Federalist No. 50 opens with the following premise: “IT MAY be contended, perhaps, that instead of OCCASIONAL appeals to the people, which are liable to the objections urged against them, PERIODICAL appeals are the proper and adequate means of PREVENTING AND CORRECTING INFRACTIONS OF THE CONSTITUTION.”  The key to the opening is the last capitalized phrase.  The author then proceeds to discuss how conventions called for the purpose of “correcting infractions of the constitution” would be neither productive nor “adequate” to remedy unconstitutional abuse of power by any branch of government.

The author used the State of Pennsylvania as an example to prove his premise.  Pennsylvania had a Council of Censors in the 1780s that was charged with the task of determining if the State constitution had been violated and if the executive or legislative body was at fault.  But most of the men who held a seat on the Council also served in either the executive or legislative branch and they often split into “two fixed and violent parties.”  Their conclusions were often clouded by passion and their decisions ignored by the State government.  The author concludes, “This censorial body, therefore, proves at the same time, by its researches, the existence of the disease, and by its example, the inefficacy of the remedy.”  States would always divide into groups, and even if the State tried to remedy the problem by appointing men who had not been connected with the constitutional issue at hand, the author argues that, “The important task would probably devolve on men, who, with inferior capacities, would in other respects be little better qualified. Although they might not have been personally concerned in the administration, and therefore not immediately agents in the measures to be examined, they would probably have been involved in the parties connected with these measures, and have been elected under their auspices.”

The author, of course, implied that an outside “referee” would be no better to check unconstitutional abuses of government than the “checks and balances” contained within the Constitution itself.  The Senate is a check on the executive; the executive is a check on the congress, and the Supreme Court a check on both. But the author failed to consider one of the principle arguments against the Constitution and the checks and balances system: what or who will check federal power if they have a monopoly on the “checks and balances” system?  That was the heart of the anti-federalist critique of the federal judiciary, for example.  Certainly, Federalist No. 50 was cogent and persuasive, and the amendment process was always showcased as a fail-proof method of altering the Constitution, but the anti-federalists had much to say on the subject.

One of the best arguments against Federalist No. 50 appeared almost four months earlier in the Philadelphia Independent Gazetteer.  The author, An Old Whig, contended that the amendment process as written would never produce beneficial changes to the Constitution.  He called the procedures for amending the Constitution a “labyrinth,” and thought that before the process was over, “ages will revolve, and perhaps the great principles upon which our late glorious revolution was founded, will be totally forgotten. If the principles of liberty are not firmly fixed and established in the present constitution, in vain may we hope for retrieving them hereafter. People once possessed of power are always loathe to part with it; and we shall never find two thirds of a Congress voting or proposing any thing which shall derogate from their own authority and importance, or agreeing to give back to the people any part of those privileges which they have once parted with….”  Perhaps the Old Whig was correct.  Only seventeen amendments have been added to the Constitution since the Bill of Rights were ratified in 1791, and in reality only two, the 11th and the 22nd, limited the power of the central government.  Others such as the 14th, 16th, and 17th, increased it exponentially.

Interestingly, if Madison was the author of Federalist No. 50, he reversed his position on the issue of an external “referee” less than ten years after the Constitution was ratified.  Both he and Thomas Jefferson argued in the Virginia and Kentucky Resolutions of 1798 and 1799 that the States could interpose their sovereignty or “nullify” an unconstitutional federal law.  The question was not which branch of government was a fault—both the executive and legislative branch would be culpable under this scenario because congress passed the law and the president signed it—but whether the “checks and balances” system actually worked.  The people of the States, the very people Federalist No. 50 impugned as inferior, would thus rule on federal authority.  If the president and the congress in concert can ignore the Constitution—national healthcare, the federal stimulus, the nationalization of the auto industry—and if the federal judiciary is, as it often has been, a rubber stamp for federal legislation, how can it be reasonably argued today that checks and balances work?  The anti-federalists warned against such logic, and Jefferson and Madison provided the tonic, Federalist No. 50 notwithstanding.

Brion McClanahan, Ph.D., is the author of The Politically Incorrect Guide to the Founding Fathers.  He currently teaches History at Chattahoochee Valley Community College in Phenix City, AL.

 

June 7, 2010 – Federalist No. 51 – Cathy Gillespie

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Thursday, July 8th, 2010

Federalist 51 – what a quotable paper!  We have been busy on Facebook today (http://www.facebook.com/constitutingamerica ), rolling out many of the famous and insightful lines!

Thank you to Professor Baker for your wonderful essay, and for itemizing some of the well known quotes from this paper!

The biggest challenge we face today is our government “controlling itself.” As Publius points out:

“In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.”

Publius is quick to knowledge, in this paper and in many others, that the greatest control on government is the people:

“A dependence on the people is, no doubt, the primary control on the government.”

Yet, the founders brilliantly erected a governmental structure designed to control itself, as well.  One of the most important controls is the federal structure, with power divided between the states and national government.  But power is also divided within the national government, between the three branches, and going even further, the founders gave each of the branches “tools” to “check” the other.

Despite this well conceived structure, our government is not controlling itself today.  The national government has encroached upon areas far past its enumerated powers, and into the purview of states, and individual rights. As we have journeyed through these federalist papers, we have often asked, “what went wrong?”  How could our founding fathers design a system based so carefully upon history, proven successes, with improvements on historical flaws,that could not protect us from an overreaching federal government.

We have come up with many answers:

*state budget shortfalls (in part a result of unfunded federal mandates) that necessitate federal dollars (with strings attached)

*the addition of the 17th and 16th amendments

*an aggressive Supreme Court that interprets the Constitution as a “living” document

*a Congress that does not always respect Constitutional limits on federal powers

The most important reason, though, may be that the “primary control” on government, “the people,” have failed to pay attention, and to embrace their role.

Without the energy of the people, the structural system can only go so far to set limits on government.

It is now up to the “we the people,” “the primary control on the government,” to bring our system back into balance.  When “the people” work in concert with the structure our founders designed, we will once again start to glimpse the America our founding fathers envisioned.

And how do the people control the government?  First, by knowledge, and then, As Janine wrote in a recent Fox News Op-Ed: “Your Vote is Your Voice.” http://www.foxnews.com/opinion/2010/04/30/janine-turner-supreme-court-justice-constitution-elections-elected/

Good night and God Bless!

Cathy Gillespie

 

July 7, 2010 – Federalist No. 51 – The Structure of the Government Must Furnish the Proper Checks and Balances Between the Different Departments, From the New York Packet (Hamilton or Madison) – Guest Blogger: Professor John S. Baker, Dale E. Bennett Professor of Law at Louisiana State University

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Wednesday, July 7th, 2010

Federalist #51 is the most important of the essays in The Federalist, after #10. It completes the discussion of the general structure of the Constitution before Publius turns to a consideration of its particular elements. It ties together the main points of the previous essays.

Federalist #47 and #48 outlines the challenge of keeping the departments of government within their proper bounds; then Federalist #49 and #50 considers and rejects the suggestion of occasional or regular appeals to the people for that purpose.  Federalist #51, therefore, begins with the question: “To what expedient then shall we finally resort, for maintaining in practice the necessary partition of power among the several departments, as laid down in the constitution?”

Importantly, the answer is NOT a bill of rights! Rather, Publius writes, “[t]he only answer that can be given is, that as all these exterior provisions are found to be inadequate, the defect must be supplied by so contriving the interior structure of government, as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places.” (emphasis added).

As elsewhere, the analysis of the problem and the solution rest on an understanding of human nature. Each department must have a “will of its own,” which requires having “the means and personal motives” to defend its powers. Why the emphasis on power rather than “the common good.”  Isn’t this just a cynical approach to government?  Publius explains that enlisting private interests to protect the public good is the only method actually of achieving the end of government, which is justice.

The “preservation of liberty” requires “that each department should have a will of its own and consequently should be so constituted, that the members of each should have as little agency as possible in the appointment of the members of the others.” Rigorous adherence to this principle “would require that all the appointments for the supreme executive, legislative, and judiciary magistracies, should be drawn from the same found of authority, the people, through channels having no communication with one another.” (emphasis added). The federal judiciary, in particular, does not meet this test.  Publius says this deviation is justified because the mode of choosing judges ought to be the one best designed to produce the peculiar qualifications required of judges. He also presciently observes, as so many later presidents have learned to their dismay, that lifetime appointments for judges “must soon destroy all sense of dependence on the authority [i.,e., the President] conferring them.”

This passage reminds us that a republic, as defined in Federalist #39, “derives all its powers directly or indirectly from the great body of the people.” The judiciary, along with the President and the Senate (prior to the 17th Amendment’s substitution of popular election for election by state legislatures), draws its powers “indirectly” from the people because judges are nominated by the President and confirmed by the Senate. The judiciary and the President — who is actually elected not by the people, but by the Electoral College — are both somewhat removed from the people and in need of protection from the legislative branch.  Thus, if as to their salaries they were “not independent of the legislature in this particular, their independence in every other, would be merely nominal.”

What follows are some of the most insightful and widely quoted observations about the relationship between human nature and government.  With so much packed into one paragraph, each thought deserves to be separated out for separate consideration.

  •        “the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department, the necessary constitutional means, and personal motives, to resist encroachments of the others.:
  •        “The provision for defence must in this, as in all other cases, be made commensurate to the danger of attack.”
  •        “Ambition must be made to counteract ambition.”
  •         “The interest of the man, must be connected with the constitutional rights of the place.”
  •        “It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature?”
  •         “If men were angels, no government would be necessary.  If angels were to govern men, neither external nor internal controls on government would be necessary.”
  •         “In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.”

The notion that, at its core, the Constitution is a structure to control the self-interested tendencies of both the people and those in government may be a new idea for many Americans.  To those who think that the citizenry and government require no restraint other than popular elections, Publius responds that “experience has taught mankind the necessity of auxiliary precautions.” The Constitution reflects the “policy of supplying, by opposite and rival interests, the defect of better motives.”

Federalist #51 then reiterates and extends the argument of Federalist #47 and #48 concerning legislative dominance and the practical implementation of separation of powers. Besides strengthening the weaker branches, Federalist #51 makes clear the need to weaken the legislative branch. “The remedy for this inconveniency is, to divide the legislature into different branches; and to render them, by different modes of election, and different principles of action, as little connected with each other, as the nature of their common functions, and their common dependence on the society, will admit.” That explains the phenomenon that even when the same party controls both houses of Congress, the two bodies nevertheless do not cooperate very well.

It is often said in the media that the American people want the branches of the Federal government to work together.  The Constitution, however, guarantees conflict among the branches and between the federal and state governments in order to protect the liberty of the people.  Federalist #51 emphasizes the Constitution’s “double security” of separation of powers and federalism.

In the compound republic of America, the power surrendered by the people, is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments.  Hence a double security arises to the rights of the people.  The different governments will control each other; at the same time that each will be controlled by itself.     Federalist #51 then ties the constitutional structure back to the fundamental argument of Federalist #10. For it is necessary “not only to guard the society against the oppression of its rulers; but to guard the one part of society against the injustice of the other part.”  The way to avoid the “oppressions of factious majorities” is a federal system which encourages the multiplication of factions.  As a result, in the United States, “a coalition of a majority of the whole society could seldom take place upon any other principles, than those of justice and the general good.”  Thus, change is intended to be difficult as demonstrated by the fact that legislation cannot pass simply on the basis of “the majority” in Congress. A vote in the House of Representatives reflects one majority and a vote in the Senate represents a different majority. So, too, the President, who represents yet another majority, has the opportunity to sign or veto legislation.

The original Constitution operates on the basis of producing a legislative consensus through conflict and compromise.  This reflects the Framers’ view that structured conflict among the departments of government, rather than simple majorities, is more likely to produce a just consensus protective of minority interests. In such a system, there must be less pretext also, to provide for the security of the [the minor party], by introducing into the government a will not dependent on the [majority]; or, in other words, a will independent of the society itself.” (emphasis added).

This structure of “double-security” has been changed in important ways. The initial addition of the Bill of Rights did not actually change the structure, as Madison explained it would not do so when he introduced the amendments for adoption by the first Congress.  The Bill of Rights applied to the federal government, not to the states. The post-Civil War amendments did immediately change federalism by abolishing slavery and imposing important and just limits on the states. Nevertheless, federalism remained largely in tact as long as states continued to have a direct voice within the federal government by virtue of the election of U.S. senators by their state legislatures. See Federalist #62. The Seventeenth Amendment, however, changed that by requiring popular election of senators. Not that long thereafter, the Supreme Court became much more deferential to Congress and less so to the states.

One of the effects of the Senate no longer representing the residual sovereignty of the states, see Federalist #62, has been that the Court has had a relatively free hand – and indeed encouragement from some in Congress – to erode federalism. While there have been struggles among its members over federalism, the Court certainly has affected federalism through the manner in which, through the Fourteenth Amendment, it has applied the Bill of Rights to the states. In the course of doing so, the Supreme Court has arguably become “a will independent of the society itself” as it tends to prefer the minor party as against the states.  As a result of these constitutional amendments and judicial interpretations, the states no longer offer much security against the federal government.

For Publius, “the enlargement of the orbit” through federalism (see Federalist #9 and #10) made republicanism possible.  The Anti-Federalists, on the contrary, argued that such a large country was incompatible with a self-governing republic and would grow into imperialism. Despite “contrary opinions,” Publius concluded “that the larger the society, provided it lie within a practicable sphere, the more duly capable it will be of self-government.” As Publius predicted, self-government has flourished in the United States because “happily for the republican cause, the practicable sphere may be carried to a very great extent, by a judicious modification and mixture of the federal principle.” Publius’s prediction, however, became a reality because predicated on the premise of the double-security of separation of powers and federalism.

Professor John S. Baker is the Dale E. Bennett Professor of Law at Louisiana State University

 

July 13, 2010 – Federalist No. 55 – Janine Turner

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Wednesday, July 14th, 2010

I am still reading the fabulous Contest Entries!! I want to thank all of the students who have taken the time to blend creativity with the Constitution. They are all fantastic!! I am reading the wonderful essays, watching all of the cool videos, PSAs, and listening to the fabulous songs in preparation to sending them to our judges.

Thus, I will have to write my essays for Federalist Papers 54,  55 and 56 starting on Thursday night. I will catch up!!!

In the meantime, I have been pondering a realization:

With our national debt, I do believe we have found ourselves on the cusp of a new age of national sacrifice. These are the times when we are to bridge our thoughts, our motives, our missions with the evaluation: is this best for me or for my country?

Are we, a country of such plenty, able to delay our addiction to immediate gratifications? Without a new national sense of sacrifice –  we will have no life, liberty and pursuit of happiness. We will have no rights at all. They will disappear with our national entitlement mentality.

We, the “genius of the people” must prevail against this debt that will doom us. We will.

God Bless,

Janine Turner

 

July 16, 2010 – Federalist No. 58 – Objection that the Number of Members Will Not Be Augmented as the Progress of Population Demands Considered (Madison) – Guest Blogger: Brion McClanahan, Ph.D., author of The Politically Incorrect Guide to the Founding Fathers

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Friday, July 16th, 2010

James Madison wrote Federalist No. 58 to defend the construction of the House of Representatives, and in particular to refute the charge that “the number of members will not be augmented as the progress of population demands.”  This is an interesting issue and one that demands both a retrospective and contemporary analysis.

He began by stating that the objections against the House on the aforementioned basis “can only proceed from a partial view of the subject, or from a jealousy which discolors and disfigures every object which is beheld.”  Madison simply pointed to the fact that the Constitution explicitly stated that the House will be reapportioned every ten years following a mandatory federal census and that the initial number of representatives was to be for “the short term of three years.”  He illustrated that this design was based on several State constitutions, and the United States Constitution, in contrast to the State models, had more teeth.  The United States Constitution stipulated that each State must have at least one representative in the lower House and that no member would represent more than thirty thousand inhabitants.  States had gradually increased the numbers of representatives in their legislative bodies without such explicit language, and Madison argued that this would surely be the case under the United States Constitution.

Moreover, because the Congress was a bicameral legislature, it could check schemes by one house or the other to seize control of the government.  The Senate was, in Madison’s words, the “representation…of the States,” while the House was “a representation of the citizens.”  No house, he argued, would allow the other to compromise their specific constitutional authority, and no faction in either house would be able to garner enough support to destroy the other.   Of course, Madison was restating his beliefs in the “checks and balances” of the federal government under the Constitution.  And, if the Senate, controlled by the smaller States, tried to block reapportionment, the House could refuse to fund the government.  As Madison stated, “This power over the purse may, in fact, be regarded as the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people, for obtaining a redress of every grievance, and for carrying into effect every just and salutary measure.”

Of course, Madison based his arguments on the premise that the United States Constitution maintained a federal republic and did not create a “national” government.  The States still had equal representation in the Senate.  He was negating objections that were born from the federal convention in Philadelphia, namely that the “small States” would be swallowed up by the “large States.”  In many ways, “large State” and “small State” were code words for “national” and “State’s rights.”  The “small States” enjoyed equal representation under the Articles of Confederation in a federal republic.  The “large States” often believed they were under-represented and thwarted by “factions” of “small States;” thus, they wanted the greater control a “national” government offered.  Madison tepidly argued (he wanted a much more powerful central government at the Philadelphia Convention), as did many Federalists who initially supported the Constitution, that the Constitution did not change the nature of the United States government, only the structure.  As such, the House could add members without jeopardizing the equality of the States through the Senate.

Madison cut to the heart of the debate near the end of the essay.  Some members of both the Philadelphia Convention and the State ratifying conventions believed that the House contained too few members to be a truly representative body of the “people.”  A thirty thousand to one ratio did not allow for enough democratic control of the government.  Madison answered by stating, “the more numerous an assembly may be, of whatever characters composed, the greater is known to be the ascendency of passion over reason.  In the next place, the larger the number, the greater will be the proportion of members of limited information and weak capacities.”  Madison said that history had proven that large legislative bodies were typically hijacked by “a single orator, or an artful statesman….Ignorance will be the dupe of cunning, and passion the slave of sophistry and declamation.” He continued:

The people can never err more than in supposing that by multiplying their representatives beyond a certain limit, they strengthen the barrier against the government of a few. Experience will forever admonish them that, on the contrary, AFTER SECURING A SUFFICIENT NUMBER FOR THE PURPOSE OF SAFETY, OF LOCAL INFORMATION, AND OF DIFFUSIVE SYMPATHY WITH THE WHOLE SOCIETY, they will counteract their own views by every addition to their representatives. The countenance of the government may become more democratic, but the soul that animates it will be more oligarchic.

Madison’s arguments in Federalist No. 58 are contemporary for two reasons.  First, his contention that the Constitution did not destroy the federal republic is true when coupled with the Tenth Amendment to the Constitution and the original election of the Senate by State legislatures.  The Seventeenth Amendment, which allowed for the direct election of senators, destroyed one vestige of State control over the government.  In essence, both houses are now “national” legislative bodies, something Madison argued against in Federalist No. 58 (but supported in his Virginia Plan).  Second, Madison was correct when he asserted that large legislative bodies are unresponsive and doomed to failure.

But in 1790, the population of the United States stood at around four million, and the largest State, Virginia, had less than 800,000 people.  That is one legislative district today.  Twenty-six States have a greater population than the entire United States in 1790 with four States exceeding the 1840 population of the United States.  If the Framers believed that a ratio of thirty thousand to one was sufficient for a representative legislative body and that a population of four million constituted a “country,” then would not the States today—forty three of which have a population greater than one million and many which have the approximate thirty thousand to one ratio in the original Constitution—be better handling the majority of legislative issues?  The Founders would think so.

Brion McClanahan, Ph.D., is the author of The Politically Incorrect Guide to the Founding Fathers. He teaches history at Chattahoochee Valley Community College in Phenix City, AL.

 

July 19, 2010 – Federalist No. 59 – Janine Turner

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Tuesday, July 20th, 2010

Howdy from Texas! Well, I am back at the essay desk after an intense week of having the great joy of reading so many essays! Cathy and I read through each one judiciously, as well as the poems. We also had fun listening to the fabulous songs, watching the PSAs, short films and looking through the artwork. However, it was a time consuming, intensive work and just today are the works off to the judges! Thus, there were absolutely not enough hours in the day to peruse all of the generous entries and write essays!

Wonderful results. We thank each and every one of you who helped spread the word. Cathy and I are presently working on our next phase, which is the Constituting America Winners Behind the Scene Documentary and the Celebration for the winners in Philadelphia – an exciting program, interviews with the press, tours, etc. More to come!

Regarding Federalist Paper No. 59, I find that I am still confused over the “places, times and manners” of then and now – other than the fact that the senate was changed all together with the 17th Amendment.

What is obvious, as our distinguished Constitutional Scholar, Professor Kyle Scott, mentioned today, is the necessity and spirit of debate and a wise, well- informed premise. Hence, the reason for our foundation!
I concur wholeheartedly.

To quote Professor Scott, the need for Americans to, “take our cue from the founding generation—and not just Publius—but all of those who took it upon themselves to embark on a high-minded political debate that touched upon perennial questions of political significance,” is essential now. Now are the times that warrant the awareness, dedication and perseverance of citizens that reflect the deep love of liberty and country.

A paragraph that caught my eye in Alexander Hamilton’s Federalist Paper No. 59 is:

“It ought never to be forgotten, that a firm union of this country, under an efficient government, will probably be an increasing object of jealousy to more than one nation of Europe; and that enterprise to subvert it will sometimes originate in the intrigues of foreign powers, and will seldom fail to be patronized and abetted by some of them.”

Could this be more relevant to today?

The antidote to the “intrigues of foreign powers” is a government with a firm resolve to be vigilant and quick against these sly insurgencies of malice. As mentioned in an earlier Federalist Paper, “The enemy is in the field.” This is true whether it be as obvious as a terror attack or as insidious as the over zealousness of “political correctness” that paralyzes common sense.

God Bless,

Janine Turner

 

July 19, 2010 – Federalist No. 59 – Cathy Gillespie

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Monday, July 19th, 2010

Hello from Mt. Vernon Virginia! As Janine mentioned in her essay last night, we have been very busy over the past few days reading essays and poems, viewing short films and public service announcements, listening to songs, and looking at artwork, all submitted by a diverse group of young people across the country, with theme of how the Constitution is relevant to them today!

The good news is that we received an overwhelming response for our first “We The People 9.17 Contest!”   The entries have been inspiring! The contest entrants all worked hard and put forth their very best efforts and creativity!

The bad news is that there are only so many hours in a day, and I have discovered that every now and then, I actually need to sleep!   I have missed writing essays on Federalist Papers for a few days, but have been greatly encouraged by the knowledge of, respect for, and dedication to the United States Constitution by the young people who entered the contest.

Stay tuned for updates on the “We The People 9.17 Contest,” including the announcement of our distinguished panel of judges, and September 17 activities in Philadelphia where we will reveal the contest winners!

Federalist No. 59 discusses the advantages of the federal government regulating its elections.  As someone who has worked in federal campaigns, I believe it makes sense to have uniform federal election laws, and the only way to achieve uniformity, is to regulate these elections federally.

Through a series of legislative acts, beginning in 1867 when Congress passed a law prohibiting officers from soliciting political contributions from Navy Yard workers, Congress has passed laws to require public disclosure of federal campaign contributions, set limits on individual contributions to federal campaigns, prohibit certain sources of campaign donations,  restrict certain types of federal campaign expenditures, and in certain cases, limit federal campaign expenditures if public financing is accepted.  Because of abuses that occurred during the Watergate era of our country, the Federal Election Commission (FEC) was established in 1975 as an independent agency, with civil enforcement jurisdiction, authority to write regulations, monitor compliance, and serve as a centralized source of information about federal elections, federal campaign committees, and federal campaign donors.

If you have never taken a few minutes to explore the Federal Election Commission website: www.fec.gov, I highly recommend it.  You will find it fascinating!  With a few clicks (“Campaign Finance Reports and Data” on left sidebar, and then “Search the Disclosure Database”) you can search Federal Campaign Contribution Data in a variety of ways.   You can also read about the latest campaign finance laws and regulations and a history of the FEC.

Like all other congressional powers, our founding fathers devised checks on Congress’s regulation of Federal elections.  One check, the States’ power to appoint U.S. Senators, was removed with the adoption of the 17th Amendment.  This was an important structural check, noted by Hamilton in Federalist No. 59 as “that absolute safeguard which they (States) will enjoy under this provision.”

While the States have lost their power to have a voice in Congress’s power to regulate federal elections, the judicial branch is still actively engaged.  The Supreme Court’s recent decision in Citizens United vs. the Federal Electio Commission (holding that the First Amendment prohibits restrictions on corporate financing of independent advertising in federal election campaigns) is one example.

Of course the most important check is our vote.  As Janine Turner stated in her Fox News Op-Ed, Your Vote is Your Voice . Ues it!  Research how your member of Congress votes on Federal Election Law issues.  Do you agree or disagree? Let your vote be your voice on November 2, 2010!

 

July 20, 2010 – Federalist No. 60 – Janine Turner

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Tuesday, July 20th, 2010

Howdy from mighty hot Texas! I want to thank Mr. Best for joining us today and for his insightful essay!

Federalist Paper No. 60 once again reiterates the importance of checks and balances and the separation of power. If only all Americans were required to read the United States Constitution and the Federalist Papers. How timely they are to our current trials and tribulations and how full of wisdom are their pages.

How can anyone state that the United States Constitution is irrelevant? It is my summation that one can only make such a statement if they lack the education on its principles, power and profundity. Have they read it? The United States Constitution and the corresponding Federalist Papers offer the wake up call that we American citizens need.

Perhaps there should be a prerequisite that all members of Congress, Presidents, Vice-Presidents, etc. take a “People’s Representative” test on the principles of the Constitution. Some representatives have a clear, concise understanding of the Constitution; some do not. Thus, before our representatives  are allowed to take the oath that they are to, “Preserve, Protect and Defend the Constitution of the United States” should they not understand it?  Isn’t this common sense?

This would be similar to a drivers test. One must take a driver’s test, written and literal, before one gets a driver’s license. Should not our elected officials, who are going to represent Americans and uphold the basis, the foundation of our country understand, truly understand, the “handbook?” Should we not ask this of them? Would we put our children in a car with a driver who did not know how to drive? We are talking about the future of our country. We are talking about our children’s future. An oath to protect the Constitution rings hollow if the oath is based on ignorance.

The 17th Amendment is a serious flaw in the balance of power. Why would the American people allow such a thing to happen? Interestingly, the only state that did NOT ratify the 17th Amendment was Utah.

Alexander Hamilton states in Federalist Paper No. 60:

“The collective sense of the state legislatures, can never be influenced by extraneous circumstances of that sort: a consideration which alone ought to satisfy us, that the discrimination apprehended would never be attempted. For what inducement could the senate have to concur in a preference in which itself would not be included?”

He also states:

“As long as this interest prevails in most of that state legislatures, so long it must maintain a correspondent superiority in the national senate, which will generally be a faithful copy of the majorities of those assemblies.”

The states lost their power with the 17th Amendment. The people lost the balance of power necessary to maintain a republic as our founding fathers intended it.

Yet, the genius of the people will still prevail if they base their genius on the founding principles of our country. A learned people will rise to resuscitate their country with a breadth of spirit and passion that wisdom warrants.

Alexander Hamilton in Federalist Paper No. 60, states the call to action,

“Would they not fear that citizens not less tenacious than conscious of their rights, would flock from the remotest extremes of their respective states to the places of election, to overthrow their tyrants, and to substitute men who would be disposed to avenge the violated majesty of the people.”

The majesty of the people. The genius of the people.

Our founding fathers believed in us.

We the people.

Spread the word. Teach your children. Tell your family. Call your friends.

We are the roots of the Live Oak tree. The government represents the branches. The government need not feed us. We nourish the government.

God Bless,

Janine Turner

 

July 22, 2010 – Federalist No. 62 – Cathy Gillespie

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Friday, July 23rd, 2010

In Federalist No. 62 Publius explains that the Senate was intended to be the more deliberative body.  It was designed to be very different from the U.S. House.  Senators must be older, age 30 instead of the required age 25 for the House; must have been citizens longer, nine years required for the Senate, while only seven for the House; and Senators were to be appointed by State Legislatures (until the ratification of the 17th Amendment providing for direct election of Senators).  Senators’ terms of office are six years, while U.S. House members serve for two years.

These differences were meant to slow the legislative process, to provide for a “cooling off” period, from the passions of the U.S. House.  There is a famous, often quoted story, of Thomas Jefferson (who was in France during the Constitutional Convention) returning to the U.S. and asking Washington why the delegates had created a Senate.  In Washington and Jefferson’s day, people often poured their hot coffee into their saucer before drinking it, to cool it.  Washington observed Jefferson doing this, and asked “Why did you pour that coffee into your sauce?” When Jefferson replied the obvious, “to cool it,” Washington answered, “Even so, we pour legislation into the Senatorial Saucer to cool it.”

The Senate’s famous tactic of the filibuster is another longstanding tradition meant to slow the legislative process. The  U.S. Senate website notes that until the cloture rule was adopted in 1917, there was no way to stop extended debates except by “unanimous consent, compromise, or exhaustion.”

It is hard to read Federalist No. 62 and not be reminded of the healthcare bill that recently became law.  Many of the founders’ words of warning found in this essay could have easily been written just a few months ago about this legislation which was hurried through the Congress, without the thorough vetting or deliberation our Founders intended:

“The necessity of a senate is not less indicated by the propensity of all single and numerous assemblies to yield to the impulse of sudden and violent passions, and to be seduced by factious leaders into intemperate and pernicious resolutions.”

“It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is to-day, can guess what it will be to-morrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?”

One might wonder why the Senate did not act as the Founders’ had intended, as a brake on this rush to pass a healthcare bill that many Members of Congress did not have time to read?  The fact that State Legislatures no longer appoint U.S. Senators may have certainly had an impact, as well as the general partisanship that exists so much more in the Senate today, than in the past.

One thing is certain, Publius’s careful explanation of the Founders’ intentions in creating the Senate is as good as any political science textbook I have ever read. We should all work to get the Federalist Papers back into the schools and colleges!  Thomas Jefferson called the Federalist, “The best commentary on the principles of government which has ever been written.”  Federalist No. 62 certainly lives up to that billing!

On to Federalist No. 63!

Good night and God Bless,

Cathy Gillespie

 

July 23, 2010 – Federalist No. 63 – Janine Turner

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Saturday, July 24th, 2010

Howdy from Texas. I thank you for joining us today and I thank our friend, Professor Morrisey, for his wonderfully insightful essay.

Responsibility. Reasonable Responsibility. These were and are the qualities needed in the Senate. These were and are the qualities needed in the American public. We, the “genius of the people,” hold in our hands the direction of our country and we either fail, or do this well, depending on our level of responsibility.

Our representatives have responsibilities but so do we.

Educating ourselves on the Constitution and the engine of our government, seeking to understand the issues of the day and future, inspiring family, friends and children to be active patriots, being vocal and voting – these are the responsibilities of the people of a Republic.

I am encouraged because there appears to be an awakening and we, the citizens of America, are getting more involved in the affairs of our government – governing through our informed choices. This is rather vital as it is, “we the people,” who govern. The Congress is a reflection of our voice, our vote. We must take responsibility for it.

In America we are still are able to do just this – take responsibility for our government. We want to keep it that way.

Publius felt that it was important that the people’s passions were kept in check by the cool meditations of the Senate – a check. This was also a check against tyranny.

“Before such a revolution can be effected, the Senate, it is to be observed, must in the first place corrupt itself; must next corrupt the State legislatures; must then corrupt the House of Representatives; and must finally corrupt the people at large. It is evident that the Senate must be first corrupted before it can attempt an establishment of tyranny.”

James Madison talks about the vulnerabilities that Senates had faced throughout history – the vulnerability of being taken over by the people’s branch. One such example was from the British.

“The British history informs us that this hereditary assembly has not been able to defend itself against the continual encroachments of the House of Representatives; and that it no sooner lost the support of the monarch, than it was actually crushed by the weight of the popular branch.”

James Madison, ever ready with an historical reference or two, mentioned past Republican examples: Sparta, Rome and Cathage.

“As far as antiquity can instruct us on this subject, its examples support the reasoning which we have employed. In Sparta, the Ephori, the annual representatives of the people, were found an overmatch for the senate for life, continually gained on its authority and finally drew all power into their own hands. The Tribunes of Rome, who were the representatives of the people, prevailed, it is well known, in almost every contest with the senate for life, and in the end gained the most complete triumph over it. The fact is the more remarkable, as unanimity was required in every act of the Tribunes, even after their number was augmented to ten. It proves the irresistible force possessed by that branch of a free government, which has the people on its side. To these examples might be added that of Carthage, whose senate, according to the testimony of Polybius, instead of drawing all power into its vortex, had, at the commencement of the second Punic War, lost almost the whole of its original portion.”

All I want to know is – what happened in 1913? How was the 17th Amendment allowed to happen?

James Madison seemed to believe that if an usurpation ever were to happen, it would be restored by the people.

“We are warranted in believing, that if such a revolution should ever happen from causes which the foresight of man cannot guard against, the House of Representatives, with the people on their side, will at all times be able to bring back the Constitution to its primitive form and principles.”

James Madison is referring to the Senate becoming an aristocratic or independent body. Yet, is not the usurpation of the Senate by the 17th Amendment, (foregoing the states), not an equal violation of our founding father’s intended balance of powers? Is it not reminiscent of James Madison’s British, Sparta, Rome and Cathage examples?

Are we able to bring back the Constitution to its “primitive form and principles?”

Caution must be taken in regard to the new movement to do away with the Electoral College. There is a movement to do this through state legislatures. Only an informed and “responsible” people can prevent this from happening.

We must pay heed and take action so our posterity does not say, “What Happened in 2012 or 2014? How was the removal of the Electoral College allowed to happen?”

God Bless,

Janine Turner

 

July 26, 2010 – Federalist No. 64 – Cathy Gillespie

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Tuesday, July 27th, 2010

Federalist No. 64 begins a discussion of the powers of the Senate, specifically the power to ratify treaties.

It is interesting that the Senate and the House each possess distinct powers, reflective of the founders’ view of each institution’s strengths.  The U.S. House, closer to the people, controls the “purse,” while the U.S. Senate, designed to be the more stable and mature body, handles issues such as ratification of treaties, confirmation of certain executive branch officials and Supreme Court Justices, and serves as the court for impeachment trials.

The Senate’s power to ratify treaties the President makes is another example of the brilliant system of checks and balances designed by our founders.   The founders had great confidence in the ability and character of the Senators that would serve, based on the qualifications they had to meet in order to be appointed, and based on the fact that they would be appointed by the State Legislatures.

Publius states:

“This mode (appointment of Senators) has, in such cases, vastly the advantage of elections by the people in their collective capacity, where the activity of party zeal, taking the advantage of the supineness, the ignorance, and the hopes and fears of the unwary and interested, often places men in office by the votes of a small proportion of the electors.”

I wonder how often Federalist No. 64 was quoted during the debates on the 17th Amendment almost 100 years ago.

Publius goes on to extol the level of qualifications a Senate candidate must meet in order to be appointed, “men of whom the people have had time to form a judgment, and with respect to whom they 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.”

In this age of sound bites, with newspapers closing every day, there is less and less substantive reporting about candidates. It seems that in the modern age, it is easier than the Founding Fathers imagined for the people to be “deceived by those brilliant appearances of genius and patriotism, which like transient meteors, sometimes mislead as well as dazzle.”

This quote jumped out at me as well:

“In proportion as the United States assume a national form and a national character, so will the good of the whole be more and more an object of attention, and the government must be a weak one indeed, if it should forget that the good of the whole can only be promoted by advancing the good of each of the parts or members which compose the whole.”

When the federal government makes policy that puts undue burdens on states, it is not “advancing the good of each of the parts or members which compose the whole.

The Founders put every precaution and a carefully balanced structure in place to ensure members of the U.S. Senate were “men of talents and integrity.

However, as is often repeated on these blog pages, and by Publius, the final check is “the genius of the people.”

Get to know your U.S. Senators.  Which, if any, in your state are up for re-election? Research their voting record.  Go to their August town hall meetings.  Write them a letter.   Find out if your Senator is a man, or a woman, “of talents and integrity.”

Knowledge is power!

Good night and God Bless!

Cathy Gillespie

 

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

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Tuesday, July 27th, 2010

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

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

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

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

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

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

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

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

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

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

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

 

July 28, 2010 – Federalist No. 66 – Janine Turner

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Wednesday, July 28th, 2010

Howdy from Texas.

To those of us who worry that the basic structure of checks and balances within our government have been tampered with, such as with the 17th amendment and may continue to be tampered with in the future, such as with the rumblings of the removal of the electoral college by circumventing the Constitution and doing it through the State Legislatures, I quote Abigail Adams, my favorite foremother in a letter that she wrote to her young son:

“These are the times in which a genius would wish to live. It is not in the still calm of life, or in the repose of a pacific station, that great characters are formed. The habits of a vigorous mind are formed in contending with difficulties. Great necessities call out great virtues. When a mind is raised, and animated by the scenes that engage the heart, then those qualities which would otherwise remain dormant, wake into life and form the character of  the hero and the statesman.”

Inspire your children with this beautifully insightful passage about life, bravery, duty and patriotism. Share it with your friends and family.

I thank you for joining us. I thank Horace Cooper for his constant dedication and I thank Cathy Gillespie for being the best friend a person could ever dream of having and for being absolutely mesmerizingly devoted to Constituting America.

God Bless,

Janine Turner

 

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

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Thursday, July 29th, 2010

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

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

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

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

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

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

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

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

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

 

April 27, 2010 – The Amendments to the United States Constitution – Cathy Gillespie

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Great discussion today – loved seeing some new names blogging!   Remember to invite your friends to join the conversation – and share this with your children! Encourage them to enter our We The People 9.17 Contest – sign up online ASAP – entries due July 4!  Tell high school students we especially need short films, PSA’s and we are asking middle schoolers and high schoolers to compose cool songs!  Students can enter in teams of two for the songs, short films and PSA’s.  Sign up today!

Tackling the Bill of Rights, and the Amendments in one day was a big job!   As I read through the Amendments, I wondered about the efforts and battles that must have gone into the passage of each.  Reading through the Amendments is like a quick reading of the history of our country.  The Amendments reflect the times and current events in the eras in which they were passed.  We can be proud as Americans that MOST of the Amendments reflect the founding fathers’ principles. (see today’s and yesterday’s blog for lively discussion on some such as the 16th and 17th which many feel do not!)

All of the Amendments have fascinating stories that accompany their passage.  We all know of the stories and have seen photos of the women’s suffrage movement, for example. That battle spanned 50 years before Congress approved the 19th Amendment in 1919 and 3/4 of the States ratified it in 1920. But there is an interesting back story to the passage of the 19th Amendment that I love.  In August of 1920 Tennessee was the final state needed to achieve ratification of the 19th Amendment. The vote in the Tennessee Legislature came down to a young State Representative, Harry Burn, who represented a district bitterly divided on the issue, and who was facing re-election that fall.  Representative Burn had voted previously with the Anti-Amendment forces.  The vote was tied 48-48, and Harry was expected to vote with those opposing the Amendment again.  But Harry carried a letter from his mother in his breast pocket, admonishing him “Don’t forget to be a good boy,” and vote for the Amendment.  Harry surprised everyone by voting yes, and thus on August 18, 1920 Tennessee became the 36th State to ratify the 19th Amendment, and one young 24 year old man empowered millions of women in our country with his brave vote.

Earlier today Rich asked an interesting question about how the 17th Amendment came to be passed, so I pulled two books off my shelf that I recommend to anyone who is interested in the stories and history of the Amendments, the Bill of Rights, and the Constitution:

Seth Lipsky’s The Citizen’s Constitution: An Annotated Guide (2009) and the Heritage Foundation’s Guide to the Constitution, edited by Ed Meese, Mathew Spalding and David Forte (2005).

Upon reading about the 17th Amendment’s history in both of the above sources, I found it was passed in reaction to many State legislatures which were deadlocked on the issue of choosing a U.S. Senator, thus leaving their states without representation in the U.S. Senate. The 17th Amendment was passed in the name of enhancing Democracy, yet many feel it has been detrimental to protecting States’ rights, expanding the federal government’s reach.

To me, the most important Amendments to our Constitution were the 13th, 14th and 15th Amendments, which abolished slavery, established citizenship for former slaves, and prohibited restrictions on the right to vote based on color, race or previous condition of servitude.  President Lincoln received pressure from those who thought the 13th Amendment should be ratified only by the Northern States, in order to get it done quickly.  But Lincoln favored 3/4 ratification of the 13th Amendment by all the States, so the Amendment’s legitimacy could not be challenged.  He also believed the ratification process in the Southern States was important to Reconstruction and healing.  Regarding the 14th Amendment, Seth Lipsky writes, “Were the Amendments musical compositions, the fourteenth would be the grand symphony in four movements, full of exciting themes, varied movements, and clashing symbols….” Indeed the 14th did much more than overturn the Dred Scott decision and extend citizenship to former slaves, it contains the State Action, Privileges or Immunities, Due Process and Equal Protection Clauses, as well as Section Two, Apportionment of Representatives. The 15th Amendment, the last of the Amendments dealing with Reconstruction, prohibited voting discrimination for former slaves, and any voting discrimination based on race and color.  These three Amendments set the stage for the healing of our country.

It is another testament to the beauty of our Constitution that the Amendments read like a short hand version of the history of the United States.  It is all there, from the the 11th Amendment stemming from States being held accountable for their Revolutionary War Debts, to the 27th Amendment restricting congressional pay raises from taking effect until after an election. Interestingly the 27th Amendment was first proposed in 1789 and finally ratifed in 1992!

What will our next Amendment be?   Let us pray it will reflect the founding fathers’ principles as so many of our great Amendments have.  The only thing that is certain, though is that fascinating stories and struggles will accompany its passage, and it will add to the historical narrative of our country which is embodied in the United States Constitution.

Posted in Constitutional Essays by Cathy, The Amendments to the United States Constitution | 7 Comments »

7 Responses to “April 272010 – the Amendments to the United States Constitution – Cathy Gillespie

  1. Susan says:

    We were trying to place the amendments in the context of history by guessing what was going on at the time they were enacted without peeking at the date. Amazingly, we were pretty close.

  2. Mary Lou Leddy says:

    I want to thank bothCathy and Janine for their blogs on the amendments today. As I have never studied theConstitution, Bill of Rights and the amendments in great detail before ; I must admit it can be very challenging to understand; but your blogs as well as the essays of the guest bloggers have made some things much clearer. Thank you again. I look forward to continuing this great study

  3. Pam says:

    I have been trying to get an answer to this question for about a month. In regards to illegal aliens, George Wills wrote an article stating that our policy of granting citizenship to children born in this country to illegal aliens is a misapplication of the 14th Amendment. That it does not apply to illegal immigrants, because at the time it was written, there were no restrictions on immigration.

    As far as I know, we are the only country that has this policy. Right now (to quote George) the best thing a poor person of any country can do for their children is to have them here. I think that changing our policy in regards to children of illegals would go a long way to stop the flood. Any comments?

  4. Susan Craig says:

    My understanding of the whys and wherefores of the 14th was to clarify the citizenship status of the newly emancipated slaves after the Civil War and its intention was never for transient immigrants who wish to anchor themselves here with all the privileges but not necessarily the duties.

  5. Sandra Rodas says:

    I realize that to keep with the 90 day format, it was necessary to have all the amendments be covered in one day, but it sure would be nice to look at each in a little more depth. Maybe when the 90 day challenge is over, we could revisit them one at a time on the blog.

  6. Martin says:

    With regard to the 14th Amendment. Those who would reinvent the Constitution as a document of positive rights versus a document of negative rights have sought to contort the “privileges and immunities” clause to meet their ends.

    Basically, the Constitution is written as a set of guarantees limiting what government actually has the power to do and in fact, limiting what it can do to it’s citizenry. There is a movement under way to redefine government in terms of what it must do for its people.

    The Slaughter supreme court decisions (right after the Civil War) have defined this narrowly to apply to the states, guaranteeing that the federal government supersedes state governments only in the realm of guaranteed protections specified by the Bill of Rights.

    The folks who promulgate the concept of the Constitution as a “living” document want to overturn this precedent so that more “rights” can be forced down over the objections of the states. These new “rights” would be things like – housing, guaranteed employment, health care, and guaranteed access to the political process. By defining them as obligations or entitlements, the government would have to take steps to ensure that they are fulfilled. This would necessarily entail funding and enforcement.

    The movement doing this is called the Constitution 2020 movement.

    Hillsdale College recently produced a paper documenting their efforts. I’ve written a synopsis at whatwhouldthefoundersthink.com, where I’ve included links to this paper as well links to some of this groups writings.

  7. Kirk John Larson says:

    Greetings and Salutations,

    I wish to address certain issues. The 17th Amendment and the 2020 Movement.

    Cathy pointed out that some have argued that the 17th Amendment hurt States rights, and it did. In passing that amendment, State Governments no longer have true representation in Washington. As a result, the Federal government has infringed upon States issues by mandating how the States spends its tax revenues and what laws to pass lest the Federal government would suspend funding as a form of punishment over the states. This practice works to diminish the role and need for State Governments at all. This has been the plan by progressives since 1913. More over, by stripping the State Governments of authority, the Public role in governance and more over the publics ability to self govern is also eroded.

    As for the Constitution 2020 movement; this effort to impose ‘new rights’ is not to say our rights have been lost or confused but to say that the US Government is the sole granter of “Rights.” This is a secular push toward a more socialized society where in the Government defines and prescribes where you live, how you live, and whether or not you live.

    Housing is a replaceable commodity, (Just ask any tornado.) Employment is a personal choice and on occasion deniable due to the lack of employers. Ultimately, the “Right to Employment” is to destroy the Entrepreneurial Spirit of America. Health Care is a personal responsibility. The effort hear is ultimately establish euthanasia as a legal recourse. Then there is guaranteed access to political process, which is an intent to eradicate responsibility. Today, under the law, criminal conduct suspends your rights to vote or participate in the political process such as serving as a representative in congress. (either house) The idea the progressives have here is Americans should be free from responsibility and consequences for their actions. This is intended to bring more freedom but will actually encourage chaos. As a result, the very idea actually produces the opposite affect as the public cannot be trusted to conduct themselves responsibly, so totalitarian rules must be imposed. The two step process bring greater freedom from responsibility and consequences is to eliminate freedom altogether.

    The left will argue to the contrary but the truth is; the absence of responsibility produces chaos and public endangerment.
    Socialism has failed time and again. It will always fail because it dehumanizes the people into little more than cattle to be processed.