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How The Federalists Viewed Human Nature And Its Impact on The Resulting Government System In The United States of America (Part 2) – Guest Essayist: Amy Rofail

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The balance to solve the problems inherent in past democracies are addressed in the Federalist Papers. One topic that takes precedent is the idea of popular sovereignty and its dangers that can result in the tyranny of the majority. Whereas most Founders would agree that man is rational and capable of solving problems through reason, and that the will of the majority may be correct, this will is quite fallible. The recognition of this aspect of human nature lays the foundation upon which the Constitutionalists will devise the mechanisms and safeguards within government to allow for popular sovereignty to rule, but tyranny of the majority to fail.

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How The Federalists Viewed Human Nature And Its Impact on The Resulting Government System In The United States of America (Part 1) – Guest Essayist: Amy Rofail

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The founding fathers, particularly the writers of the Federalist Papers, were well versed in the classics, Greek literature, historical records of successes and failures of governments, and the political theorists of their era. The Founders’ views of human nature are the basis upon which they created a democratic republic such as they did in America. This paper will examine elements of the how the Founders’ viewed human nature, and how that view influenced the resulting mechanisms placed within the Constitutional government of the United States. This examination will focus on James Madison, Alexander Hamilton, Federalist Papers Numbers 6, 10, and 51, and other writings of Madison. In addition, the theories and writings of the era that influenced both Madison and other founding members of the federal government will be reviewed.

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Federalist No. 10

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The Same Subject Continued: The Union as a Safeguard Against Domestic Faction and Insurrection
From the New York Packet.
Friday, November 23, 1787.

Author: James Madison

To the People of the State of New York:

AMONG the numerous advantages promised by a well-constructed Union, none deserves to be more accurately developed than its tendency to break and control the violence of faction. The friend of popular governments never finds himself so much alarmed for their character and fate, as when he contemplates their propensity to this dangerous vice. He will not fail, therefore, to set a due value on any plan which, without violating the principles to which he is attached, provides a proper cure for it. The instability, injustice, and confusion introduced into the public councils, have, in truth, been the mortal diseases under which popular governments have everywhere perished; as they continue to be the favorite and fruitful topics from which the adversaries to liberty derive their most specious declamations. The valuable improvements made by the American constitutions on the popular models, both ancient and modern, cannot certainly be too much admired; but it would be an unwarrantable partiality, to contend that they have as effectually obviated the danger on this side, as was wished and expected. Complaints are everywhere heard from our most considerate and virtuous citizens, equally the friends of public and private faith, and of public and personal liberty, that our governments are too unstable, that the public good is disregarded in the conflicts of rival parties, and that measures are too often decided, not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority. However anxiously we may wish that these complaints had no foundation, the evidence, of known facts will not permit us to deny that they are in some degree true. It will be found, indeed, on a candid review of our situation, that some of the distresses under which we labor have been erroneously charged on the operation of our governments; but it will be found, at the same time, that other causes will not alone account for many of our heaviest misfortunes; and, particularly, for that prevailing and increasing distrust of public engagements, and alarm for private rights, which are echoed from one end of the continent to the other. These must be chiefly, if not wholly, effects of the unsteadiness and injustice with which a factious spirit has tainted our public administrations.

By a faction, I understand a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adversed to the rights of other citizens, or to the permanent and aggregate interests of the community.

There are two methods of curing the mischiefs of faction: the one, by removing its causes; the other, by controlling its effects.

There are again two methods of removing the causes of faction: the one, by destroying the liberty which is essential to its existence; the other, by giving to every citizen the same opinions, the same passions, and the same interests.

It could never be more truly said than of the first remedy, that it was worse than the disease. Liberty is to faction what air is to fire, an aliment without which it instantly expires. But it could not be less folly to abolish liberty, which is essential to political life, because it nourishes faction, than it would be to wish the annihilation of air, which is essential to animal life, because it imparts to fire its destructive agency.

The second expedient is as impracticable as the first would be unwise. As long as the reason of man continues fallible, and he is at liberty to exercise it, different opinions will be formed. As long as the connection subsists between his reason and his self-love, his opinions and his passions will have a reciprocal influence on each other; and the former will be objects to which the latter will attach themselves. The diversity in the faculties of men, from which the rights of property originate, is not less an insuperable obstacle to a uniformity of interests. The protection of these faculties is the first object of government. From the protection of different and unequal faculties of acquiring property, the possession of different degrees and kinds of property immediately results; and from the influence of these on the sentiments and views of the respective proprietors, ensues a division of the society into different interests and parties.

The latent causes of faction are thus sown in the nature of man; and we see them everywhere brought into different degrees of activity, according to the different circumstances of civil society. A zeal for different opinions concerning religion, concerning government, and many other points, as well of speculation as of practice; an attachment to different leaders ambitiously contending for pre-eminence and power; or to persons of other descriptions whose fortunes have been interesting to the human passions, have, in turn, divided mankind into parties, inflamed them with mutual animosity, and rendered them much more disposed to vex and oppress each other than to co-operate for their common good. So strong is this propensity of mankind to fall into mutual animosities, that where no substantial occasion presents itself, the most frivolous and fanciful distinctions have been sufficient to kindle their unfriendly passions and excite their most violent conflicts. But the most common and durable source of factions has been the various and unequal distribution of property. Those who hold and those who are without property have ever formed distinct interests in society. Those who are creditors, and those who are debtors, fall under a like discrimination. A landed interest, a manufacturing interest, a mercantile interest, a moneyed interest, with many lesser interests, grow up of necessity in civilized nations, and divide them into different classes, actuated by different sentiments and views. The regulation of these various and interfering interests forms the principal task of modern legislation, and involves the spirit of party and faction in the necessary and ordinary operations of the government.

No man is allowed to be a judge in his own cause, because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity. With equal, nay with greater reason, a body of men are unfit to be both judges and parties at the same time; yet what are many of the most important acts of legislation, but so many judicial determinations, not indeed concerning the rights of single persons, but concerning the rights of large bodies of citizens? And what are the different classes of legislators but advocates and parties to the causes which they determine? Is a law proposed concerning private debts? It is a question to which the creditors are parties on one side and the debtors on the other. Justice ought to hold the balance between them. Yet the parties are, and must be, themselves the judges; and the most numerous party, or, in other words, the most powerful faction must be expected to prevail. Shall domestic manufactures be encouraged, and in what degree, by restrictions on foreign manufactures? are questions which would be differently decided by the landed and the manufacturing classes, and probably by neither with a sole regard to justice and the public good. The apportionment of taxes on the various descriptions of property is an act which seems to require the most exact impartiality; yet there is, perhaps, no legislative act in which greater opportunity and temptation are given to a predominant party to trample on the rules of justice. Every shilling with which they overburden the inferior number, is a shilling saved to their own pockets.

It is in vain to say that enlightened statesmen will be able to adjust these clashing interests, and render them all subservient to the public good. Enlightened statesmen will not always be at the helm. Nor, in many cases, can such an adjustment be made at all without taking into view indirect and remote considerations, which will rarely prevail over the immediate interest which one party may find in disregarding the rights of another or the good of the whole.

The inference to which we are brought is, that the CAUSES of faction cannot be removed, and that relief is only to be sought in the means of controlling its EFFECTS.

If a faction consists of less than a majority, relief is supplied by the republican principle, which enables the majority to defeat its sinister views by regular vote. It may clog the administration, it may convulse the society; but it will be unable to execute and mask its violence under the forms of the Constitution. When a majority is included in a faction, the form of popular government, on the other hand, enables it to sacrifice to its ruling passion or interest both the public good and the rights of other citizens. To secure the public good and private rights against the danger of such a faction, and at the same time to preserve the spirit and the form of popular government, is then the great object to which our inquiries are directed. Let me add that it is the great desideratum by which this form of government can be rescued from the opprobrium under which it has so long labored, and be recommended to the esteem and adoption of mankind.

By what means is this object attainable? Evidently by one of two only. Either the existence of the same passion or interest in a majority at the same time must be prevented, or the majority, having such coexistent passion or interest, must be rendered, by their number and local situation, unable to concert and carry into effect schemes of oppression. If the impulse and the opportunity be suffered to coincide, we well know that neither moral nor religious motives can be relied on as an adequate control. They are not found to be such on the injustice and violence of individuals, and lose their efficacy in proportion to the number combined together, that is, in proportion as their efficacy becomes needful.

From this view of the subject it may be concluded that a pure democracy, by which I mean a society consisting of a small number of citizens, who assemble and administer the government in person, can admit of no cure for the mischiefs of faction. A common passion or interest will, in almost every case, be felt by a majority of the whole; a communication and concert result from the form of government itself; and there is nothing to check the inducements to sacrifice the weaker party or an obnoxious individual. Hence it is that such democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property; and have in general been as short in their lives as they have been violent in their deaths. Theoretic politicians, who have patronized this species of government, have erroneously supposed that by reducing mankind to a perfect equality in their political rights, they would, at the same time, be perfectly equalized and assimilated in their possessions, their opinions, and their passions.

A republic, by which I mean a government in which the scheme of representation takes place, opens a different prospect, and promises the cure for which we are seeking. Let us examine the points in which it varies from pure democracy, and we shall comprehend both the nature of the cure and the efficacy which it must derive from the Union.

The two great points of difference between a democracy and a republic are: first, the delegation of the government, in the latter, to a small number of citizens elected by the rest; secondly, the greater number of citizens, and greater sphere of country, over which the latter may be extended.

The effect of the first difference is, on the one hand, to refine and enlarge the public views, by passing them through the medium of a chosen body of citizens, whose wisdom may best discern the true interest of their country, and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations. Under such a regulation, it may well happen that the public voice, pronounced by the representatives of the people, will be more consonant to the public good than if pronounced by the people themselves, convened for the purpose. On the other hand, the effect may be inverted. Men of factious tempers, of local prejudices, or of sinister designs, may, by intrigue, by corruption, or by other means, first obtain the suffrages, and then betray the interests, of the people. The question resulting is, whether small or extensive republics are more favorable to the election of proper guardians of the public weal; and it is clearly decided in favor of the latter by two obvious considerations:

In the first place, it is to be remarked that, however small the republic may be, the representatives must be raised to a certain number, in order to guard against the cabals of a few; and that, however large it may be, they must be limited to a certain number, in order to guard against the confusion of a multitude. Hence, the number of representatives in the two cases not being in proportion to that of the two constituents, and being proportionally greater in the small republic, it follows that, if the proportion of fit characters be not less in the large than in the small republic, the former will present a greater option, and consequently a greater probability of a fit choice.

In the next place, as each representative will be chosen by a greater number of citizens in the large than in the small republic, it will be more difficult for unworthy candidates to practice with success the vicious arts by which elections are too often carried; and the suffrages of the people being more free, will be more likely to centre in men who possess the most attractive merit and the most diffusive and established characters.

It must be confessed that in this, as in most other cases, there is a mean, on both sides of which inconveniences will be found to lie. By enlarging too much the number of electors, you render the representatives too little acquainted with all their local circumstances and lesser interests; as by reducing it too much, you render him unduly attached to these, and too little fit to comprehend and pursue great and national objects. The federal Constitution forms a happy combination in this respect; the great and aggregate interests being referred to the national, the local and particular to the State legislatures.

The other point of difference is, the greater number of citizens and extent of territory which may be brought within the compass of republican than of democratic government; and it is this circumstance principally which renders factious combinations less to be dreaded in the former than in the latter. The smaller the society, the fewer probably will be the distinct parties and interests composing it; the fewer the distinct parties and interests, the more frequently will a majority be found of the same party; and the smaller the number of individuals composing a majority, and the smaller the compass within which they are placed, the more easily will they concert and execute their plans of oppression. Extend the sphere, and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens; or if such a common motive exists, it will be more difficult for all who feel it to discover their own strength, and to act in unison with each other. Besides other impediments, it may be remarked that, where there is a consciousness of unjust or dishonorable purposes, communication is always checked by distrust in proportion to the number whose concurrence is necessary.

Hence, it clearly appears, that the same advantage which a republic has over a democracy, in controlling the effects of faction, is enjoyed by a large over a small republic,–is enjoyed by the Union over the States composing it. Does the advantage consist in the substitution of representatives whose enlightened views and virtuous sentiments render them superior to local prejudices and schemes of injustice? It will not be denied that the representation of the Union will be most likely to possess these requisite endowments. Does it consist in the greater security afforded by a greater variety of parties, against the event of any one party being able to outnumber and oppress the rest? In an equal degree does the increased variety of parties comprised within the Union, increase this security. Does it, in fine, consist in the greater obstacles opposed to the concert and accomplishment of the secret wishes of an unjust and interested majority? Here, again, the extent of the Union gives it the most palpable advantage.

The influence of factious leaders may kindle a flame within their particular States, but will be unable to spread a general conflagration through the other States. A religious sect may degenerate into a political faction in a part of the Confederacy; but the variety of sects dispersed over the entire face of it must secure the national councils against any danger from that source. A rage for paper money, for an abolition of debts, for an equal division of property, or for any other improper or wicked project, will be less apt to pervade the whole body of the Union than a particular member of it; in the same proportion as such a malady is more likely to taint a particular county or district, than an entire State.

In the extent and proper structure of the Union, therefore, we behold a republican remedy for the diseases most incident to republican government. And according to the degree of pleasure and pride we feel in being republicans, ought to be our zeal in cherishing the spirit and supporting the character of Federalists.

Wednesday, April 3, 2013 – Essay #33 – Vices of the Political System of the United States by James Madison – Guest Essayist: Kevin R. C. Gutzman, J.D., Ph.D., Professor and Director of Graduate Studies Department of History, Western Connecticut State University and Author, James Madison and the Making of America

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James Madison spent much of late 1786 and early 1787 at work on what one historian called his “research project.”  Having participated in helping bring about the interstate convention that was going to meet in Philadelphia in May 1787, he intended to apply both historical knowledge and practical experience to the task of shaping proposals he would make as a member of Virginia’s delegation to the convention.

To that end, he drafted a memorandum on the history of federal governments.  He also gathered his notes on problems in the American federal system under the Articles of Confederation into an eleven-point memorandum. Read more

May 11, 2012 – Essay #60 – Amendment XVI – Guest Essayist: James D. Best, author of Tempest at Dawn, a novel about the 1787 Constitutional Convention, and Principled Action, Lessons from the Origins of the American Republic

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Amendment XVI:

The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.

Reform or Revision?

The infamous XVI Amendment gave the national government the authority to tax income … from whatever source derived. Income tax has always been divisive. In the early twentieth century, the amendment was promoted with the phrase “soak the rich,” and the level of progressiveness in the tax codes has been contentious ever since. Many feel that it is only fair that those with more money should pay the lion’s share, while others think fairness means that every American should contribute at least something to the national coffers.

In Federalist 10, James Madison wrote, “The apportionment of taxes on the various descriptions of property is an act which seems to require the most exact impartiality; yet there is, perhaps, no legislative act in which greater opportunity and temptation are given to a predominant party to trample on the rules of justice.” For the hundred years that the XVI Amendment has been in place, exact impartiality has been a rarity.

There are many odious aspects of our current income tax. T. Coleman Andrews, commissioner of the IRS under Eisenhower said, “It opened up our homes, our papers and our effects to the prying eyes of government agents.” An IRS appeal is through tax courts without juries, and if a taxpayer loses, the individual must pay before suing the government. Congress relishes playing three-card Monte with the tax code by deftly moving taxes up, down and sideways, while slipping loopholes to favored constituents. Tax policy seldom has any relationship to economic growth, keeping markets free, or preserving personal liberty. For those of us who are recordkeeping impaired, the laws are a nightmare and a huge waste of valuable time. And last, we work and struggle to make ends meet, and instead of getting thanks for all the money we send to Washington, there’s always some politician trying to make us feel guilty because we didn’t send more.

Should the XVI Amendment be reformed or revised? Probably. Revision of the XVI Amendment could potentially fix many issues about the application of income tax, but it would not resolve our growing debt issues. The federal government spends about a quarter of our national production, much of it financed with debt that has climbed to unfathomable levels. Reforming or revising the XVI Amendment might squeeze the revenue side, but it won’t guarantee spending restraint. The government has no restrictions on borrowing or printing money.

Congress has shown that it won’t fix the tax code or spending. As we’ve witnessed since the Tax Reform Act of 1986, tax cuts and simplification only buy a short recess from offensive rates and burdensome regulations.

Without an ironclad restraint, government will continue to tax and spend recklessly. If permanent change is desired, it will require amending the Constitution. The real question is what kind of constitutional reform is needed. It’s possible we could have a public debate and resolve the fairness issue once and for all. For example, a flat tax would be good for the individual and boost economic growth, but most Americans have come to believe progressive rates equate to fairness. Another proposed reform would repeal the XVI Amendment in favor of a national sales tax—sometimes called the fair tax. Critics have pointed out that these reforms have their own problems, but even if they present an improvement, they seem unlikely to get out of Congress or be ratified by thirty-eight state legislatures.

If the goal is to make income tax fairer or trade it for a different tax, then a revision of the XVI Amendment could do the trick. However, if the goal is to collapse the deficit—and eventually the debt—then reform needs to address both the income and spending sides. This means that revision of the XVI Amendment should probably be done in conjunction with a Balanced Budget Amendment. A consolidated reform approach would provide the best chance of ratification and fixing our country’s finances. Alas, that would take leadership. Where is Alexander Hamilton when you need him?

James D. Best is the author of Tempest at Dawn, a novel about the 1787 Constitutional Convention, and Principled Action, Lessons from the Origins of the American Republic.

 

 

Monday, April 30, 2012 – Essay #51 – Amendment XIV, Section 1: Equal Protection Under the Law – Guest Essayist: Professor Joerg Knipprath, Professor of Law at Southwestern Law School

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http://vimeo.com/41276250

Amendment XIV, Section 1:

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

Supreme Court Justice Oliver Wendell Holmes once dismissively declared the equal protection clause to be the “usual last resort of constitutional arguments.” At the time, 1927 in the notorious case of Buck v. Bell, Holmes could not have foreseen the explosion in the use of the equal protection clause that would occur a generation later.

The Declaration of Independence had famously asserted the proposition, self-evident to the Founders, that “all Men are created equal.” But this was a metaphysical proposition in that there was to be no aristocracy by birthright, a moral one in that we are all (with allowance for the truly insane) equally imbued with free will, and a religious one in that we are all children of God. The Founders were hardly so naïve to believe that all people are physically, intellectually, and emotionally equal, never mind that they are alike. Aristotle had written in the Politics, “Democracy arises out of the notion that those who are equal in any respect are equal in all respects; because men are equally free, they claim to be absolutely equal.” Aristotle viewed this as a fatal flaw of democracy, a theme echoed in Madison’s Federalist 10. In a trenchant dissection of the instability of democracies, Madison sarcastically observed, “Theoretic politicians, who have patronized this species of government, have erroneously supposed that, by reducing mankind to a perfect equality in their political rights, they would, at the same time, be perfectly equalized and assimilated in their possessions, their opinions, and their passions.”

Moreover, the very real presence of slavery in the great majority of the states demonstrated the limitations of the concrete application of the Declaration’s sentiments. While Thomas Jefferson, agonizing over the institution of slavery from which he personally benefitted, might write, “I tremble for my country when I reflect that God is just,” it was also the case, as the historian Forrest McDonald observed, “Few of his countrymen trembled with him.”

In practice, then, both simple human differences as well as more profound human inequalities have to be taken into account in a successful social order. Regarding the former, the law routinely discriminates by drawing lines that target some in the community for unfavorable treatment. The tax code, for example, is a mass of discriminations. As to the latter, attempts to equalize conditions that arise from the human inequalities about which Madison wrote is a prescription for totalitarian government. That is the dark side of egalitarianism and exposes the tension between equality and liberty.

Moving from a manifesto for independence to a plan for governing the Union, the Framers did not imbed either a general principle of non-discrimination or one of equality of condition in the Constitution. There are only specific limited instantiations of non-discrimination, such as the protection offered under the privileges and immunities clause of Article IV to persons coming into a state from another and under the commerce clause to out-of-staters competing with local businesses.

There is, however, no equal protection clause. That had to await the adoption of the 14th Amendment. However, as was the case with the 13th and 15th Amendments, that provision had to do solely with race discrimination and, more directly, the conditions that resulted from institutionalized slavery based on the black man’s race. The 14th Amendment was the immediate product of concern over the constitutionality of the Civil Rights Act of 1866, a law passed under the 13th Amendment. That statute was an anti-discrimination law. Since it prohibited race discrimination in various matters and did not limit itself to slavery as such or apply only in former slave states, there were doubts about the ability of the 13th Amendment to support this law. To cure that defect, a movement for another constitutional amendment, the eventual 14th, arose in Congress under the auspices of the Joint Committee on Reconstruction and the leadership of Congressman John Bingham of Ohio and Senator Jacob Howard of Michigan.

The equal protection clause was only intended to insure formal equality before the law and only regarding race discrimination. That its reach did not extend further was made clear by the Supreme Court in 1872 in the Slaughterhouse Cases, in which a claim by butchers that a Louisiana law violated, among others, their right to equal protection under the 14th Amendment was rejected almost summarily. As Justice Samuel Miller declared, “We doubt very much whether any action of a State not directed by way of discrimination against the negroes as a class, or on account of their race, will ever be held to come within the purview of this provision.” In a companion case decided on the same day, Bradwell v. Illinois, a claim by a woman that the state’s refusal to allow women to practice law violated the 14th Amendment did not even produce an argument by her attorneys or a discussion by the Court of a violation of the equal protection clause. The singularly race-focused nature of the equal protection clause was reiterated by the Court of that era in the Civil Rights Cases and Plessy v. Ferguson.

Leaving aside a few odd cases involving unenumerated fundamental rights, it was not until the 1950s that the Supreme Court began to consider non-race-related equal protection claims, and it was not until Reed v. Reed in 1971 that a claim of unconstitutional sex discrimination was successful. In the last several decades, the Court has used the equal protection clause to strike down state laws that discriminate against various classes of aliens, illegitimate children, and homosexuals. Race, ethnicity, religion, national origin and (many) alienage classifications are considered constitutionally “suspect,” meaning that they are presumptively unconstitutional and subject to “strict judicial scrutiny.” Sex and illegitimacy are “quasi-suspect” classifications subject to “intermediate” scrutiny. In either case, the government must show greater need for such discrimination than would be required for ordinary discriminations by government, such as age, wealth, disability, or other classifications. This means effectively that racial and other such differences must not be formally recognized in laws.

The expansion of non-discrimination protection has made obsolete Justice Holmes’ comment about the futility of equal protection clause claims. The Constitution now protects more broadly against discrimination by government than was the case in the 1920s, and certainly than in the 1790s. Still, there is generally no obligation by government to eliminate inequalities that result from human nature and capabilities or from what might be called expansively the human condition. President Obama, speaking years ago at an academic gathering, bemoaned the Supreme Court’s failure to use the equal protection clause to equalize economic and social conditions of inequality, but the Court has generally avoided such judicial legislation. The only exceptions have been in matters related to access to courts, such as the right of an indigent defendant to a paid attorney.

Beyond those few cases, the justices have declined numerous invitations to turn the Constitution from one of rights against the community (a “negative” constitution) to one of rights from the community (a “positive” constitution). Human experience shows that the latter always becomes one of obligations to the community, as government grows and individual liberty shrinks. Certain justices would be happy to move in the direction of the European model to enact their ideal egalitarian world. Justice Ruth Ginsburg’s admonition to the Egyptians that they follow the South African constitution rather than the American in establishing their new system comes to mind. But the increasingly precarious economic status of the welfare state shows the wisdom of the Court in not amending the Constitution to remake the equal protection clause into a constitutional forge of egalitarianism.

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 21, 2011 – Article I, Section 08, Clause 02 of the United States Constitution – Guest Essayist: Joerg Knipprath, Professor of Law at Southwestern Law School

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Article 1, Section 8, Clause 2

2:  To borrow Money on the credit of the United States;

Article I, Section 8, clause 2, confers on Congress the power to borrow money on the credit of the United States.  Borrowing is simply a means of raising revenue. One can glimpse the importance and ubiquity of this tool of public finance by the fact that the framers placed it as the second power granted to the new Congress.  Right after the powers to tax and spend. Those powers, along with the coining of money and punishing counterfeiting, constitute the federal revenue powers.

Borrowing on the credit of the United States was of vital concern during the Founding Era.  The difficulty that the U.S. had to finance the Revolutionary War impressed men such as Alexander Hamilton and his mentor in financial matters, Robert Morris.  It was the eventual success of John Adams and others in convincing the Dutch bankers to loosen their purse strings that opened access for Americans to international financial markets and contributed much to independence. Hamilton’s experience is reflected in Federalist 30, where he explains the importance of public credit to finance emergencies such as wars, and the connection between taxes (and, more broadly, responsible fiscal policies) and creditworthiness.

After the war, the economic plight of the United States worsened.  The war debts of the states and the United States posed a long-term threat to the country’s economic health. That condition, many feared, would inevitably turn into a political threat to the republican systems in the states and to the Confederation.  The fiscal and monetary policies of the states exacerbated the situation, as, in the words of James Madison’s in Federalist 10, a “rage for paper money, for an abolition of debts, for an equal division of property [and] for other improper [and] wicked projects” set in.  During the debates on the Constitution, Rhode Island was often (and not always entirely fairly) set up as a paradigm of bad economic policies run amok.  That is what happens when a state declines to show up for the debate, as Rhode Island opted to do.

But the problem was national and systemic, with the country locked in an apparent long-term cycle, or perhaps a spiral, of economic woe.  One problem, in the eyes of many, was the absence of banks.  The British had strongly disabled the formation of banks in the colonies, correctly seeing them as potential threats to British dominance. During the war, the Confederation’s Superintendent of Finance, Robert Morris, at the instigation of Alexander Hamilton, obtained a charter for the Bank of North America, an American prototype private national bank loosely patterned after the Bank of England.  The charter was immediately suspect, since the Articles of Confederation did not allow Congress to charter banks or other corporations.  As a precaution, the Bank eventually also obtained a state charter from Pennsylvania, a step that soon confirmed to Hamilton and other nationalists the folly of state control over public finance. The legislature of Pennsylvania, taking the position that it could, with impunity, take away vested property rights confirmed by a predecessor legislature, revoked the charter in 1785.

Though these constitutional weaknesses and political currents eventually caused the Bank of North America to fail as a national bank, the pattern was set. Indeed, Morris and Hamilton in their arguments to the Confederation Congress developed the constitutional arguments in favor of implied national powers that Hamilton would repeat in his push for the Bank of the United States in 1791, arguments the Supreme Court adopted in its landmark decision in McCulloch v. Maryland in 1819.

In the same vein, the economic and political arguments in favor of (and against) the Bank of North America would resonate in the political debates over the Bank of the United States and its successor until Andrew Jackson’s veto of the re-charter of the Second Bank of the United States in 1832.  Those same arguments would be repeated in the debate over the establishment of the Federal Reserve system and continue today.

While the Federal Reserve remains controversial in many quarters, the original Hamiltonian program probably saved the Republic.  Through the complex system Hamilton advanced as Secretary of the Treasury, the infirmities of the public debts of the United States and the states were eliminated by guaranteeing creditors payment on their previously depreciated securities.  A crucial step to restore confidence was to have the United States assume the war debts of the states.  The debt repayment was financed in part through an excise tax on whiskey that, while unpopular in certain quarters, was generally supported by the public.  The Bank of the United States was the final piece in Hamilton’s mosaic and would serve as a depository for government funds.  The use of those funds as well as the profit from private loans to other (state-chartered) banks and to large commercial borrowers would provide a return on their investment to private investors and to the government.  The latter could use those profits to help repay the war debts and to furnish internal public infrastructure improvements (later reflected in Henry Clay’s “American system”).  More significantly for the stability of public credit and the money supply was that the Bank could control the terms of credit it extended to borrowers. By selecting the interest rates for loans and having the option to demand repayment of loans in specie, it could temper the enthusiasm that state banks otherwise might have to overextend themselves through the issuance of bills of credit (paper bank notes).

As a result, the U.S. almost overnight gained access to the Amsterdam financial markets and, hence, to the world. Foreign capital flowed into the United States to help develop manufactures and commerce and put the United States on the road to a modern economy and prosperity.  Hamilton was not naive.  Despite what some of the agrarian anti-Bank theorists, such as Virginia’s Senator John Taylor of Caroline (a man who considered Jefferson and Madison sell-outs of the republican cause), claimed, neither the Bank nor Hamilton was bent on destroying American liberty.  Hamilton feared a government-controlled bank, but thought that the private control of the bank would keep corrupt political forces at bay.  Similarly, public and private tendencies towards credit bubbles would be constrained by two things.  First, the interests of investors and directors in safety as well as profits would make them sufficiently conservative. Second, he proposed that repayment of long-term public debt be immediately secured through a commitment of designated revenue to pay interest and principal (“sinking fund”).  Hamilton insisted that the Latin root of credit, credere (“to believe”), reflected the true source of credit.  “States, like individuals, who observe their engagements, are respected and trusted: while the reverse is the fate of those, who pursue an opposite conduct.”  While the states and the Confederation had abdicated their responsibilities and the country had suffered accordingly, Hamilton believed that his program lessened those dangers.

In practice, regrettably, Hamilton’s cautious and balanced approach has been cast aside. The only measure today appears to be how much can be borrowed on the increasingly suspect credit of the United States, rated as it is on the perceived ability of Americans to pay and the country’s status as the still safer haven for international funds than are the bonds of other countries.  Debt is rolled over, not retired, as more debt is added.

I happened to come across a book written fewer than forty years ago. The author recounted in horror that the gross national debt (not the annual deficit) topped the stratospheric level of $450 billion.  Even more scandalous to him was the explosion of the national debt from roughly $40 billion in 1940. Those are the kinds of numbers that today sound like unattainable frugality as a measure even of annual deficit, never mind as a measure of gross national debt. Even adjusted for inflation and population growth, the cumulative effect of the borrowing binge reflected in today’s debt is staggering compared to that time not so long ago.

Today’s questionable fiscal and monetary policies are not novel, of course.  The Lincoln administration’s massive borrowing and its manipulation of the currency is one stark early example.  FDR’s unilateral cancellation of gold clauses in public bonds (upheld by the Supreme Court in a stunning exercise of sophistry in Perry v. U.S. in 1935) and his comparatively massive, for that time, expansion of the debt, is another. But even those actions arguably were more defensible than today’s deficit borrowing. There is no massive war; the economic recession is not of the same degree; the borrowing is used to fund entitlements, not infrastructure.  Worse, the deficit is not a matter of a few years, but, by now, of generations.  It is structural. Worst of all, there is a lack of seriousness and urgency on the part of the political branches.  As Hamilton feared, that foundation of sound credit, the “belief” and confidence of creditors, is unlikely to be maintained in the teeth of such profligacy.

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/ .

May 7, 2010 – Federalist No. 8 – The Consequences of Hostilities Between the States, From the New York Packet (Hamilton) – Guest Blogger: W. B. Allen, Dean and Professor Emeritus, Michigan State University

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Friday, May 7th, 2010

Federalist #8

The eighth essay presents a hypothetical case of a dis-United States. But it is the general argument that has been built that is germane to understanding the argument. Publius is aware of a “new politics” that has come to be, but Publius is no less aware that it will not produce perfect wisdom and virtue. That creates the moral and practical dilemma of defending the creation of a powerful government, one capable of “harmonizing and assimilating” diverse peoples and interests, while recognizing simultaneously that the government will not make people virtuous and wise. We wonder how to justify doing so, because we wonder whether there is any guarantee of a government’s goodness apart from the virtue and wisdom of its people.

The answers to all these questions, it seems to me, are conditioned on a single premise, namely that one refer to the consequences of the government and not its operations. Now, the chief consequence is peace where war would otherwise prevail. It is true that governments that are energetic – powerful governments – affect the characters of the people they govern. That is a necessary condition of energetic government, a fact that Publius makes clear. We may admit two facts, then – namely, that people will not be made virtuous and wise and, further, that government will nonetheless be driven by public opinion.

Publius calls it an idle theory or “utopian speculation” to imagine removing human weaknesses, but we still question, not whether theories of humans transformed into angels are correct but, rather, the reason for confiding all authority in society into the hands of imperfect human beings and ignoring all the other claims to rule that have existed in human history. There have been claims based on age; claims based on strength; claims based on reason, on wisdom, on piety. Why must we reject all those to place the entire society into the hands of what may be the foolish and the vicious, as Publius has done?

From this perspective even the principle of descent in a monarchy may seem intelligent. For, though from time to time an occasional stupid bastard will be born king, most of the time men get fairly decent, well-bred people (which in the absence of better guarantees is at least something to rely upon) and thus may hope for stability if not good government. The alternative seems to be to submit to rule by people that are not going to be improved by government and that might not govern well. Publius reserves the response to this dilemma to later essays discussing the operations of government. Still, he has raised the stakes very high in this argument, showing that, while the government will not itself make people virtuous and wise, it is nevertheless wise and virtuous to construct such a government.

The eighth essay allows Publius to demonstrate the propriety of such an undertaking in the hypothetical context of an America disunited. For, though no one knows how the experiment will work in the end, it is still possibly to speak at length about the opportunities afforded by modern principles (as he anticipates the elegant ninth essay!). He draws a firm distinction, noting that “the industrious habits of the people of the present day, absorbed in the pursuits of gain, and devoted to the improvements of agriculture and commerce are incompatible with the condition of a nation of soldiers…” Thus, the Americans will not have the old fashioned virtues, based on the martial spirit in small republics of ancient times.

But that observation serves only to augment the question, how does Publius deal with the problem of rendering a people suitable to rule in this new and modern context without guaranteeing their wisdom and virtue? That such reflections introduce the eventual and ultimate response to the question of domestic violence is of great significance. Essays nine and ten deliver the conclusion. But the end of the introduction in the eighth essay firmly establishes that what we desire to now is precisely how turning power over to the people (defending popular government, self-government) produces the promised prosperity and peace without changing human nature. One might almost think it to mean that human nature is no mean thing to begin with!

W. B. Allen

Dean and Professor Emeritus

Michigan State University

27 Responses to “May 72010 – Federalist No8 – The Consequences of Hostilities Between the States, From the New YorkPacket (Hamilton) – Guest BloggerW. BAllenDean and Professor EmeritusMichigan State University

  1. Susan Craig says:

    The worldview that Hamilton argues from is the fallen condition of man, this worldview has been warped into today where the self-esteem worldview insists that man is inherently good. This is sharply in contrast to all men have value in an inherently fallen condition.

  2. Carolyn Attaway says:

    In reading Paper #8, I could not help but notice that a lot of the arguments Hamilton made to convince his readers of the need for the states to have a Federal Government, can be used today as a defense against our war against terrorism.

    The following statement brought to mind the Patriot Act that was written into law on Oct. 26, 2001, shortly after the attack on New York. “Safety from external danger is the most powerful director of national conduct. Even the ardent love of liberty will, after a time, give way to its dictates. The violent destruction of life and property incident to war, the continual effort and alarm attendant on a state of continual danger, will compel nations the most attached to liberty to resort for repose and security to institutions which have a tendency to destroy their civil and political rights. To be more safe, they at length become willing to run the risk of being less free.”

    Many Americans did not oppose this legislation at the time of its creation because the attack on American soil created a great fear of possible repeat attacks and Americans were greatly concerned for their safety. Nine years later, more Americans find the Patriot Act outdated and an intrusion into their private lives.

    Today, I believe many are in the ‘Utopian speculations’ that we discussed in Paper #6.

    @Susan – I agree with you that today the overplayed importance of self-esteem has warped our society and has taken us from the mindset of “The needs of many outweigh the needs of one” to “The needs of one outweigh the needs of many”. The majority in this country are quickly being stripped of their rights to meet the rights of a few. Whoever thought the toy in a happy meal would put extra burdens on a parent and keep them from giving their children healthy food?

  3. Maggie says:

    “The violent destruction of life and property incident to war, the continual effort and alarm attendant on a state of continual danger, will compel nations the most attached to liberty to resort for repose and security to institutions which have a tendency to destroy their civil and political rights. To be more safe, they at length become willing to run the risk of being less free.”……ok…I find this just too eerily close to what we have been doing here in the U.S. Under the guise of “keeping us safe” the government has convinced us for far too long to keep handing them more and more of our liberties.

  4. Maggie says:

    Sorry for the partial repeat of Carolyn’s quote reference. My computer is running very slowly today and her blog post had not yet come through at the time I wrote mine. It just causes me to reiterate that she has a knack for writing exactly what I am thinking.

  5. This is Cathy Gillespie – that quote leapt off the page to me as well!

  6. Carolyn Attaway says:

    @Maggie – great minds think alike :)

    The part that really makes me sit up and take notice are the liberties that are being stripped domestically in the guise of “We know what is best for you”. And all these concerns come in the form of regulations and taxes. Is our government today going the way of the Stamp Act of 1765? And; will the American people follow Patrick Henry’s stance against it?

  7. Peter says:

    Professor Allen poses an excellent question: “How does Publius deal with the problem of rendering a people suitable to rule in this new and modern context without guaranteeing their wisdom and virtue?” This, it seems to me, is one of the most important and ongoing issues in the life of the nation. Can we, in fact, force people to be wise and virtuous in the name of preserving the construct of the nation? There are those who believe we must – and on both sides of the ideological divide. There are others who believe that people have the right to be wrong, to be stupid, to be unviruous. This is one of those places where, it seems to me, it is often hard to thread the needle of liberty.

  8. Susan Craig says:

    Freedom makes a huge requirement of every human being. With freedom comes responsibility. For the person who is unwilling to grow up, the person who does not want to carry is own weight, this is a frightening prospect.
    Eleanor Roosevelt
    Freedom is the sure possession of those alone who have the courage to defend it.
    Pericles
    Just a few thoughts on the value and price of freedom.

  9. Howdy, it’s Janine. I want to say to Carolyn, Maggie, Susan and Peter.. it’s great to have you guys blogging on our site everyday. Great comments! Thank you! I am learning so much.

  10. Carolyn Attaway says:

    Thank you Janine for putting this site together for all to learn and study our founding documents. I saw your interview on FOX and started with the site on Day 1. I cannot tell you how much I enjoy reading my assignment every night and then getting the opportunity to talk to everyone the next day about what we read. Your guestbloggers have been so informative, and very helpful in understanding what was written. I have learned so much already, and what amazes me most is how timeless our documents are; they could have been very easily written for today!

  11. Barb Zakszewski says:

    This is a Wonderful Website..I just read about it last night in Human Events, Conservative Spotlight, and checked it out. This is JUST what I have been looking for, as I have recently decided to study the REAL constitution. I’ve been reading, of all things, the Politically INcorrect guide to the Constitution and have been reading those parts of the Constitution as I’ve progressed. Your 90/90 project is GREAT!! I know I’m jumping in a little late, but intend to pick up at this point, May 7, and move forward. In order for us to return our Country to the Principles of the Founding Fathers, we have to know what those principles are, and the reasoning behind these principles. The Founders had differing points of view about what direction to take this country, Federalist v Nationalist, and many of the arguements made back then are being repeated now. I agree it is vitally important for our children to be taught the REAL history of the United States, not the Liberal, America is bad history that is being taught now. Thank you, Thank you!! for this wonderful site.

  12. Today was yet another stimulating reading. Your blog comments have been thought provoking as well. I thank you and I, also, once again, thank Professor W.BAllen for his astute interpretation. After reading both Federalist PaperNo8 and Professor Allen’s essay here is what I have gleaned:

    With the birth of the Republic of the United States came the birth of a new type of republic. Republics in the past all eventually lent themselves to the art of war, instead of the art of commerce and free enterprise, as its focus. Our newrepublic would be monitored and governed by the people instead of military figures.

    This was truly an enlightened and inspired experiment.
    Yet, safety would have to be secured in order to offer the opportunity of these pursuits and the art of war delineated. If the people did not feel safe, and if war were to spring from internal hostilities, then the focus would shift away from the remarkable aspects of American ingenuity to the colossal attentions war and/or petty skirmishes demanded.

    To quote Alexander Hamilton:
    “Even the ardent love of liberty will, after a time, give way to its dictates..”

    “To be more safe, they, at length, become willing to run the risk of being less free…”

    If war were to become the dictate then the executive branch would broaden and the legislative branch, the people’s branch, weaken.

    “They would, at the same time, be obliged to strengthen the executive arm of government; in doing which, their constituents would acquire a progressive direction towards monarchy. It is of the nature of war to increase the executive, at the expense of the legislative authority.”

    War was thus incompatible with the new industriousness of the American people:

    “The industrious habits of the people of the present day, absorbed in the pursuits of gain, and devoted to the improvements of agriculture and commerce, are incompatible with the condition of a nation of soldiers, which was the true condition of the people of those republics.”

    Once again our forefathers had the wisdom and wherewithal to prophesy the necessities for a free people to flourish – freedom from dictators, tyranny, war, conquests and internal squirmishes.

    Which begs the next big undertaking: replacing the dictator with the wisdom of the people. If the government were to heed upon the whims of the people then how does one educate and inspire the people? The checks and balances of the Constitution were thus both a check against the leaders and the people – a republic instead of a democracy.

    In this respect how have Americans fared? I would say on the broad scale, remarkably. I believe our forefathers would be mesmerized with the scope of growth, scientifically, industriously and humanitarianly. They would be in astate of awe. The experiment of liberty and union, though bruised along the way, has remained vital.

    Yet, a new generation and movement are upon us. Our founding fathers, I believe, would be a bit wary regarding the modern day wisdom of the people. There was such a hunger for education and inspiration in the blossoming days of the United States because the repression of such liberties had left a formidable and everlasting impression.

    Today, do we take for granted the freedoms that have made our country great? I believe that the lack of voting would be a disappointment to our forefathers, as would the seeming unawareness of the founding principles of our country.

    If we, as citizens, and our children, do not understand the dignified rights and principles we have then we, and our children, will not know when they are subtly taken away from us. The success of the progressive movement is a prime example.

    Thus, the reading and comprehension of the United States Constitution and the Federalist Papers are paramount. I, personally, feel blessed to be having this dialogue with our daily scholars, Cathy and all of you who blog. I thank you for your involvement. Spread the word! Let us all be educated citizens with a knowledge rooted in the thesis of our country so that we may then step forward, voice our opinions and make a difference as informed citizens.

    God Bless!!

    Janine Turner
    5.7.10

  13. Barb, It’s Janine. We are happy that you have joined us!

  14. Ron Meier says:

    It seems that this one quote has impacted more than one of us today: “To be more safe, they at length become willing to run the risk of being less free.” Obviously, what is happening in our country today makes us more sensitive to this quote than we might be if we were not living in the age of the progression of entitlements to the levels we see in the EU, with Greece being an example of what can happen if we allow what is happening in our country to progress to that extreme.

    A second quote that got my attention was this: “The desire to shed the characteristics of the “old world” was very strong in our founders, who were not far removed from living under those types of governments.” Today, we are far removed from those types of governments and many of our brothers and sisters seem to be wanting us to move in the direction that our founders wanted us to move away from. If more of us had a better knowledge of history, or a knowledge at all, and if more of us knew what we few who are going through this exercise are learning, perhaps we would see through the eyes of our founding fathers. Let us pray that, at the conclusion of this 90/90 exercise, we can see through those wise eyes as clearly as they did.

  15. Well said Ron! Thanks for joining our 90 in 90!

  16. Susan Craig says:

    Carolyn, I need to address your application of the Patriot act to the quote “To be more safe, they at length become willing to run the risk of being less free.” That is why every time a limiter is needed for safety we have put ‘sunsets’ into them when enacted. Habeus Corpus was suspended for a while during the Civil War. One of the things that brought down Woodrow Wilson was his abuse of free speech during WW I. FDR is still reviled for the restrictions placed on people of Japanese descent even though it is provable that some were active for the Japanese Empire. He decided that in order to continue to dedicate the needed resources to prosecute WW II he did not have the need resources to investigate individually all those of Japanese descent so he decided to quarantine the probable source of espionage and sabotage. The Patriot act does not give blanket surveillance over American communication but it does remove restrictions on communications between Americans and KNOWN terrorist sources.

  17. Susan Craig says:

    I did not post this yesterday as I did not wish to hunt on that rabbit trail while discussing Federalist 8.

  18. Thank you all for another week of wonderful insights!

    Please encourage the children in your life to sign up online for our We The People 9.17 Contest! We are looking for entries especially in the short film and PSA categories for high school! Middle school and high school students can also enter a cool song or an essay, and the elementary school kids are invited to submit a poem or holiday card. Prizes include $2,000 for the winning high school entries and gift cards and other prizes for the younger kids. More information, including rules and signup form, is available at http://www.constitutingamerica.org

    A recurring theme on these posts and blogs has been our amazement at the foresight, vision and wisdom of our founding fathers. There are times in reading their words that certain sentences seem to leap off the page with relevancy for today. We find this long term vision and wisdom amazing because the elected officials of our generation deal mainly in the here and now. We are an immediate gratification society, and the majority of today’s leaders respond accordingly.

    Wouldn’t it be refreshing to hear our current policy debates discussed in the terms we find in these Federalist Papers, with the spirit of civility and long term vision of our founders? What will the new health care bill mean to us 200 years from now? What impact will the various immigration reform proposals have far into the future? Wouldn’t it be interesting for some of our members of Congress to write a series of articles similar to the Federalist Papers, addressing the consequential issues facing our country today?

    What words from our generation of leaders will resonate 200 years from now? I can’t answer that question, but I do hope and pray that 200 years from now, United States citizens will still be reading and studying the Constitution and the Federalist Papers, and will still be amazed at the foresight and wisdom of our founders.

    Have a great weekend, and wishing you all a very Happy Mother’s Day!

    Cathy Gillespie

  19. Carolyn Attaway says:

    Susan, I appreciate your feedback on the Patriot Act. The point I was trying to make was when the Patriot Act was signed into law, most Americans felt that the safety of their country was more important than the need to restrict our government from possible communications information. I wasn’t trying to define the Patriot Act in everything that it did, just that most people supported it at the time even though some claimed it gave the Federal Government to much freedom into communications and records. Today, there are some who claim that parts of the Act give the government to much authority.

    I believe 16 sections of the Patriot act were set to expire unless Congress decided to extend them. After much debate, Congress passed a bill in March 2006 which renewed the Patriot Act but implemented additional safeguards for civil liberties. 14 of the 16 measures were permanent, but the roving wiretap provision and the FBI access to business records were extended only until 2009. Then in February 2010, Congress passed a one-year extension on three expiring Patriot Act provisions which were:
    –Authorize court-approved roving wiretaps that permit surveillance on multiple phones.
    –Allow court-approved seizure of records and property in anti-terrorism operations.
    –Permit surveillance against a so-called lone wolf, a non-U.S. citizen engaged in terrorism who may not be part of a recognized terrorist group.

  20. Susan Craig says:

    I don’t know how much more civil they were; there are stories of Senators or Representatives going after each other with their walking sticks.

  21. Carolyn Attaway says:

    True, but don’t politicians always balk. I always find it interesting how a politician finds a law or rule wrong when he is in the minority, but a similiar rule when he is in the majority is the right thing to do. (Not all politicians, but quite a lot) I would find it interesting to see which Congressmen voted against the Patriot Act, but are for Net Neutrality.

  22. Susan Craig says:

    I agree Carolyn that that would be a fascinating statistic! General observation would suggest that the number would be high.

  23. Susan Craig says:

    Item three was (I think) not necessarily to go for the lone nutcase but to cover instances of a singular person sent out like a sniper. Snipers function on their own but are part of an overall strategy. All of the others I believe were caveated with a predicating contact with known terrorist or sympathizing entities.

  24. Glenn Roberts says:

    Like Barb Zakszewaki, I read about this site in Human Events. I just completed reading all the blogs made to date. Now I am going to Barnes & Noble in Chattanooga, Tn with a list of books that will help me keep up with this program. Thanks for making this site available and best of luck.

  25. Mary Lou Leddy says:

    I have been following this course of study since the very first day. It is so moving that the Founders were so insightful for the future of this great country. I have also been uplifted by the fact that so many other bloggers have had the same thoughts as I have had . And , of course, the guest bloggers ‘ interpretations have been most helpful to me.

    As I read the Federalists Papers, I am amazed at how pertinent they are to this day and age.

    I thank you all for sharing your thoughts .

  26. Greg Zorbach says:

    @ Carolyn. You are right on the money with this: “The Patriot act does not give blanket surveillance over American communication but it does remove restrictions on communications between Americans and KNOWN terrorist sources.” In fact, most of the rights its critics are complaining about are ones that do not exist – i.e. for non-citizens. Carolyn’s later summary was a very good one. The final point about enabling surveillance against a non-U.S. citizen engaged in terrorism is true about the latest legislation, but it should not be a requirement for non-citizens. However, given the courts’ unprecedented intrusion into this war’s prosecution it is probably necessary.
    Yesterday my fifth-grader grandson noticed this web site up on my laptop and asked me if I was reading the Constitution. He eagerly explained to me that they were studying about the Constitutional Convention. So, he and I got out his Social Studies book and went through it. To my surprise, the book got most of it right, especially the statement that the most important principle underlying the Constitution is individually liberty. My joy was dashed when I came across the following explanation of the First Amendment: “It also says that the government cannot promote or financially support any religion.” And this is at a Catholic academy. However, the textbook is a CA standard one. In my opinion, it would have been better had they just used the simple wording of the amendment: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”
    Found another surprise in his textbook – the last three lines of the second stanza of “America The Beautiful”: “God mend thine every flaw, Confirm thy soul in self-control, Thy liberty in law!”
    Self-control and liberty in law. How pertinent.

  27. Susan Craig says:

    @Carolyn: Our ‘wonderful’ Congress has just removed the “sunset” from the Patriot Act!!! Them’s fighting words.

 

 

May 10, 2010 – Federalist No. 9 – The Union as a Safeguard Against Domestic Faction and Insurrection, for the Indpendent Journal (Hamilton) – Guest Blogger: Joerg Knipprath, Professor of Law at Southwestern Law School

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Sunday, May 9th, 2010

Federalist Papers 9 and 10, though written by two different authors (Hamilton and Madison, respectively), both address the benefits from large “confederate republics” for internal peace and political stability. Of the two, Federalist 9 is the less momentous, but it raises a number of points that apply as well to other papers that follow.

First, there is the matter of defining terms. Throughout the Federalist, the writers define terms that often are used rather flexibly by others, including “republic” and, here, “Confederate Republic.” Hamilton in Federalist 9 wants to let his readers know precisely what distinctions he is drawing. Hamilton defines a confederate republic as a “convention by which several smaller states agree to become members of a larger one.” While that distinguished such a polity from a monarchy or an aristocratic republic (Rome and Venice), the definition leaves plenty of interpretive room to accommodate different types of confederacies, a discretion Hamilton and the others use to their advantage.

Second, Hamilton responds to the Antifederalist charge of “consolidation,” a frequently-used disparagement at the time that invoked images of a distant, tyrannical, and out-of-touch centralized government and of destruction of state-level authority. (Were they onto something?) Such consolidated government was said to be the opposite of a confederacy. The proposed constitution, Hamilton responds, does not abolish the states, but, rather, makes them a constituent part of the national sovereignty (an issue explored in more detail in future papers) and leaves with them certain exclusive and very important aspects of sovereign power (again, to be examined further in subsequent papers).

Hamilton’s approach accomplishes a couple of important goals and reveals a strategy followed over and over by the writers. For one thing, he ties the new Constitution to the old Articles. That creates the illusion of constancy, important for gaining political acceptance of the new plan. Placing the government under the Constitution (“strong” federalism) on the same continuum as that under the Articles (“weak” federalism) makes the difference between the two just a matter of degree—and an advantageous degree, at that—rather than of kind. This illusion is also important for blurring the revolutionary origins of the Constitution in a process that ignored the constitutional framework under the Articles. For another, emphasizing the confederal nature of the new structure supported the rhetorical coup of the pro-Constitution advocates styling themselves “Federalists,” a much more anodyne and sympathetic term than “Nationalists” or “Consolidationists.” That also, conveniently for the Federalists, deprived the Constitution’s opponents of the moniker most suited to them and left them tagged with the politically unenviable designation of just being “anti” something, and anti “federalism,” at that.

Third, Hamilton helps himself generously to quotations from the Baron de Montesqueiu. The latter’s main work of interest to the Framers, The Spirit of Laws, was cited frequently to support their positions, though not always in the “spirit” in which Montesquieu intended. Unlike the Federalist, Montesquieu saw a rarified interpretation of the English constitutional monarchy as ideal.

More important than the references to Montesqueiu as such is the high level of discourse they represent. Note also Hamilton’s reference to the Lycian confederacy. Discussing political philosophy and comparative constitutional systems is a common device in the Federalist, with frequent citations to other systems, ancient and modern. While these citations and the authors’ interpretations often were editorialized to prove a point (the Federalist was persuasive advocacy, not dispassionate analysis), the casual use of them meant that the authors and the audience had a common frame of reference.

The level of discourse evidenced by the Federalist is remarkable. Granted that the writings may not have targeted  the day laborer, the audience was nevertheless a wide segment of society. After all, these papers were not just notes on an internal debate. They were disseminated to a rather literate American public well beyond the participants in the New York and Virginia ratifying conventions. There was a broad level of understanding of the classic “liberal arts” among the middle and upper classes that made such discourse possible. True, Hamilton attended King’s College (Columbia University), but would the typical graduate of Columbia today be as well-grounded in Western civilization and thought (in contrast to identity group “victims studies”) as Hamilton and his audience? Is one likely to hear such discourse in the halls of Congress or in the media today? If not, does that say anything about our fitness for republican government?

That brings up a theme to be discussed further in connection with Federalist 10, the idea of “republicanism.” Republicanism animated Americans’ self-identity. Start with the name of just the writers of the Federalist, “Publius.” The man of the “people” (not of “states” or “interests”). It comes from Publius Valerius Publicola, a legendary statesman and general of the Roman Republic’s founding. Why write under a pseudonym? There was a legal reason in the history of the English law of publications of criminal libel, but by 1787 it was just a fashion—but one carefully selected. Opponents of the Constitution, too, chose their names with care, and the same person might change names to fit the occasion. Thus, in 1793, in defending President Washington’s Neutrality Proclamation, Hamilton wrote under the pseudonym “Pacificus” (the “peaceful one”). Most of their pseudonyms, from Publius to Cato to Agricola to Brutus to Cincinnatus, were taken from Roman Republican history. The Framers—and Americans generally—were fascinated, nay, obsessed, with the Roman Republic. They saw themselves as heirs to the Roman tradition of classical republican virtue, in their civically-involved citizenry, the militia basis for political participation, the need for inculcation of shared political values, and (for some, e.g., Jefferson and Patrick Henry) the repository of civic virtue in a broad class of yeoman farmers and artisans.

But, as Hamilton shows, the Framers were also keenly aware of the fragility of many republics. Hamilton sees the means of saving the American republic through its size and through the use of a representative system. Madison picks up that theme in Federalist 10.

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/ .

29 Responses to “May 102010 – Federalist No9 – The Union as a Safeguard Against Domestic Faction and Insurrection, for the Indpendent Journal (Hamilton) – Guest Blogger: Joerg Knipprath, Professor of Law at Southwestern Law School”

  1. Susan Craig says:

    Thank you Professor Knipprath for your discussion on this paper. Like you I was struck by a portion of the Montesquieu quotation. That being; “As this government is composed of small republics, it enjoys the internal happiness of each; and with respect to its external situation, it is possessed, by means of the association, of all the advantages of large monarchies.”
    The following argument in support of the Constitution leapt out at me. “The proposed Constitution, so far from implying an abolition of the State governments, makes them constituent parts of the national sovereignty, by allowing them a direct representation in the Senate, and leaves in their possession certain exclusive and very important portions of sovereign power. This fully corresponds, in every rational import of the terms, with the idea of a federal government.” It shows me how important it was that the corporate entity known as States be treated as deserving of representation as a whole and separate from individual citizen representation.

  2. Maggie says:

    Fabulous write up and interpretation. I now have a much better understanding of this paper and the mindset within which is was composed.

    @ Susan….the same second quote leapt out at me. It showed me how important it is that the Federal Government not overstep the individual States’ rights. We are, afterall, a Confederate Republic…not a consolidation.

  3. Susan Craig says:

    This paper reinforced my belief that the 17th amendment was a serious mistake and disenfranchised the individual States! This being said a repeal of this amendment would be a good step towards correcting what has gone amiss.

  4. Kay says:

    Prof. Knipprath also helped my understanding of Hamilton’s reasoning. The Founders undertook their task of formulating the Constitution by looking back and looking forward, what worked in the past, what governments had deficiences, what could conceivably work to provide the States, as part of the whole, for “peace and liberty” as opposed to “domestic faction and insurrection.” Our Congress has no sense of the past, except perhaps FDR’s New Deal, which seems to be the best thing since sliced bread, and Congress has just expanded, and expanded, on that with the out-of-control control of the Health Care Reform Bill. I hope those arising to run for public office are educating themselves on the reasoning behind the Constitution, and applying those lessons (which are timeless) to situations facing us today.
    Every candidate should be asked, “When was the last time you read the Constitution? Are you familiar enough with it to judge every piece of legislation by its provisions?” I have already been asking this question of candidates, and unfortunately, the answers are no to nebulous.
    Now I look forward to reading Madison in the next paper and the commentary. Your posted comments enlighten my understanding of every paper with thoughts I never would have drawn from the reading.

  5. Carolyn Attaway says:

    Prof. Knipprath, I thoroughly enjoyed your explanation of Federalist Paper #9. With your write up, I was able to breakdown the paper into several main components, and concentrate on the main theme of each.

    As with Susan and Maggie, I too picked up on Hamilton’s reiteration of the difference between a Confederate Republic consisting of constituent parts and that of a Republic with consolidated states. Earlier on this web-site, while discussing amendments, I mentioned that number 17 needed to be repealed because in its current status, it diminishes the States representation in the U.S. Senate. I believe this paper strengthens the argument that the U.S. Senator should be appointed to the Senate to represent the States best interest and not the voters.

    For example, when the heath care reform bill was being debated in the Senate, many State Governors requested that their U.S. Senators vote against the bill because of the damage the cost would do to their state. Instead, many U.S. Senators were more concerned with party loyalty and re-election bids; they voted against their states best interest. Now, many States are creating legislation to ward off the damage their Senators help create.

    Another section that caught my eye was ‘The Science of Politics’. This is not the first time that I noticed the concentrated effort to stress the importance of power into distinct departments. The statement ‘the introduction of legislative balances and checks; the institution of courts composed of judges holding their offices during good behavior; the representation of the people in the legislature by deputies of their own election: these are wholly new discoveries, or have made their principal progress towards perfection in modern times. They are means, and powerful means, by which the excellences of republican government may be retained and its imperfections lessened or avoided.’

    I find it humorous that Hamilton says that this legislative balance was not known or was imperfectly known to the ancients. If that is the case, I can’t help but wonder if we evolved 360 degrees and are now experiencing a generation that does not realize the importance of balanced powers within the Federal Government. And, if that is why we yet again find ourselves comparing our current troubles to that of Greece.

    One last thing that caught my attention, the word Framer. Until this time, I was concentrating on the word founder, but Prof. Knipprath used the word framer when describing our founding fathers. This word adds a new dimension for me when reading these documents. Now I can see these documents as a framework that is composed of many parts that are to be fitted and joined together to support our founding. A foundation is much stronger when it has a framework to support it.

  6. Richard Heck says:

    I appreciate Prof Knipprath’s words however he needs to write more in laymans terms. I had a hard time reading, understanding and following his article, I cannot imagine what my teenagers are going to say about todays blog.

  7. Margaret Wilkin says:

    Prof. Knipprath also helped my understanding of Hamilton’s reasoning. Liberty can only exist when we have a balance power. The Founders had this amazing foresight of what the future could become. They did this by their understanding of history of other governments and the great philosophers of the day.
    It strike me that we the citizens of the United State have to take a test to drive a car , to become a lawyer, get all sort of degrees, but the people that hold our liberty and that are sworn to uphold the constitution do not have to do anything to prove they understand the constitution. Just a thought .

  8. Susan Craig says:

    I’ll get the apology out of the first. Richard I truly do not mean to pick on you but your comment gives example as to why we need to take education away from the government. Where we presume that the ability to ascertain a meaning by context or dictionary has been lost or is not important.

  9. Andy Sparks says:

    I think it is important to distinguish the context in which Hamilton is writing. He is trying to persuade those that would vote against ratifying the Constitution to support it. Thus, he is emphasizing to the reader that the states will be sovereign in some capacities as defined by the Constitution. However, both he and Madison (at this time) saw the inherent weakness of the federal government compared to the states under the anemic AOC. Madison even proposed in the Convention a ‘negative’ against all state laws for the federal government, and nobody was for a more centralized government than Hamilton, as history bears out after ratification. During the writings of these essays then, one should read them understanding that at this time, all three writers, while assuaging those moderate anti-federalists concerned about the powers of their states, wanted a vastly more energetic national government.

  10. Chuck Plano, Tx says:

    Mabye Constituting America could index all of the guest bloggers blog on each Federalist Paper so they would be avaliable for future reference.

  11. Carolyn Merritt says:

    I agree with Chuck Plano on indexing all of our guest bloggers. I have not blogged in the last several days, but trust me, I’ve been studying and reading all of the blogs by the fantastic guest bloggers. Thank you Prof. Knipprath for clarifying what Hamilton was saying in Federalist #9.

  12. I have read and reread the 17th Admend.and compared it to the original arrangement,I must say I can not see an advantage to repealing the 17th.I understand there is Party pressure but I don’t see this as reason to take the vote from the people.Special interests and Party pressure is a difficulty,but in this day, where incumbents are sweating the results of the awakening people ( long long over due) I see this as perhaps the intentions , the spirit of the passage of it. Please if anyone can show more light revealing my error I am open .

  13. Howdy from Texas. I want to thank you for joining us today and I thank Professor Knippratch for his most insightful essay today!!! Thank you, Professor Knippratch.

    I am in the middle of tornados whirling through

    our ranch so I have to make this brief. I am once again amazed and inspired by the intellectual tenacity of our forefathers. It is my hope, through our foundation, that we may encourage our youth to read, read, read.

    History truly is the key to our future.

    My favorite passage of Federalist No9 is:

    The regular distribution of power into distinct

    departments; the introduction of legislative balances

    and checks; the institution of courts composed of

    judges, holding their offices during good behaviour;

    the representation of the people in the legislature, by

    deputies of their own election; these are either

    wholly new discoveries, or have made their principle

    progress towards perfection in modern times

    “..or have made their principle progress towards perfection in modern times.”

    This line captures my attention. Through out history many empires and republics had been formed but became lost in the mire of war, conquests or tyranny, as mentioned in earlier essays. Now, according to Alexander Hamilton, The United States Constitution, by analyzing the annals of history and recalculating and reinventing the basis of former Republics, offered “progress towards perfection in modern times.”

    Our forefathers, guided by the hand of Divine Providence, etched onto the new sphere of political science a masterpiece, a stroke of genius that would be embraced and cherished by Americans and emulated throughout the world – even today.

    How sad it is that we Americans have such little time to devote to the revolutionary and relevant thesis of our country; that we have forgotten to cherish such a gem. We, as a modern society, have forsaken our great founding principles, as a kitten is forsaken on the side of the road.

    It is Cathy’s and my goal to reach out to the schools across America and by this September 17th have 20 minute DVDs (or downloads) available of the winners of our contest – hip, cool and contemporary – discussing the United States Constitution in all her glory.

    Then when a 7th grader gets in your car, he or she won’t say, “What’s the Constitution?”

    And we, as parents, as adults, as citizens, through our “90 in 90 = 180,” will be re-stimulated, re-educated and fortified to take on whoever wants to challenge, defy or ridicule the validity of the United States Constitution. We will be ready to teach our children, our families, or our friends about the “perfection of modern times.”

    God Bless,

    Janine Turner

    May 102010

  14. Thank you Professor Knipprath for yet another enlightening essay!

    I would like to take a moment to recommend a book that I have found useful, and that you all may too:

    How to Read the Federalist Papers, by Anthony A. Peacock. This book may be purchased at the Heritage Foundation bookstore: http://astore.amazon.com/heritagefoundationbookstore-20/detail/0891951350 It is only about 100 pages, and full of great information!

    In Federalist 1, A General Introduction, Hamilton asserted that a wrong decision on this “important question” of whether or not to ratify the United States Constitution, would “deserve to be considered as the general misfortune of mankind.”

    Federalist 9 reminds us of the grand experiment that America was and is. History was littered with failed Republics. Another failure could forever doom future attempts at governing within the framework of a Republic. Success, however, could inspire similar governments around the world, liberating mankind. The stakes were high, and the founders recognized their place in history.

    This was America’s chance to prove that a Republican form of government could work – that political science had progressed, and refinements had been made including, as Hamilton lists:

    “The regular distribution of power into distinct departments; the introduction of legislative balances and checks; the institution of courts composed of judges holding their offices during good behavior; the representation of the people in the legislature by deputies of their own election,” and ”the ENLARGEMENT of the ORBIT within which such systems are to revolve.”

    I love how Hamilton takes on the arguments of his opposition, and further quotes, paraphrases, and explores Montesquieu to make his points, ending with an explanation of the importance of the State governments within the framework of the proposed Constitution, and their “exclusive and very important portions of sovereign power.”

    Thomas Jefferson called the Federalist, “The best commentary on the principles of government, which ever was written.” Federalist 9 certainly lives up to this high praise.

    Looking forward to Federalist 10!

    Cathy Gillespie

  15. Roger Jett says:

    Lynne Newcomer. Without the 17th Admendment there would not have been the “Miracle in Massachusetts” back in January. It would not have truly been the people of Massachusetts’ seat to fill, but would have belonged to the party machine. With the passage of this admendment we drew closer to Lincoln’s desciption of a “government of, for and by the people.”

  16. Susan Craig says:

    Roger Jett, while the “miracle” would have been a little more unlikely it might not have been necessary. The Senators were never to be direct representatives of the individual citizens. They were to represent the people as a corporate group overall as a State. They were sort of like in a large company where the union is the like the House of representatives. A Senator would be like the different Department heads representing the interests of their respective Departments (each department management selects the person to represent the needs and wants specific to the department as a whole). No longer do the specific States have a representative the looks to the overall of the State specifically because they no longer are selected at the State level while it is warm and fuzzy to have direct say in essence you did have a say by the selection of State Senators and Representatives. Also, if Massachusetts had not changed their law to preempt the possibility of a Republican Governor appointing the replacement for John Kerry should he have won the Presidency the ‘miracle’ would not have happened at all.

  17. Carolyn Attaway says:

    As excited as I was for the election of Scott Brown to the U.S. Senate; it was more for the ability to stop the majority’s agenda than his ideology. I believe this election came about because of over 100 years of misuse of the Senate Body. With the ratification of the 17th Amendment, party loyalty usurped State representation in the U.S. Senate. Senators could be elected over and over again by a majority of voters, thus dominating the seat and the ideals of the voters that elected him.

    The voters are represented in the House of Representatives, if they control the Senate as well, I believe this distorts the voters power, and those in the minority are overruled in every stance. If the Senate only reported directly to the State, the bullying factor from the party and the Administration would be diminished, thus giving the State a voice in the Federal gov’t. The State as a whole is a greater entity and has more strength in dealing with legislation that could hurt it’s citizens than the individual voter.

    I believe a lot of the ills States currently have to deal with are a direct result of Senators putting their party loyalty ahead of the State’s best interest. For example, many Governors are telling their Senators to kill Cap and Trade, but who are their Senators really listening to?

  18. @Roger Jett, I agree with you.I see more opportunity for corruption with appointments.The people are smart enough to bear the consequences,because we have the vote .Thanks for your input.

  19. Chuck Plano, Tx says:

    In regards to the 17th amendment if we returned with the repeal of the 17th the states would regain a large degree of control of the Federal System. It is much easier to change and or control the State Legislatures than it is the Federal Legislature. No longer would there be “money” involved in Senate elections and the beholding of Senators to special interest groups because of their campain contributions. Currently Senators spend on average over $10,000,000.00 dollars to get elected, where do they raise that money? Senators would have to answer to their state legislature for their votes such as the receint health care bill that will ultimately cost the states billions.

  20. Susan Craig says:

    Lynne, yes the opportunity is there. However, now the corruption is not so confined to the State Government level. Prior to the 17th amendment Senators were not vulnerable to the circumstances that led to and have been exacerbated by Campaign Finance Reform! If you didn’t like the Senators your state’s Governor, State Senators and State Representatives selected to represent the State as a whole; they are easier to reach, influence and/or change.

  21. Paul S. Gillespie says:

    Regarding 17th Amend., Lynn and Roger: Party loyalty as an encumbrance to the fidelity of a Senator to his State is a reality. Couple that with the unmitigated influence of campaign contributions, the majority of which does not originated within that State, and the result is a Senator with too many obligations to effectively represent this State, much less the people electing him.

  22. Roger Jett says:

    Valid points have been presented in opposition to the 17th Admendment and I concede that in theory state governments suffered a level of disenfranchisement as a result of it’s ratification. Framers of the Constitution recognized that Article 1, section 3 in granting constituency to the state legislatures instead of the populace in regards to the Senate, greatly increased the likelihood that those same state legislatures would ratify it. Beyond that there were substantial differences of opinion on constituency issues that drifted to the extreme in both directions.
    I believe that neither Article 1, section 3, nor the 17th Admendment perfectly address the numerous difficulties that we have faced with regard to the selection of Senators. Historically, the “realities of human nature” afflicted those serving in state legislatures during the first 125 years when they were the constituents, since factionalism does not discriminate and all are vulnerable. In the beginning, not all states elected their senators the same way. Intimidation and bribery occured at times. I saw noted that between 1866 and 1906 that nine bribery cases were brought before the Senate. On numerous occasions contentions arose that prevented state legislatures from electing new senators. At one point Delaware went four years without a seated U.S. Senator.
    As the point was well made in posts by others, even under the 17th Admendment there are times when vacancies are temporarily filled by state govenors. I ask that each of us compare and contrast the appointment of Roland Burris to the Senate seat for Illinois versus, the special election of Scott Brown to the Massachusetts vacancy. So far, I’ve not seen what I considered to be “unmitigated influence” steming from outside conservative campaign contributors to Senator Brown. He seems fairly focused on listening to and serving his Massachusetts constituency…. the people.

  23. Susan Craig says:

    The purpose of the bicameral legislature was that in one house representation would be by population (3 guesses and the last 2 and 3/4 don’t count) and the other would be where all constituent states would be equal (same offer) that way New York could not bully Wyoming on issues of sectional importance.

  24. Tina Bogani says:

    This is my first blog. FP #9 and #10 are my favorites. I always find myself reading the papers in the context of current events. One of the quotes that struck me was, “…we shall be driven to the alternative either of taking refuge at once in the arms of monarchy, or of splitting ourselves into an infinity of little, jealous, clashing, tumultuous commonwealths, the wretched nurseries of unceasing discord and the miserable objects of universal pity or contempt.” For me, this sounds like a description of “diversity” and how one group should be treated “more fairly” than another (ie, “empathy in judging”).

    I’m sorry to say, even after reading the arguments regarding the representation of the States interests in the Senate, how would it be different than what we have now? Wouldn’t the representatives of the States appointing the Senators be appointed by the People of the State in the first place? Sorry to be dense – can someone explain one more time how it should have worked and how it works now?…

  25. Susan Craig says:

    I’ll try and take a shot at it. Think of the nation as say a large conglomerate company. where there are scads of workers in many different subsidiaries. Say one subsidiary has mainly teamsters, another iron workers, another service, they elect someone to represent them and their concerns to the conglomerate board this would be like the house of representatives. Previously the Senate would have be made up of people who were selected out of the various subsidiaries to represent the overall concerns of the subsidiary say steel framing another subsidiary would say be agricultural services these would be selected by management and workers combined with final say being who the head judges to be best able to represent the subsidiary as a whole. As the Senators are now selected it is a beauty contest voted on by every one and concern no longer is to the corporate body but to the various constituencies.

  26. Roger Jett says:

    Tina Bogani. I may not be of much help in answering your question, but please let me try. It is a very good and appropriate question. Originally, under the Constitution (Article 1, section 3) U.S. Senators were elected by the state legislatures of their respective states. Under that arrangement the state legislature was the Senator’s constituent (the people he answered to and was responsible to represent the best interest of). By the early 1900′s there was sufficient disatisfaction within the nation to change that original arrangement and the legislative branch of the federal government proposed to the states the 17th Admendment for ratification. There were 37 states out of what was then 48 states in total (in 1913) that ratified this admendment into law. Under this new arrangement Senators were now to be elected directly by individual voters within each state and the individual citizens now were the Senator’s new constituency. That’s the quick and easy answer and I think it’s factual . Which arrangement is best involves a number of competing opinions as I think you’ve seen already in the ongoing debate. It sounds wishy washy of me, but I really think there truly are some pretty good arguments on each side.

  27. Kellie says:

    @Roger Jett: Thank you for your explanation, because the 17th Amendment and the story behind it was confusing me. I wonder, could this amendment contribute to the “lifetime” US senators we now have holding office today? Would it have been different if the senators were determined by the state legislatures, which are more diverse. My guess is that the terms of these senators would be shorter and we’d have more of a voice in government.

  28. Roger Jett says:

    Kellie, I’m not sure I would agree that state legislatures are more diverse than the general population. Like it or not our political system is now and has pretty much always been a two party system at both the national level and the state level. Amongst the people there is enormous diversity, but within each party I believe that many of the minorities go pretty much unrepresented at the state legislature level. States have a tendency to lean to one party, even when they have a substantial number of voters who profess to be unafilliated and independent minded. The explanation of why we have so many “lifetime U.S. Senators” probably requires a better understanding of human nature than I currently have. My quess would be that Senators as a rule have been successful at convincing us that we have a voice with them (not been true lately though… has it?).

  29. Are you kidding me? I’m not certain I can put myself behind what you have said. But I will surely be back to find out more soon.

 

May 11, 2010 – Federalist No. 10 – Janine Turner

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Tuesday, May 11th, 2010

Brilliant. Brilliant. Brilliant. Mesmerizing. I agree with Professor Knipprath words, “Federalist No. 10 is a masterpiece of political theory and insight into human psychology. Almost every sentence is worth studying.”

Well said, Professor Knipprath and your essay today is quite brilliant, too, and thought provoking, as well. I thank you for your devotion to “Constituting America” and for all of your esteemed guidance.

I thank all of you who have blogged with us today and for your stimulating dialogue.

There is so much wonder, scope, knowledge, perspective and vision in this paper that I do not even know where to begin. I do believe I may have to meditate upon it before I can give it the respect it deserves.

What am I learning is the difference between a democracy and a republic and through these papers, and this paper in particular, I am getting a clear vision about why we are a republic. Passions, individual perspectives and political factions breathe life into liberty but they must be channeled and curbed. The answers to this challenge lie in our representative form of government.

To quote James Madison:

“Liberty is to faction, what air is to fire, an aliment, without which it instantly expires”

I am sharpening my insights regarding Republican virtues. These virtues deserve to be studied in school and taught in the home. We, as citizens, would be wise to delve into the psyche of the Revolutionary patriots, imbue their sense of virtue and wear their armor of valor. Ah, to breath the air they breathed, to feel the electricity they felt – the enlightment, the courage, the inspiration, the determination.

Knowledge is power. How fabulous that we are on this journey, this path of understanding – for if we do not know what we have, we will not know what is being taken away. Spread the word. Let’s get as many Americans to join us as we discover the thesis of our great land – to preserve it we must observe it.

God Bless,

Janine Turner

 

May 11, 2010 – Federalist No. 10 – Cathy Gillespie

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Tuesday, May 11th, 2010

It’s been exciting to see so many blog participants today! A big thank you to those who are with us every day, and an enthusiastic welcome to some of our newer folks!   Each of you brings a unique and valuable perspective to these pieces.  The larger the group we hear from, the more complete and “whole” our understanding becomes!

I was fascinated by the descriptions of factions in human nature, with faction defined as a group, majority or minority, united by a common passion or interest “adversed to the rights of other citizens, or to the permanent and aggregate interests of the community.”  Knowing we can’t control the cause of these factions, the founders set out to control the effects.

Madison argues that a republic is more effective than a democracy in controlling the effects of factions.  I would bet that most citizens today cannot explain the difference between a republic and a democracy.  Federalist No. 10 not only explains the difference, but outlines the reasons why a Republic is more effective than a Democracy in representing the broad interests of the community and Nation.

I loved this sentence: “A rage for paper money, for an abolition of debts, for an equal distribution of property, or for any other improper or wicked project, will be less apt to pervade the whole body of the Union than a particular member of it.”

Madison saw “an equal distribution of property” as “improper and wicked.” There is a moral case to be made for allowing the spirit of free enterprise to reign in our society.  Men possess different abilities, and their “diverse faculties” produce different classes of property owners.  A republic balances the interests of these different classes.

Finally, towards the end of Federalist No. 10, a sentence that made me smile: “In the next place, as each representative will be chosen by a greater number of citizens in the large than in the small republic, it will be more difficult for unworthy candidates to practice with success the vicious arts by which elections are too often carried.”  It is interesting to see that over 200 years ago, they still had problems with “dirty tricks,” in campaigns!

Thank you again to everyone for your insights today!!

Cathy Gillespie

3 Responses to “May 112010 – Federalist No10 – Cathy Gillespie”

  1. Dave says:

    Cathy, you commented on Madison’s acknowledgment that men by nature possess a diversity of faculties. But, what almost jumped off the page for me was the next sentence–”The protection of these faculties is the first object of government.” This idea is similar to what Jefferson wrote in the second paragraph of the Declaration of Independence telling us that governments are instituted among men to secure our unalienable rights. Our diverse faculties are such an integral part of who we are that they are probably as unalienable as life, liberty and the pursuit of happiness. One can come to a paradoxical conclusion that when individuals with diverse faculties, situated differently in time and space, are truly free, the result is a whole lot of inequality–that’s material inequality not political inequality. So a necessary corollary of liberty is inequality and it then follows that a prime function of government is actually to protect inequality. Of course in the long run, society is better off if individuals are allowed to flourish using the unique faculties with which they have been endowed. This is a problem today in an era of identity politics, the politics of envy and class warfare–individuals can’t be allowed to flourish.

    It is clear to me that the Founders conceived of government, properly structured, as a means of protecting us from one another. The modern conception of government for most Americans is diametrically opposed to the Founders’ conception. Today, we have some Americans using government to invade the property rights and impair the faculties of other Americans. Government today is seen as a provider government; a government that will provide not only the bare necessities, but also a house, a job with a certain pay level, medical care, a car, internet, a cell phone and, most recently, appliances. And what most people fail to realize, or they do realize and just don’t care, is that before the government can provide anything to anyone it must first take resources or labor from some other citizens. So now we have an ever-growing segment of our population who wish to obtain for themselves through the force of government that which they refuse to provide for themselves by tapping into that quintessential American trait of an “unequaled spirit of enterprise.” The Founders no doubt were familiar with the fundamental law of economics that says, “Man tends always to satisfy his needs and desires through the least possible effort.” If it’s easier to get something through political means using coercion than through economic means using voluntary contracts and transactions, then men lacking virtue won’t waste any time to start organizing to gain control the political process with the singular aim of redistribution.

  2. Susan Craig says:

    Ah yes another prime example of the hubris of man. Man thinks that he can equalize and homogenize what GOD has created as diverse and interesting. This ranks right up there with the belief that puny man could possibly destroy anything as complex and wonderful as the climate of the earth. Yes we can soil to uninhabitability our own particular corner but on a global scale not so much.

  3. Madison also saw large corporations as an evil. so the “moral case to be made for allowing the spirit of free enterprise to reign in our society” was not as cut and dry as Libertarians make it seem. Madison wrote that “there is an evil which ought to be guarded agst in the indefinite accumulation of property from the capacity of holding it in perpetuity by ecclesiastical corporations. The power of all corporations, ought to be limited in this respect” – – James Madison, Detached Memoranda, circa 1817

    This pretty much contradicts the “moral case to be made” in favor of a progressive case for trust busting and legislating against “too big to fail.”

 

 

May 11, 2010 – Federalist No. 10 – The Same Subject Continued: The Union as a Safeguard Against Domestic Faction and Insurrection, From the New York Packet (Madison) – Guest Blogger: Joerg Knipprath, Professor of Law at Southwestern Law School

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Monday, May 10th, 2010

Federalist 10 is a masterpiece of political theory and insight into human psychology. Almost every sentence is worth studying. The central theme, “republicanism,” carries over from its predecessor. At the core of classic republicanism, going back to the ancient Greek and Roman writers, lies “virtue.” Aristotle, Polybius, and Cicero, among others, saw an essential connection between personal (private) virtue and civic (public) virtue. This was, for most Americans, especially those drawn from Calvinist stock, one of those self-evident truths. An interesting statement of the preconditions for virtue is in the great Northwest Ordinance of 1787: “Religion, morality, and knowledge, being necessary to good government and the happiness [in the Greek sense of personal flourishing as a human being] of mankind, schools and the means of education shall forever be encouraged.,” sentiments expressed almost identically by George Washington in his remarkable farewell address.

Writers on ideal republican systems that emphasized virtue were not faced with the task of constituting an actual working government. One of the asserted practical defects of republics and, worse, democracies, has been their political turbulence. Ever since Plato, Western political theory has emphasized the very practical need that government first and foremost ensure political stability. To that end, every political system must have a symbol or ideal around which to rally, something or someone that can bridge the inevitable tensions that arise among competing personal interests. In the English constitution, that symbol was the crown, and American writers in the 1780s worried about what the absence of a king might mean for the long-term stability of the United States. The political and economic turmoil that was endemic in many of the states was less than reassuring. In the United States, that common ideal was the promotion of republican virtue. Today, some would say, it is the Constitution.

The self-interested part of human nature was called the spirit of party or, more commonly, “faction.” Its effect is to undermine republican virtue, which demands sacrifice of the self or the group for the benefit of the whole. Faction is the anti-matter of classic republicanism The history of the early American republic, including Jefferson’s inauguration speech in 1801, almost wholly revolves around coming to terms with the reality of faction in a system that claimed to rest on republican virtue. Today, politicians still often appeal to bi- or non-partisanship as a republican value and libel their critics’ opposition as un-American selfishness. Truth be told, people love partisanship and engage in full-throated defense of their interests, and politicians quickly change their tune when their own oxen are gored.

Madison shrewdly exploits that. He writes that there are two ways to deal with faction: Address its causes or its effects. The first is impossible, as it would necessitate addressing the root cause of faction, fallen human nature. That is totalitarian, in that it requires remaking human nature by equalizing personal talents and possessions. Such a cure would be a destruction of liberty worse than the disease. Moreover, it actually would go against the duty of government to protect the natural inequalities of persons. We may all be created equal in the eyes of God or enjoy metaphysical equality, but we are not in fact all created equal in talent. Human society will always reflect inequalities in talent and differences of opinion, and we need to deal with the realities of human nature, not with pie-in-the-sky proposals to remake humans. Is anyone in D.C. listening?

He proposes instead to deal with the effects of faction. He sets out the danger of democratic systems, such as ancient Athens, where the ability of people to communicate with each other within a homogeneous and geographically confined polity allows permanent majority factions to appear that oppress minorities. Those endangered minorities are political and religious dissenters and the propertied classes. In fact, he singles out taxation as a tool particularly susceptible of abuse against them. Does this sound familiar at all? The opposite danger could also appear, in oligarchies, where a permanent minority faction might oppress the majority. The key, then, is to prevent both of these permanent conditions. Like Plato and Aristotle, among others, Madison sees both oligarchy and democracy as corrupt political forms. Like many of them, he proposes something he calls a “republic.”

The danger of oligarchy is mitigated by the republican principle of the vote. Easy enough. More difficult is the danger of unadulterated democracy. It is worthwhile to re-read his mellifluous and powerfully concise indictment of such a system in the paragraph that begins, “From this view of the subject….” The control, though not cure, for that ill is the element of deliberation introduced through the republican principle of representation. By itself that is still not enough, as small republics suffer from similar defects as democracies. The second crucial element to forestall oppressive permanent majorities is the large size of the American republic with its large and diverse citizenry. That lessens the dangers of popular passions easily communicated and organized to oppress the minority.

Madison cleverly turns the arguments of his opponents against them. Among Antifederalists, it was almost an article of political faith that a government for a large dominion inevitably becomes oppressive. Not content merely to defend the Constitution and the increased power of the national government against charges that the new system threatens liberty, Madison goes on rhetorical offensive against the political instability found in states with which his contemporaries were all too familiar. In a hard-hitting paragraph near the end (“The influence of factious leaders….”), he argues that the central government is less dangerous than states or localities. It is noteworthy what he perceives to be the bad results from too much democracy: “[A] rage for paper money, for an abolition of debts, for an equal division of property, or for any other improper or wicked project….”

Ingenious as his control of faction is by embracing its reality while blunting its worst manifestations (an issue to which he returns in Federalist 51), is he still right today? Certainly there are big variations in dominant popular political opinions between states or even within states. Though the contrast is becoming paler, there still is greater political homogeneity within particular localities than among Americans as a whole. On the flip side, mass communication and personal mobility, along with a weakening of intermediary institutions, make even our national system much more like the participatory or plebiscitary democracies about which Madison warned. Moreover, the central government, through means to be addressed in future papers, has taken on some of the very characteristics the Antifederalists feared. If that is the case, isn’t local control (and the ability to vote with one’s feet) more conducive to personal liberty than top-down central government from which there is no escape?

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/ .

20 Responses to “May 11, 2010 – Federalist No. 10 – The Same Subject Continued: The Union as a Safeguard Against Domestic Faction and Insurrection, From the New York Packet (Madison) – Guest Blogger: Joerg Knipprath, Professor of Law at Southwestern Law School”

  1. Susan Craig says:

    Wow! In my note taking for this paper, I found it hard not just to copy the whole thing! But the portions that hit the hardest were: “On the other hand, the effect may be inverted. Men of factious tempers, of local prejudices, or of sinister designs, may, by intrigue, by corruption, or by other means, first obtain the suffrages, and then betray the interests, of the people. The question resulting is, whether small or extensive republics are more favorable to the election of proper guardians of the public weal; and it is clearly decided in favor of the latter by two obvious considerations:”

    AND

    “The federal Constitution forms a happy combination in this respect; the great and aggregate interests being referred to the national, the local and particular to the State legislatures.”

  2. Maggie says:

    Excellent interpretation! You have clearly explained the very “soul” of this paper….I really have nothing to add. Thank you again for your time and willingness to help all of us learn more about our founding and the great men who were inspired to give us our Republic. Now let’s hope that it’s not too late to keep it.

  3. Carolyn Attaway says:

    I wish we could have had this Federalist Paper assignment over a weekend; there was so much in it that my thought process was constantly racing from one end of the spectrum to the other. I had to read this paper several times in order to take in all the ideas of information.

    For me, the main theme in this paper was the statement “There are two methods of curing the mischiefs of faction: the one, by removing its causes; the other, by controlling its effects.”

    Prof. Knipprath goes in great detail explaining the methods of removing factions, and the example he used regarding the differences in human talent spoke to me best.

    For years, I have told my children that everyone should be guaranteed an equal opportunity in life, but no one is guaranteed equal outcome. There are too many factors is life to make equal outcome impossible, no matter what any politician tells you. The factors that direct a person’s life are limitless and cannot be controlled.

    The following statement by Prof. Knipprath hit the nail on head as to why I believe many societies fail: ‘We may all be created equal in the eyes of God or enjoy metaphysical equality, but we are not in fact all created equal in talent. Human society will always reflect inequalities in talent and differences of opinion, and we need to deal with the realities of human nature, not with pie-in-the-sky proposals to remake humans.’

    I have heard it said that if you take all the wealth in the country and evenly distribute it among that country’s citizens, within a generation or two, the majority of the wealth will be back to its original distribution. Why? Because the spirit of the entrepreneur will always rise to the surface to better the situation around him. That spirit is always dissatisfied with the status quo.

    Sadly, many in our government believe in equal outcome, and have convinced a large portion of our country that this process is not only doable but sustainable. Both I believe to be false statements, and a major cause of faction in our country today.

    My humor statement of the day in this paper, “Enlightened statesmen will not always be at the helm”. Oh, if only I had time to debate this!

  4. Carol Frenier says:

    In the 1970s I taught American History in high school. I remember that Federal #10 was viewed as one of the cornerstones of the Federalist papers in the eyes of many historians, but it took me 65 years of living to see why. Quite simply #10 explains in the most realistic terms how people relate to their government: they form factions to get what they want.

    Madison’s definition of factions and its causes, plus his conclusion that removing the causes would essentially destroy liberty, are intriguing. But even more interesting to me is this passage which sums up the whole situation.

    “The diversity in the faculties of men, from which the rights of property originate, is…an insuperable obstacle to a uniformity of interests. The protection of these faculties is the first object of government. From the protection of different and unequal faculties of acquiring property, the possession of different degrees and kinds of property immediately results; and from the influence of these on sentiments and views of respective proprietors ensures a division of the society into different interests and parties.”

    The idea that it is the duty of government to protect the inherently different capacities in people is well worth pondering. Liberals and conservatives would probably react to this very differently. Many liberals might grudgingly concede that inherent differences are a reality, but they might also find it appalling—something for Progressives to alter via government action. Conservatives would more likely find it appalling that liberals would think this reality is something that could be changed, sort of like defying gravity. They would likely support the protection of such differences as the ground upon which people thrive and create.

    Wanting people to be free to use their inherent capacities (and wanting to protect the fruits of their labor) is not the same thing as being indifferent to the suffering of those in need, but it is often interpreted that way. The distinction between these two ideas is important for conservatives to get across to the electorate in November. We are, it seems to me, at a crossroads between reaffirming the protection of liberty as the bedrock of our political tradition or moving toward a nanny state in which differences of ability—and the creativity that results from those differences—are minimized and group identity and grievances are emphasized.

    As we debate these two political courses—often rancorously—we are ourselves caught up in factions. Can we calm the debate and minimize our different views by focusing on the values and principles that we all do agree on? How, for example, is the best way to integrate the ideas of liberty and fairness? Or liberty and compassion? What specific policies would contain good compromises between these competing passions and interests?

  5. Susan Craig says:

    What I am trying to figure out is the inclination of utopians is that they can legislate a change in human nature. It strikes me as absurd as trying to legislate gravity out of existence because I don’t want the pain caused when I fall down.

  6. Roger Jett says:

    In “Federalist Paper 10″, Madison lifts the veil to reveal what fearful impact “the reality of faction” has on any system were liberty receives value. Liberty requires breath, but Madison points out succinctly that the same air that gives us breath fuels the fire of factionalism. Professor Knipprath has been succinct also as he has expounded insightfully upon the issues raised. Madison in this writing, loaded the bases for our team and you sir have drilled it out of the park. I wonder to if “anyone in D.C. is listening?”.

  7. Kay says:

    This Paper #10 was by far the most exciting, probably because I see so much happening today mirrored in Madison’s reasoning. What were the particular factions existing in the time of the Constitution, and which Madison may have had in mind?
    “Liberty is to faction, what air is to fire,” seems to say there will always be issues of passionate viewpoint. Republican virtue would hopefully rise to the top if, a big if, office holders possess virtue. For those whose mantra is equality in every way, didn’t they ever tell their children that sometimes life is not fair? Also, what came to mind after reading: “But the most common and durable source of factions has been the various and unequal distribution of property,” was the parable Christ told about the talents and how some capitalized on their talent, and how one of them did nothing with it. To me, that exemplifies human nature and spirit…how they move and work in their own domains. Governments can try to “equalize” everyone and our possessions, but as in the Soviet’s days, a greyness, dampness will occur over the people.
    Thank you again for the Professor Knipprath’s commentary and all the bloggers, who are adding day by day to my meager understanding!

  8. Maggie says:

    @ Kay….you said it perfectly when you stated “To me, that exemplifies human nature and spirit…how they move and work in their own domains.” It makes me think of “No Child Left Behind”. We educate all of our children in this country, but not all people have the same capacity for learning. We now spend more time trying to prop up those people who, sometimes, just aren’t going to get it while neglecting those who could be our future leaders. The brilliant minds of our youth are being held back to the lowest common denominator in the classroom. Sure, I think that those that are falling behind may benefit from extra help but not to the detriment of the rest of the class. The same goes for the business world. We can’t expect EVERYONE to be a great success…..we don’t all have what it takes. Trying to change that is a waste of time, effort and expenditures.

  9. Ron Meier says:

    This struck me most: “When a majority is included in a faction, the form of popular government, on the other hand, enables it to sacrifice to its ruling passion or interest both the public good and the rights of other citizens. We well know that neither moral nor religious motives can be relied on as an adequate control.”

    This is what happens when one party controls both houses of Congress and the Presidency, which is what we have in 2010. The faction includes the executive and legislative branches, which are controlled by one party. In spite of the opposition of the majority of citizens, the majority faction controlling two branches of government was able to pass the health care law, which was based solely on ideological passion and not on what was best for the public good.

  10. Andy Sparks says:

    Professor Knipprath, thank you for the excellent essay on the Federalist 10 written by the foremost political mind of the founding generation. I find it interesting and appropriate that you reference the passage from the NW Ordinance (which was devised by the government under the Articles by the way) and relate it to George Washington’s farewell address. Realization of the comparison is evident given that James Madison initially wrote and Alexander Hamilton revised Washington’s farewell address. While the two primary authors of the Federalist essays eventually diverged on how government should be run under the Constitution, they are remarkably consistent on the reasons necessitating the Constitution at its inception.

  11. Susan Craig says:

    From readings I’m doing it appears that the Articles weren’t all that ineffective. Where it ran into difficulty was in the unanimous requirement for amendment and raising of revenue. I would like to know the reasoning behind Rhode Island’s obstructionist votes during this period. Each time amendments were brought forward under the Articles of Confederation Rhode Island was the lone state not to ratify and as there was a unanimous requirement they all went down to defeat.

  12. Susan Craig says:

    They also were the lone State to initially not send delegates to the Constitutional Convention.

  13. Quillhill says:

    Is the recent and current path of our federal government proving the Anti-Federalists correct?

  14. As usual, the quality of the comments is so impressive. A “thank you” also for the gracious responses to the blog post.
    Federalist 10 is in the top handful of the papers in insight and importance. It combines political theory with a clear-eyed view of political reality and how institutions work, as historical experience tells those who only have the will to listen.
    I was intrigued by s.th. Susan wrote, a point that probably will come up again in future discussions. Adoption of the Constitution was probably not as essential at that time as Publius makes it out to be. The main drawback of the Articles was, indeed, the difficulty of amendment. There were serious efforts to amend the Articles at least into 1786, and discussions even into 1787. The earlier efforts focused on getting Congress some independent revenue-raising power, at least as to import duties (s.th. that the King had had under his sovereign prerogative for a long time). Some focused on getting some kind of military power to force recalcitrant states to pay their obligations. Later efforts focused on finance, as well, but just as significantly, on a power to regulate foreign and interstate commerce. That would have superseded the Congress’s limited ability under the Articles only to arbitrate commercial disputes upon demand by the states.
    As to “Rogue’s Island,” as it was often known, there are two broad explanations, one high-toned, the other not so much. R.I. had a long democratic (for the time) tradition, with a royal charter that basically remained the state’s constitution into the 1840s (when a mildly violent “civil war” addressed the desire for reform) and protected civil liberties and voting rights. The state distrusted the federal government as an invitation to tyranny, exactly the kind of concern Fed 10 tries to assuage.
    The less honorable interpretation is that R.I. was a strong “debtor” state that had engaged in all kinds of chicanery regarding its public and private debts. Moreover, it was a state that had acquired quite a reputation for sharp commercial dealings. It relied on heavily on fishing and international commerce (including the slave trade), including smuggling. If a strong central government emerged, the state’s inflationary loose money policies, as well as its independent commercial course would be subject to control. The state had all those characteristics that Fed. 10 assigns to the most turbulent of small democratic states (“A rage for paper money, etc.”).
    Its convention voted 34-32 in 1790, after years during which no convention had been permitted to meet because the Constitution had lost in a popular advisory vote. The convention was called because the Bill of Rights had been proposed and because of threatened sanctions from other states (from taxing R.I. products as imports from a foreign country to using military force to quarantine or invade the place). “It’s not the size of the dog in the fight, but the size of the fight in the dog.”

  15. Everybody… thank you for your input. What I got from this reading is that we have been straying from the bed rock principles of human nature for some time now.It has us all caught up in a make believe world to some extent.Examples that come to mind,…the trophy generation children are being indoctrinated with this idea…..teachers not marking papers with red ink because some will “feel” bad, of course this was never the original intention of red ink. Raising children taught me many things ,among them was that each child was different an individual, they all had my love and attention but they all needed guidence in different area .Government needs to be there but mostly needs to get out of the way of the people,we can handle our own lives and resent intrusion , manipulation and trying to make us all something that someone else fancies is always a bad idea.,We are what we are and our founders understood the condition of man quiet well.

  16. Susan Craig says:

    Thank you, Prof. Knipprath (how do you pronounce that?). As a history fan it has been a head scratcher for me. I’ll wager things were quite lively in RI for a while.

  17. It’s been exciting to see so many blog participants today! A big thank you to those who are with us every day, and an enthusiastic welcome to some of our newer folks! Each of you brings a unique and valuable perspective to these pieces. The larger the group we hear from, the more complete and “whole” our understanding becomes!

    I was fascinated by the descriptions of factions in human nature, with faction defined as a group, majority or minority, united by a common passion or interest “adversed to the rights of other citizens, or to the permanent and aggregate interests of the community.” Knowing we can’t control the cause of these factions, the founders set out to control the effects.

    Madison argues that a republic is more effective than a democracy in controlling the effects of factions. I would bet that most citizens today cannot explain the difference between a republic and a democracy. Federalist No. 10 not only explains the difference, but outlines the reasons why a Republic is more effective than a Democracy in representing the broad interests of the community and Nation.

    I loved this sentence: “A rage for paper money, for an abolition of debts, for an equal distribution of property, or for any other improper or wicked project, will be less apt to pervade the whole body of the Union than a particular member of it.”

    Madison saw “an equal distribution of property” as “improper and wicked.” There is a moral case to be made for allowing the spirit of free enterprise to reign in our society. Men possess different abilities, and their “diverse faculties” produce different classes of property owners. A republic balances the interests of these different classes.

    Finally, towards the end of Federalist No. 10, a sentence that made me smile: “In the next place, as each representative will be chosen by a greater number of citizens in the large than in the small republic, it will be more difficult for unworthy candidates to practice with success the vicious arts by which elections are too often carried.” It is interesting to see that over 200 years ago, they still had problems with “dirty tricks,” in campaigns!

    Thank you again to everyone for your insights today!!

    Cathy Gillespie

  18. Brilliant. Brilliant. Brilliant. Mesmerizing. I agree with Professor Knipprath words, “Federalist No. 10 is a masterpiece of political theory and insight into human psychology. Almost every sentence is worth studying.”

    Well said, Professor Knipprath and your essay today is quite brilliant, too, and thought provoking, as well. I thank you for your devotion to “Constituting America” and for all of your esteemed guidance.

    I thank all of you who have blogged with us today and for your stimulating dialogue.

    There is so much wonder, scope, knowledge, perspective and vision in this paper that I do not even know where to begin. I do believe I may have to meditate upon it before I can give it the respect it deserves.

    What am I learning is the difference between a democracy and a republic and through these papers, and this paper in particular, I am getting a clear vision about why we are a republic. Passions, individual perspectives and political factions breathe life into liberty but they must be channeled and curbed. The answers to this challenge lie in our representative form of government.

    To quote James Madison:

    “Liberty is to faction, what air is to fire, an aliment, without which it instantly expires”

    I am sharpening my insights regarding Republican virtues. These virtues deserve to be studied in school and taught in the home. We, as citizens, would be wise to delve into the psyche of the Revolutionary patriots, imbue their sense of virtue and wear their armor of valor. Ah, to breath the air they breathed, to feel the electricity they felt – the enlightment, the courage, the inspiration, the determination.

    Knowledge is power. How fabulous that we are on this journey, this path of understanding – for if we do not know what we have, we will not know what is being taken away. Spread the word. Let’s get as many Americans to join us as we discover the thesis of our great land – to preserve it we must observe it.

    God Bless,

    Janine Turner
    May 11, 2010

  19. Carolyn Merritt says:

    I found #10 to be an exciting read. It was like reading the blueprint for today’s political atmosphere. In his first paragraph where he states “…that the public good is disregarded in the conflicts of rival parties; and that measures are too often divided, not according to the rules of justice, and the rights of the minor party, but by the superior force of an interested and over-bearing party.” This brings to my mind the current steamrolling of health care, bailouts, etc., without regard for the majority of citizens’ voicing their opposition.

  20. Joe Drum says:

    Wow, these are the kind of insights I was hoping to find when I came to this site. Thanks Janine and Cathy and can we hear more from Professor Knipprath?

 

May 17, 2010 – Federalist No. 14 – Cathy Gillespie

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Tuesday, May 18th, 2010

Federalist #14

First, a big thank you to Dr. Allen for his insightful comments.  As usual, Dr. Allen does much more than simply explain to us what is in the reading, he takes us several steps further.

And thank you to all of you who commented today.  Especially to Kay for her heartfelt story about the airport encounter, and the glimpse into the soul of our Union.

Wow! I loved Federalist #14!  There are so many beautiful passages about unity in our country –  “the kindred blood which flows in the veins of American citizens, the mingled blood which they have shed in defense of their sacred rights, consecrate their Union, and excite horror at the idea of their becoming aliens, rivals, enemies.” While the American people “have paid a decent regard to the opinions of former times and other nations, they have not suffered a blind veneration for antiquity, for custom, or for names, to overrule the suggestions of their own good sense, the knowledge of their own situation, and the lessons of their own experience…”  But the item that most caught my attention was the discussion of the difference between a republic and a democracy. I was struck by the fact that many of the communication and travel constraints our founding fathers operated under have been removed in present day by technology, and by the fact that technology is facilitating our country’s move toward democracy, something our founding fathers would not see as an improvement.

The difference between a republic and a democracy is so important, and so little understood.  In Federalist 14 and elsewhere, Publius devotes a good amount of time explaining the difference between these two forms of government, and detailing the weaknesses of a democracy as opposed to a republic.  In our founding fathers’ time, a democracy within a large geographic area was impossible, limited by the “distance from the central point which will just permit the most remote citizens to assemble as often as their public functions demand, and will include no greater number than can join in those functions.”  In Federalist 14 Madison points out that the geographic size makes the United States much more suited to a republic than a democracy.

Today, technology has erased the constraint imposed by geographic size, and our culture is drawing us towards democracy. Television shows such as American Idol where millions of people cast ballots; online polls where instant readouts of the public’s tastes, preferences and opinions are measured; Twitter, Facebook: all put more power than ever in the collective public’s hands to instantly express opinions on any matter.

But the weakness of pure democracy is the same, whether it is a small geographic area where the people are physically coming together to vote on every issue affecting them, or whether it is millions sitting at computers, in front of their televisions, or texting on their cellphones “voting.”  As Hamilton states in Federalist 71, “The republican principle demands that the deliberate sense of the community should govern the conduct of those to whom they intrust the management of their affairs; but it does not require an unqualified complaisance to every sudden breeze of passion, or to every transient impulse which the people may receive from the arts of men, who flatter their prejudices to betray their interests.”

In Federalist 10 the weakness of pure democracy was summed up this way: “From this view of the subject it may be concluded that a pure democracy, by which I mean a society consisting of a small number of citizens, who assemble and administer the government in person, can admit of no cure for the mischiefs of faction. A common passion or interest will, in almost every case, be felt by a majority of the whole; a communication and concert result from the form of government itself; and there is nothing to check the inducements to sacrifice the weaker party or an obnoxious individual. Hence it is that such democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property; and have in general been as short in their lives as they have been violent in their deaths. Theoretic politicians, who have patronized this species of government, have erroneously supposed that by reducing mankind to a perfect equality in their political rights, they would, at the same time, be perfectly equalized and assimilated in their possessions, their opinions, and their passions.

As the culture draws us toward democracy, and with the geographic constraints on democracy removed by technology, it is more important than ever that we understand the systemic flaws of this type of governance.

Our elected officials must be firmly grounded in the meaning of the republic, and their role in balancing competing interests and factions.  We must understand the fundamental reasoning and principles that drew our founding fathers to govern through a republic, and the Federalist Papers are vital for that understanding.

I am so grateful for all who are adding to our knowledge base each day, and journeying with us through these readings.  Thank you!!

Good night and God Bless!

Cathy Gillespie

 

May 17, 2010 – Federalist No. 14 – Objections to the Proposed Constitution From Extent of Territory Answered, From the New York Packet (Madison) – Guest Blogger: W. B. Allen, Dean and Professor Emeritus, Michigan State University

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Sunday, May 16th, 2010

In the fourteenth essay Publius argues that America has discovered the merit of making the mechanical principle of representation the basis of unmixed and extensive republics. This is not only an extended republic, but it is a republic in which we do not have to make a special place for the rich and the poor. We will not reserve one legislative house for the rich, another house for the poor. We will not create formal classes in government, and the government will not depend on class distinctions.

It may not have been observed that the tenth essay’s principle of the extended sphere of the republic has a consequence in the operations of politics. There will be commerce, and single district representation also. There will be the “multiplicity of interests.” But we must not neglect that as interests multiply they must affect more people. The consequence of that fact for the ancient distinction between the rich and the poor is a significant diminution in the numbers of the poor. The logic and dynamic of the extended commercial republic is precisely to squeeze rich and poor towards the middle.

The real impact of this constitutional design is to get rid of the struggle between the rich and the poor. The great American middle class is an historical oddity that has come to characterize all the modern world impacted by the industrial revolution and the principles of modern republicanism. This growing middle class is the basis of the unmixed constitution, a constitution founded on the middle class that turned almost into the only “class.” One of the most extraordinary things about the argument in the tenth essay, which is reflected as well in the fourteenth essay, is that it anticipates the nineteenth century debate about class and political life. Publius responded in advance, in effect, to the arguments of Marx and others, insisting that the United States need not have the rich overcome the poor or the poor overcome the rich. It could rather offer a social, economic, and political dynamic through which in fact those distinctions disappear in terms of their political significance.

Grant we must that what are called the super-rich do exist, as do the tabloid sheets that celebrate. But we do not view the rich, or even the super-rich as a class. Which is the reason that they can be just about anyone, from extraordinarily gifted athletes to people of very old money and families. They are isolated; they are individuals. They are not a class. In fact the only thing that distinguishes them today is their money. Otherwise they seem much like everybody else, and sometimes less. What matters is that this happened not by accident; it happened by a constitutional design that aimed to base the Constitution’s support on the strength of a very large middle class.

The claim, therefore, in the fourth paragraph of the fourteenth essay, that we have an umixed and extensive republic, goes to the very heart of the Antifederalist challenges to the Constitution and leads Publius to inquire in the paragraphs following, what are the limits of a democracy? and how are we supposed to calculate this? The question must be asked because we know that general arguments must be tested by practical limits. We cannot assume that there are no limits to representation as an approach, especially if we take seriously the task of “harmonizing and assimilating” differences. Differences must at least be kept to such a level that they are subject to being thus harmonized.

Publius provides a calculation in the fifth paragraph and those following. It is interesting because of what it says about 1787 technology and what it implies about the future. First, he describes the limits of democracy as a dynamic function: “the natural limit of democracy is that distance from the central point, which will just permit the most remote citizens to assemble as often as their public functions demand.”

The natural limit is the distance determined by public functions.  The natural limit of a republic is that distance from the center, which will barely allow the representatives of the people to meet as often as may be necessary for the administration of public affairs. Can it be said the limits of the United States exceed this distance? “It will not be said by those who recollect that the Atlantic coast is the longest side of the Union, that during the term of thirteen years, the representatives of the States have been almost continually assembled.”

To say that members of the Confederation Congress were “continually assembled” is a bit disingenuous; for although the Congress was almost constantly in session, one of the chief complaints about it was the notoriously poor attendance of delegates.

Publius then conducts a lesson in public geography, leading him to conclude that the ability to travel from any point, within a certain period of time (two weeks in 1787), to reach capital and conduct business, sets the allowable size of the system. This is a fairly mechanical definition, and it can be misleading. Not only does it not respond to the matter of harmonizing and assimilating, but it deflects attention from the ultimate basis of Publius’s judgment. The twelfth paragraph makes this clear, when Publius appeals to ties of affection to sustain “one great respectable and flourishing empire.”

In other words, Publius reminds us that we started with a Union, not with a theory on the strength of which we generated a Union. A theory may tell us that the Union is not too big for its britches, but that does not imply its indefinite extension. The condition for extending the Union is the continual existence of the Union. But that, in turn, would depend upon people accepting its principles, and first and foremost those principles enunciated in the Declaration of Independence.

Thus, two things operate simultaneously: first, the notion of the mechanical theory, the distance limit and, second, the moral limits, the moral distance. To the extent that we accomplish Union on the scale of the moral distance, it becomes possible by the mechanical theory to justify extending the reach of the Union, and not one bit farther.

W. B. Allen is Dean and Professor Emeritus of Michigan State University

 

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

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Friday, June 4th, 2010

The Federalist #28: Federalism and Rebellion

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

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

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

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

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

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

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

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

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

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

  1. Susan Craig says:

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

  2. Will Morrisey says:

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

    Or am I missing the point of your question?

  3. Billie says:

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

  4. Jimmy Green says:

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

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

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

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

  5. Susan Craig says:

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

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

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

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

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

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

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

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

    God Bless you for your willingness and courage,

    Janine Turner
    June 4, 2010

  7. yguy says:

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

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

  8. Will Morrisey says:

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

  9. Susan Craig says:

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

  10. Greg Zorbach says:

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

  11. yguy says:

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

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

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

  12. Susan Craig says:

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

  13. Roger Jett says:

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

 

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 28, 2010 – Federalist No. 44 – Restrictions on the Authority of the Several States, From the New York Packet (Madison) – Guest Blogger: Joerg Knipprath, Professor of Law at Southwestern Law School

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Monday, June 28th, 2010

Federalist 44 completes a series that examines specific grants of power to Congress. Madison identifies two classes of powers. One involves direct limits on the states; the other involves a direct grant to Congress and indirect limits on the states.

Among the first, Madison cites prohibitions—carried over from the Articles—against foreign policy by states, a practice that is inconsistent with even weak notions of union. A more significant innovation is the prohibition on the coinage of money and the use of paper currency (bills of credit). Such activities, he believes, can be carried out responsibly only by the national government, a conviction that, one trusts, would be shaken to its foundation were he alive today. His disquisition on the perils from profligate printing of paper money is illuminating:

“The loss which America has sustained since the peace, from the pestilent effects of paper money on the necessary confidence between man and man; on the necessary confidence in the public councils; on the industry and morals of the people, and on the character of republican government, constitutes an enormous debt against the states ….”

Why he believes that the federal government would be less scandalously addicted to easy money policies than states such as Rhode Island is difficult to fathom, and he undertakes no explanation. Presumably, he places his faith in the contest of interest groups spread throughout the large republic, especially debtors versus creditors, that would limit the likelihood of an extended “rage for paper money” that he condemned in Federalist 10. If so, he misjudges the effect on spending from “log-rolling,” “earmarks,” and patronage fostered by special interest groups and guarded by entrenched Congressional barons. Even if these factions were unlikely to influence the federal government individually, they quickly learned to act in concert, a habit that the pragmatic Framers either were derelict in ignoring or believed might be controlled through constitutional structures.

His explanation for the prohibitions of bills of attainder (legislative decrees of criminal guilt against an individual or group that were routinely used against political opponents in 16th and 17th century England) and of ex post facto laws (laws that retroactively criminalize conduct), as well as of laws that impair the obligation of contracts, is instructive. The last clause arose from experience with the practice by states to cancel public and private debts (at first those owed to British subjects, but later also obligations owed to American creditors) and to meddle otherwise in vested contract rights. A contentious topic at the Convention, Madison justifies the “contracts clause” as needed to combat economic distortions and social disturbance caused by persons seeking government support for their economic schemes: “[The people] very rightly infer, therefore, that some thorough reform is wanting, which will banish speculations on public measures, inspire a general prudence and industry, and give a regular course to the business of society.”

However, if such interferences with vested contracts were to originate in federal law, they would still be invalid. Like bills of attainder and ex post facto laws, they are so fundamentally destructive of security in one’s person and property, Madison writes, that they violate the “first principles of the [Lockean] social compact.” This raises an interesting point, one eventually taken up by the judiciary. If a constitution does not expressly address the legislature’s power to abridge a particular personal right, does that silence permit the legislature to limit that right? Or are there extra-constitutional limits on the discretion of the political majority, beyond those expressly enumerated in that constitution?

If appeal may be made to such extra-constitutional principles in political debate to prevent adoption of a law (which surely may be done), will such an appeal also lie in a judicial proceeding to declare the law unconstitutional once it is adopted (a much more dubious proposition)? If the answer to the last point is affirmative, exactly what principles may be considered, and how would the judge know? “First principles of the social contract” flows easily from the pen of the writer and the lips of the orator, but it is freighted with assumptions and epistemological uncertainties. Judges are chosen for their knowledge of the law, not their “wisdom” as political or moral philosophers, notwithstanding any contrary assertion by the occasional Supreme Court nominee.

Are same-sex marriage, polygamy, suicide, or abortion part of such “first principles”? We can be fairly certain of what Publius would have said. What about the right to pursue a calling or to run a business without a myriad of labor, environmental, and other regulations that dull initiative? The response of the Framers in 1780s republican mode (not in the then just-emerging “classic liberal” mode) might be surprisingly equivocating.

The second class of grants to Congress discussed in Federalist 44 includes the necessary and proper clause and the supremacy clause, topics already addressed by Hamilton in Federalist 33. The examination of the necessary and proper clause is a preview of the famous McCulloch v. Maryland case in 1819, considered by many the Supreme Court opinion with the greatest impact on American politics. The initial issue in McCulloch was Congress’s power to charter the Second Bank of the United States, a controversy that had begun even during the Articles with the debate over Robert Morris’s Bank of North America and persisted through the wrangling in George Washington’s cabinet in 1791 over Hamilton’s proposal for the First Bank of the United States.

Congress has no express power to charter corporations or banks. Echoing Publius, Chief Justice Marshall noted in McCulloch that every power to accomplish an end carries with it, by necessary implication, the power to adopt the means to achieve it. This is a fundamental principle of agency law, and Congress has been delegated certain tasks by the people. It is also an inherent aspect of government. But there is a flaw. The Constitution is not silent about those means.

Luther Martin, Maryland’s wily attorney general in McCulloch, argued instead that the necessary and proper clause provides an express definition of the means to be employed, thereby negating any theory of implied powers. He then claimed that “necessary and proper” requires a showing of indispensability. Marshall disagreed, ruling that “necessary” meant “convenient” or “appropriate.” His interpretation vastly expanded the constitutional discretion for Congressional action. In light of that ruling it is noteworthy that Madison describes the power conferred under that clause as “indispensably necessary” and equates this to those means that are “requisite,” which the dictionary defines as “essential.” One is left to speculate whether the role of the national government might be different today, had Martin’s—and, apparently, Madison’s—more restrictive definition prevailed..

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.  Prof. Knipprath has also spoken on business law and contemporary constitutional issues before professional and community forums.  His website is http://www.tokenconservative.com.

 

July 1, 2010 – Federalist No. 47 – The Particular Structure of the New Government and the Distribution of Power Among Its Different Parts, From the New York Packet (Madison) – Guest Blogger: John S. Baker, Dale E. Bennett Professor of Law at Louisiana State University

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Thursday, July 1st, 2010

Although mentioned in previous essays, Publius formally began to address separation of powers in Federalist # 47.  Together with ## 48 and 51, #47 explained the unique understanding of that principle as built into the Constitution. The Federalists and Anti-Federalists agreed that separation of powers was essential to liberty, but disagreed on what that required in a constitution. Unfortunately, over the last century, the term “separation of powers” has almost disappeared from the civic vocabulary in the United States and been replaced by the term “checks and balances,” a term with an overlapping, but different meaning.

Federalist #47 affirmed the principle upon which the Federalists and Anti-Federalists agreed: “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”  Thus, the Founders did not believe that voting alone guaranteed liberty.

It must come as a surprise to many Americans to learn that the Federalists and Anti-Federalists emphasized separation of powers as an absolutely essential guarantee of liberty.  For many — if not most – Americans, the protection of liberty is primarily accomplished through the Bill of Rights.  The Federalist and Anti-Federalists agreed on the need for separation of powers, but not for a bill of rights. The Anti-Federalists criticized the proposed Constitution for a lack of a bill of rights, but the Federalists actually contended “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.” Federalist #84.

Instead of mere “parchment barriers,” i.e. paper protections, the Framers presented a “well constructed Union.” Federalist ## 10 and 39 laid out the plan and purpose of the extended, (con)federal republic. Without separation of powers, however, that structure would have been insufficient to prevent the consolidation of power in the central government.  Both parts of the structure came under attack as contrary to fundamental principles of liberty. In #39, Publius admitted that if the plan of the Constitution actually did depart from the republican principle, it would be indefensible. He did likewise in #47, admitting that if the Constitution ”really [were] chargeable with this dangerous tendency to such an accumulation, or with a mixture of powers, having a dangerous tendency to such an accumulation, no further arguments would be necessary to inspire a universal reprobation of the system.”.

For separation of powers, as for the extended confederate republic, see Federalist # 9, Montesquieu was the authority appealed to by both Federalists and Anti-Federalists.  As with the extended (con)federal republic, Publius explained in # 47 that the claim that the Constitution violates the principle of separation of powers is mistaken.  Montesquieu relied on his understanding of the British Constitution to explain separation of powers.  Publius correctly observed that in the British Constitution “the legislative, executive, and judiciary departments, are by no means totally separate and distinct from each other.” Indeed, the British Constitution actually involved a “checks and balances” system, rather than one of separation of powers as understood by both the Federalists and Anti-Federalists.  That is to say, separation of powers as understood by Montesquieu and the Founders included a separate, co-equal judiciary.  Under the British (unwritten) Constitution, the judiciary has never been a separate, co-equal branch of government. Rather, at the time of our Founding, the British government involved a traditional governing system in which the one (the king), the few (the House of Lords), and the many (the House of Commons) checked and balanced each other.

Publius concluded that Montesquieu “did not mean that these departments ought to have no partial agency or no control over the acts of each other.”  (emphasis in the original) Rather, he said Montesquieu’s meaning “can amount to no more than this, that where the whole power of one department is exercised by the same hands which possess the whole power of another department, the fundamental principles of a free constitution are subverted.” (emphasis in the original).  He demonstrated the point by examining aspects of the British constitution, Montesquieu’s model.

Publius then considered the state constitutions.  He noted “that, notwithstanding the emphatical, and some instances, the unqualified terms in which this axiom has been laid down, there is not a single instance in which the several departments of power have been kept absolutely separate and distinct.” He addressed the constitutions of all but two of the states and quoted the “emphatical” language from a couple of them. While looking at the state constitutions in order to rebut the charge that the proposed Constitution violates separation of powers, Publius was not indicating that the state constitutions are an appropriate model for the new Constitution.

The last paragraph of #47 opened, stating “I wish not to be regarded as an advocate for the particular organizations of the several state governments.”  Indeed, the Framers created a government radically different from that of the state constitutions. In part, the differences were due to the fact of the federal constitution being one of limited powers, while the state constitutions have more general powers. In addition, however, the form of separation of powers in the federal Constitution differed significantly from that of the states.

In distancing himself from the state constitutions, Publius attempted to avoid giving offense by first offering a modicum of praise and an excuse for their deficiencies.  (“I am fully aware, that among the many excellent principles which they exemplify, they carry the strong marks of the haste, and still stronger of the inexperience, under which they were framed.). Nevertheless, Publius was clear that the state constitutions provided for separation of powers “on paper,” but not “in practice.” (“It is but too obvious, that, in some instances, the fundamental principle under consideration, has been violated by too great a mixture, and even an actual consolidation of the different powers; and in no instance has a competent provision been made for maintaining in practice the separation delineated on paper.”)

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

 

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 12 – Federalist No. 54 – The Apportionment of Members Among the States, From the New York Packet (Madison or Hamilton) – Guest Blogger: Joerg Knipprath, Professor of Law at Southwestern Law School

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Monday, July 12th, 2010

Although the essay’s authorship has been disputed, I am following the broad consensus that Madison wrote it along with the rest of the papers about the organization of the House.

James Madison was a Southern slaveholder. But one might never have surmised that from the curiously detached tone that Publius affects in Federalist 54 in talking about what “our southern brethren [might] observe” and “the reasoning which an advocate for the southern interests might employ,” which argument nevertheless “reconciles me to the scale of representation” adopted. Madison is recorded as having ambivalent feelings about slavery, but, then, most of the Southern elite did, judging by the moral handwringing that runs through many speeches and writings on the issue at the time. One need only look at Jefferson’s thoughts expressed in his Notes on the State of Virginia. The language used on such occasions was so similar that it has led the historian Forrest McDonald to opine that slaveowners developed a nearly rote disclaimer to cleanse the conscience before proceeding to whatever topic was truly at hand.

That said, Madison at least mentions the distasteful “s-word” in Federalist 54, an appellation that the Convention tied itself into euphemistic knots to avoid writing into the Constitution, as he delves into the connections among taxation, representation, and slavery. The first two, taxation and representation, have a long and pronounced relationship in Anglo-American political history and constitutional theory. The movement for independence from the British crown is tied to them through the motto “No taxation without representation” and the events that gave rise to it.

Taxation was seen by Englishmen, as well as Americans, as particularly threatening to individuals’ liberty. By having the potential to reduce people to penury and dependence, and because taking other people’s money for one’s own benefit is an especially strong temptation that mere mortals (even more so, political actors) find difficult to resist, taxation must be done only by consent of those taxed. English constitutional theory stylized this consent into representing a “gift from the commons,” as no one could be forced to share his wealth with others. Note that this applied to direct taxes on one’s person and wealth, not necessarily to indirect levies on voluntary transactions, such as duties on imports or excises on sales of goods. This class-based constitutional theory, made concrete against the King over three centuries, allowed the House of Commons (the only practical repository of popular consent) to bind the commons to pay taxes. The theory reflected the idea that the commoners were represented in the House as a class.

The Americans agreed with the English theory that consent was needed for a constitutional tax. They disagreed with the English theory of virtual representation, which held that the Americans were represented in Parliament as part of the body of commoners. Americans subscribed to a more concrete theory of direct constituent representation, that one was represented by another for whom one had a chance to vote, or at least in whose designated geographic domain one lived.

Recall that “representation” is a crucial aspect of American republicanism. In Federalist 10, Madison exalts representation as the republican principle that ties together the large geographic polity that is the United States without turning it into a tyranny. At the same time, representation, activated by the other republican principle, the vote, protects the political majority from falling victim to an entrenched oligarchy, while also protecting political minorities to some extent from the passing passions of an aroused majority.

But some aspects of republican theory are in tension with slavery—though clearly not in practice through the ages. Tying direct taxes, which reflect wealth and are assessed on the basis of the states’ populations, to representation is easy. Adding slavery to the mix threatens the symbiosis. Slaves are property, that is, wealth. But they are also manifestly human beings.

Direct taxes were imposed on the basis of population, not assessed land values, facts that are not definitively causally related. That could distort the burdens between different states, as Madison recognizes. States with less or poorer land but higher population densities (mostly in the North) would bear a burden proportionately greater than their opposites (mostly in the South). True, most Northern states permitted slavery at the time. The “peculiar institution” (under developing Anglo-American jurisprudence, slavery was not “natural” and could only exist under the peculiar positive enactments of a polity) was much more entrenched and extensive in the South, however.

The political conundrum, as Madison explains, was that the slave interests wanted to include slaves for purposes of representation. Northerners, already fearful that their region would lose relative power to the South due to the greater fecundity of Southerners and the expected greater immigration to the South because of the longer growing season and the claims to larger western territories, objected. At the same time, economic analysis of Southern wealth (of which land was both the most plentiful and the easiest to tax), would likely include the value of slaves (who were taxed as personal property, however).  To exclude slaves, which constituted a great part of the production of Southern wealth, from a wealth-tax census was particularly galling to Northerners. Southerners, on the other hand, argued that the truncated legal rights of slaves nevertheless did not deprive them of their status as “persons” for apportioning representation any more than the truncated rights of children and various others did.

The compromise was to assign to slaves a fractional value for both taxes and representation. That “3/5 clause” preserves the republican connection between representation and taxation, yet it also symbolizes the truncated pyramid of rights that composed the American system of slavery. That solution was not novel. It had been proposed as part of a failed amendment to the Articles of Confederation in 1783 and was part of the Pinckney and Paterson plans presented to the Convention. Nor was that the last time. The Convention was able to reach a compromise that eluded the 1829 Virginia state constitutional convention, at which the elderly Madison tried to push through a 3/5 compromise to settle a simmering conflict over apportionment between the non-slave holding western counties and the slave-holding eastern counties. The eastern planters wanted slaves fully counted, while the western yeomen wanted them excluded. The planters won. That was yet another grievance of powerlessness to be nursed by the residents of what would become West Virginia in 1862, after Virginia seceded from the Union.

Direct taxes have not been used by the federal government. They are difficult to process, as they are assessed against the states, which likely would have to collect them like requisitions under the Articles. Some, such as ancient head taxes, are deemed unfairly regressive. The recent health care law’s individual penalty has the whiff of such a tax and may, therefore, be apportioned unconstitutionally under that law. Federal land taxes are also politically impractical because they penalize population-rich, property-poor states. That said, the targets of wealth taxes are difficult to hide, which is why states and localities still use them.

Federal taxes are usually “indirect” (on conduct through excises and duties on sales or purchases of goods or services) or are income taxes. The last are difficult to assess accurately because income can be hidden. Sales cannot be hidden as easily, and such levies are easy to collect. That is also a feature of the much-discussed value-added tax. On the other hand, the final purchase price can mask the full amount of the VAT, making the tax’s opaqueness a troublesome consequence to the consumer.

The slave holders among the Founders have been accused rather too easily of hypocrisy and posturing for their public attachment to equality, as represented in the Declaration of Independence. The meaning of “equality” is much more complex. We, too, have different understandings of equality. Current conflicts between equality of opportunity versus equality of outcome versus equality of condition are an example. Hypocrisy requires a conscious rejection of principles of right behavior that one espouses. Falling short of one’s professed principles (when one still accepts their rightness) is not hypocrisy. Nor can we accuse the Founders of hypocrisy if their understanding of the principles differed from ours.

Only a few interpretations of equality, not generally so understood by the public at the time, might condemn slavery. Mostly, a general appeal to equality was not inconsistent with maintaining the institution of slavery. The Declaration is clearly rooted in modified Lockeanism. For Locke, basic political equality meant that all were created equal in the sense that none had the natural or divinely-created right of absolute rule over others. The Declaration, with its “consent of the governed” language in immediate proximity to the equality language, bears out this limited understanding of equality. Lack of a natural or divinely-ordained political right to rule does not necessarily foreclose an inequality imposed by peculiar laws (as Madison recognizes in his essay), or in non-political matters.

Equality in the religious society of the Founding meant theological equality before God and metaphysical equality in that all humans were moral actors (as Madison notes regarding slaves) who had to perform moral duties imposed by God and nature. God would judge personal failings in another life. This interpretation, as well, is not inconsistent with slavery on Earth.

Even a view of the term as meaning equality before the law was not incompatible with slavery. As Madison writes in Federalist 54, the slave codes provided a truncated set of legal protections for slaves. These codes became quite exhaustive over time. True, slaves lacked some of the rights of freemen (including, obviously, some crucial ones from our perspective). But so did women, children, indentured servants, criminals, the insane, and others. No one would have considered that this meant those groups were not “created equal” at a sufficiently high level of abstraction.

Americans as a group were not particularly outraged at that time about slavery because it was so common an institution in history and in their society. More immediately, the practice of the institution in the 1780s was comparatively mild, especially in contrast to the abject conditions from which many Americans had emigrated in the not-distant past. Some Americans professed concern. Thomas Jefferson wrote, musing about slavery, “I tremble for my country when I reflect that God is just.” Forrest McDonald responds, “But few of his countrymen trembled with him.”

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.  Prof. Knipprath has also spoken on business law and contemporary constitutional issues before professional and community forums.  His website is http://www.tokenconservative.com

 

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

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Thursday, July 22nd, 2010

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

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

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

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

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

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

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

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

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

With this outline in hand, consider Federalist #62.

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

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

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

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

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

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

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