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Tuesday, April 30, 2013 – Essay #52 – The Alabama Slave Code of 1852 – Guest Essayist: William C. Duncan, Director of the Marriage Law Foundation

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Chattel slavery in the United States, because of its manifest injustice, was always morally tenuous. As opposition to slavery grew in the United States in the early Nineteenth Century, the states in which slavery was allowed adopted more and more draconian policies to prop up the institution. An example is the Alabama Slave Code of 1852.

Such codes help us understand the meaning and intent of the Fourteenth Amendment enacted after the Civil War to guarantee full citizenship to freed slaves and to end the practice of extending (or, more properly, denying) constitutional protection by race.

The 1852 slave code is virtually an anti-Bill of Rights. Read more

Thursday, April 25, 2013 – Essay #49 – The Missouri Compromise – Guest Essayist: William C. Duncan, Director of the Marriage Law Foundation

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The Missouri Compromise

William C. Duncan, Director of the Marriage Law Foundation

In our day, it is common, indeed expected, for the United States Supreme Court to strike down laws passed by Congress as unconstitutional. In the first decades of the United States, however, this was an exceedingly rare practice. In fact, in 70 years, the Court struck down only two federal laws as unconstitutional. The second of these was the Missouri Compromise.

The Compromise was legislation that arose out of a controversy about extending slavery into the northern parts of the territory acquired during the Louisiana Purchase.  The legislation “admitted Missouri as slave state but otherwise prohibited slavery Read more

Monday, April 1, 2013 – Essay #31 – Letter to James Madison by George Washington – Guest Essayist: William C. Duncan, Director of the Marriage Law Foundation

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George Washington’s elegant and courteous letter to James Madison illustrates what America’s most eminent man thought about the existing government, or more properly, the need for reform of the system just prior to the Constitutional Convention of 1787 (as well as providing sage counsel about moderation in dealing with civil unrest and integrity in foreign relations, among other matters).

For Washington, the need for reform centered in the “inadequacy of the powers under which [the Confederation Congress] acts.” Read more

Wednesday, February 20, 2013 – Essay #3 – The Letter to Henry Lee by Thomas Jefferson – Guest Essayist: William C. Duncan, Director of the Marriage Law Foundation

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Letter to Henry Lee (May 8, 1825) 

In his 1825 letter to Henry Lee, Thomas Jefferson lays out the “object” of the Declaration, the origins of the “self-evident” principles it outlines, and the nature of its authority.

The “object of the Declaration of Independence,” he explains, was to “appeal to the tribunal of the world” with a justification of the decision “to resort to arms for redress” in response to “the acts of the British government contravening” the rights of Americans. This purpose is clear in the vast bulk of the Declaration that carefully lists these abuses and explains the means, short of war, Americans took to gain redress. Read more

June 1, 2012 – Essay #75 – Amendment XXIV, Section 1 – Guest Essayist: William C. Duncan, Director of the Marriage Law Foundation

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Amendment XXIV, Section 1:

The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax.

In an effort to circumvent the Fifteenth Amendment’s requirement that the States not deprive a citizen of the right to vote based on race, in the decades from 1890 to 1910 some States began implementing various requirements which were purportedly neutral regarding race but which had the (intended) effect of preventing black citizens from voting. One of the requirements was a poll tax, a specific fee for voting that prevented the poor from voting. (Often the laws were written in a way that would allow white citizens to vote without paying the fee or implemented in this way, such as where a politician bought votes by paying poll taxes for the voters.)

As the moral wrongness of this kind of restriction became harder to deny, States began to remove some of these requirements. Some States had repealed their poll taxes by World War II and others removed them for soldiers in the 1940s. As the national government became more involved in promoting civil rights and ending racial discrimination in the 1950s, the number of states with poll taxes was down to five (Alabama, Arkansas, Mississippi, Texas, and Virginia).

In 1959, the report of the Commission on Civil Rights (created by the Civil Rights Act of 1957) suggested a national law to allow all Americans to vote subject only to age and residency requirements. One result was the proposal of an amendment to the Constitution to specifically prohibit the imposition of poll taxes. President John F. Kennedy supported the “uncontroversial” amendment. The lack of controversy stemmed from the fact that only five States had such taxes.

Federal courts had previously held poll taxes were not prohibited by the Constitution, so an amendment was necessary. Congress proposed the amendment in August 1962 and it was ratified less than a year and a half later in January 1964.

The Twenty-fourth Amendment only applied to federal elections but not long after its ratification, the U.S. Supreme Court ruled that poll taxes in State elections were unconstitutional because they discriminated against the poor. Harper v. Virginia State Board of Elections, 383 U.S. 663 (1966) at http://scholar.google.com/scholar_case?case=10289081725638058283&q=harper+v.+virginia+state+board+of+elections&hl=en&as_sdt=2,45&as_vis=1.

Virginia passed a law which gave voters a choice between paying the poll tax “or filing a certificate of residence six months before the election.” Congressional Research Service, “Abolition of the Poll Tax” at http://www.gpo.gov/fdsys/pkg/GPO-CONAN-2002/pdf/GPO-CONAN-2002-9-25.pdf. The U.S. Supreme Court ruled this law conflicted with the new amendment because it created a significant barrier to voting as the only alternative to paying the poll tax. Harman v. Forssenius, 380 U.S. 528 (1965) at http://scholar.google.com/scholar_case?case=1269987767365696368&q=harman+v.+forssenius&hl=en&as_sdt=2,45&as_vis=1.

Additional source: Alexander Keyssar, The Right to Vote: The Contested History of Democracy in the United States (Basic Books: 2000)

 

 

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

 

 

May 24, 2012 – Essay #69 – Amendment XX, Section 4 – Guest Essayist: William C. Duncan, Director of the Marriage Law Foundation

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Amendment XX, Section 4:

The Congress may by law provide for the case of the death of any of the persons from whom the House of Representatives may choose a President whenever the right of choice shall have devolved upon them, and for the case of the death of any of the persons from whom the Senate may choose a Vice President whenever the right of choice shall have devolved upon them.

The Twentieth Amendment (ratified in 1933) addresses two issues—lame duck Congresses and presidential succession. In regards to the latter, the amendment provides for a number of different eventualities with the basic theme being an attempt “to smooth out additional succession wrinkles.” Akhil Reed Amar, “Presidents, Vice Presidents, and Death: Closing the Constitution’s Succession Gap” Arkansas Law Review, vol. 48, p. 215 (1995).

Section 4 addresses a longshot eventuality but one that is certainly not inconceivable. For this section to be invoked, two things must happen. First, a presidential election would have to produce no clear winner because none of the candidates had an Electoral College majority. In this circumstance, the Constitution empowers the House of Representatives to determine the winner. Second, one of the major candidates would have to die before the election controversy was resolved. The second has never happened but the first has occurred twice in our nation’s history.

In 1824, four candidates divided the Electoral College votes with Andrew Jackson securing the most at 99. Since none had a majority, the House of Representatives chose from the top three candidates (as required by the Twelfth Amendment) and essentially between Jackson and John Quincy Adams (who received 84 Electoral College votes). The House selected Adams 13-11 (voting was by state delegation). See John Sacher, “The 1824 Election: The Corrupt Bargain?” Franklin’s Opus, February 24, 2012 at http://franklinsopus.org/2012/02/the-1824-election-the-corrupt-bargain/.

In 1876, Samuel Tilden won the popular vote for president with 51% to 48% for Rutherford Hayes. Tilden, however, received only 184 Electoral College votes, one shy of the needed majority. Twenty Electoral College votes from four States were in dispute; precisely the number Hayes would need to become president. Congress created an independent Electoral Commission with fifteen members—five senators, five representatives and five justices of the U.S. Supreme Court. The Commission met in the Supreme Court’s chambers and heard arguments about the various state Electoral College votes. The Commission voted to give Florida’s votes to Hayes 8-7. The legislation creating the Commission required both houses of Congress to reject Commission rulings if the rulings were to be invalidated. Thus, while the House rejected the Commission rulings on Florida, and later Louisiana, Oregon and South Carolina, since the Senate voted to uphold them, the Commission’s decisions stood and Hayes was awarded all of the disputed Electoral College votes making him president. A last minute filibuster by House Democrats failed and in the early morning of March 2, 1877 Hayes was awarded the presidency with a one-vote Electoral College majority. The inauguration was held three days later. See “Finding Precedent: Hayes v. Tilden: The Electoral College Controversy of 1876-1877” Harper’s Weekly at http://elections.harpweek.com/09Ver2Controversy/Overview-1.htm.

Assuming this scenario was to occur again and one of the candidates tragically dies, section 4 empowers Congress to enact legislation that would determine what should happen.

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

 

May 17, 2012 – Essay #64 – Amendment XVIII, Section 2 – Guest Essayist: William C. Duncan, Director of the Marriage Law Foundation

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Amendment XVIII:

Section 1: After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation

Section 2: The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.

Amendment XVIII, Section 2

The Prohibition amendment only lasted in force for fourteen years from 1920 to 1933 (though it was ratified in 1919 by its terms it did not become effective until one year later) remains the only amendment to have been repealed in its entirety. The substance of the amendment has already been addressed so is there any more to learn from this footnote in constitutional history?

There is one important lesson we can learn from the amendment’s enforcement section about federalism and the respective roles of the national and state governments

Section two of the 18th Amendment provides: “The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.” This language is unique among the constitutional amendments. Beginning with the Civil War Amendments, drafters often began to include some kind of enforcement language in amendments, typically specifying that Congress could pass legislation to ensure the amendment’s intent was carried out. The 18th Amendment provided for “concurrent” jurisdiction between the national government and the States.

The concept of jurisdiction is central to our constitutional system. Because we have a federal system, with authority and responsibility divided between two different entities—the national government and the States—and because ours is a government of enumerated powers in which the Constitution gives to the national government authority to do only what that document specifies it may do, a grant of authority to carry out a new role must be specified in an amendment to the Constitution unless the amendment’s effect is self-executing.

The significance of the enforcement provision of the 18th Amendment is first that is specifies the branch of the national government responsible for enforcement is Congress and that it is to carry out this responsibility through legislation. Even this Progressive Era enactment respected the separate roles of branches of the national government. Consistent with every other aspect of the Constitution, this amendment was to be made effective not by judicial opinion or administrative branch lawmaking. So, the 18th Amendment reminds us that under the United States Constitution lawmaking is the prerogative of the legislative branch.

Second, the amendment specified that Congress will be exercising power concurrently with the States. Since the States had already been making alcohol policy previous to the 18th Amendment, it is clear that the amendment’s proponents recognized their inherent power to do so and only amended the Constitution so as to provide a new power of Congress; a power that (a) it did not have before and (b) it could not have unless specifically provided (enumerated) by an addition to the Constitution.

Thus, though the amendment is no longer enforceable it still provides a helpful reminder of the way in which our system is intended to function. While the powers of the national government and to be “few and defined” (Federalist 45), the states are free to do whatever they are not specifically prohibited from doing by the Constitution or the reserved powers of the people themselves.

Even the most cursory glance at current political controversies would remind us of exactly how important this reminder is.

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

 

April 4, 2012 – Essay # 33 – Amendment VIII: Right to Reasonable Bail – Guest Essayist: William C. Duncan, Director of the Marriage Law Foundation

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http://vimeo.com/39746844
Amendment VIII:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Amendment VIII: Reasonable Bail

After arrest, a criminal defendant can be released if he offers some security to ensure he will appear at trial. The release and required security are called bail. Bail protects “the defendant’s interest in pretrial liberty and society’s interest in assuring the defendant’s presence at trial.” The idea is to set bail high enough that the person charged with a crime would not want to risk forfeiting it by refusing to show up at trial but not so high that a person can’t pay and go about life as normally as possible during the interim between arrest and trial. Other considerations will be the risk that the defendant would commit the same crime again while on bail. Donald B. Verrilli, Jr., “The Eighth Amendment and the Right to Bail: Historical Perspectives” Columbia Law Review, vol. 82, p. 328 (1982).

In some circumstances, the crime is so serious or the risk that the defendant would flee so great that bail would be entirely denied. For instance, in the past month or so, a British citizen accused of facilitating weapons shipments to Iran was denied bail (http://www.forbes.com/sites/walterpavlo/2012/03/05/extradited-u-k-citizen-chris-tappin-denied-bail/) as was the doctor accused of causing the death of a pop musician (http://abcnews.go.com/US/michael-jacksons-doctor-conrad-murray-denied-bail/story?id=15784437#.T3C6BTFBt2A).

The disputes lingering from the English Civil War and simmering religious hostility led to the “abdication” (actually flight from England after it was invaded by William of Orange at the request of some of the English nobility) of James II as King of England in 1688. When Parliament formally invited William and Mary to reign as joint monarchs, they drafted the Bill of Rights of 1689 (http://avalon.law.yale.edu/17th_century/england.asp) as a formal statement of the rights of Englishmen they expected the new monarchs to respect and protect. They also laid out some complaints against James including: “excessive bail hath been required of persons committed in criminal cases, to elude the benefit of the laws made for the liberty of the subjects.” They thus specified, “That excessive bail ought not to be required.”

Thus, the American colonists would have had an expectation, as Englishmen, of protection from excessive bail. The 1776 constitutions of a number of states specified protection of this right. The constitutions of Virginia, Delaware, and Pennsylvania enacted that year all prohibited “excessive bail.”

Given this history, it is not surprising that when James Madison was compiling proposals for a national Bill of Rights he would have included this requirement in what became the Eighth Amendment.

Of course, the key word is “excessive.” Requiring $1 million bail before releasing the celebrity who gets himself arrested on government property to draw attention to a cause is probably excessive. Someone charged of a string of armed bank robberies, however, could probably expect that kind of bail if flight risk is a consideration (although he may be able to afford it if guilty).

A recent news story (http://www.syracuse.com/news/index.ssf/2012/03/judge_questions_then_lowers_1.html) describes a situation where a man was stopped for traffic violations, searched and when a loaded weapon was found in his car, charged with felony gun possession crime. The bail was set at $1,000,000; another judge questioned that amount and the prosecutor asked for $50,000. The judge set bail at $10,000. Obviously, what some government officials find “excessive” will vary.

The Framers would insist that judges employ common-sense and fairness. That’s more likely where lawbreaking is not widespread and where citizens hold their leaders to account. Thus do rights on paper become rights in fact.

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

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March 23, 2012 – Essay #25 – Amendment VI: Right to a Public Trial – Guest Essayist: William C. Duncan, Director of the Marriage Law Foundation

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http://vimeo.com/39033167

Secret trials are the stuff of nightmares and a hallmark of a totalitarian state. The U.S. Supreme Court has noted that institutions employing secret trials “symbolized a menace to liberty.” In re Oliver, 333 U.S. 257, 269 (1948).

When the Framers of the Sixth Amendment included the requirement of a “public” trial, they were enshrining a longstanding protection of liberty. William Blackstone, a bestseller in the Framing era, noted public trials dated back to the Roman Republic. England had public trials before the Norman Conquest and a “right” to a public trial seems to have existed in the 1600s. The important American treatise writer, Joel Bishop suggested the right in the Sixth Amendment is attributable to “immemorial usage.” Richmond Newspapers v. Virginia, 448 U.S. 555, 565-568 (1980); Harold Shapiro, “Right to a Public Trial” 41 Journal of Criminal Law & Criminology 782 (1951).

The right is borrowed from the common law of England and contrasts with the civil law system (more common in Europe) which allows for private examination of witnesses. The Pennsylvania and North Carolina constitutions of 1776 both provided for open trials. There was little discussion of the provision in the debates over the Sixth Amendment. In re Oliver, 333 U.S. 257, 269 (1948); Max Radin, “The Right to a Public Trial” 6 Temple Law Quarterly 381 (1931).

For the individual being tried a public trial provides crucial protections. Quoting In re Oliver again: “the guarantee has always been recognized as a safeguard against any attempt to employ our courts as instruments of persecution. The knowledge that every criminal trial is subject to contemporaneous review in the forum of public opinion is an effective restraint on possible abuse of judicial power.” Page 270. Having proceedings out in the open provides “assurance that the proceedings were conducted fairly to all concerned” and discouraged “decisions based on secret bias of partiality.” Richmond Newspapers v, Virginia, 448 U.S. 555, 569 (1980).

For society at large public trials also serve valuable purposes. They discourage lying by witnesses (since someone who knows the truth could be in the courtroom), discourage bad behavior by participants, and provide an education on the legal system.

Put more simply, everyone (judge, attorney and witnesses alike), is likely to be on their best behavior when they know they are being observed. This is why parents whisper (or hiss) when they threaten their children at the grocery store.

This is a serious matter, though. In 1948, the Supreme Court could note: “we have been unable to find a single instance of a criminal trial conducted in camera [meaning in the judge’s chambers and not in open court] in any federal, state, or municipal court during the history of this country.” In re Oliver, page 266. That same year, an American citizen was arrested in Czechoslovakia and convicted of espionage in a secret trial ultimately escaping in 1952. Ken Lewis, “Leaving an Imprint” St. Augustine Record, September 26, 2003 at http://staugustine.com/stories/092603/new_1830364.shtml.

How many Americans have been spared a similar fate because of the wisdom of the Framers? Yet another debt of gratitude we owe them.

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

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March 13, 2012 – Essay #17 – Amendment IV: Warrants Must Describe the Place and Persons With Particularity – Guest Essayist: William C. Duncan, Director of the Marriage Law Foundation

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http://vimeo.com/38416219

Amendment IV:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularity describing the place to be searched, and the persons or things to be seized.

Amendment IV: Particularity of Warrants

Limitation of the power of the government is not one of many possible approaches to governing under the U.S. Constitution. It is the very structure of the Constitution itself. Our Constitution is primarily a limitation on what the government it charters can do. The first ten amendments constituting the Bill of Rights, in particular, are not affirmative grants of privileges from a beneficent state to its subjects but a restrain on government in the interest of protecting the preexisting rights of citizens,

The structure of the Fourth Amendment, for instance, makes clear that the Framers understood the rights it protected from the government to be existing rights. This is consistent with the Framers’ entire approach to constitutional government, an approach informed by careful study of history and, specifically, their own experience in self-government and its opposites. Much of that experience, of course, was gained as subjects of the British Crown and in the effort to respond to abuses of English power in the colonies, ultimately leading to the decision to seek independence.

The decision to include in the first set of amendments to the U.S. Constitution, a requirement of particularized warrants is a key example.

The primary relevant experience of the Framers on this matter came from the general warrants, called writs of assistance, used by the British to conduct wide-ranging searches for contraband in the colonies. A writ of assistance is court permission for government officials to conduct a generalized search, for instance for goods on which customs fees have not been paid. They contrasted with a more specific search warrant that would specify who, what and where to be searched in some detail. The practical effect of the difference should be obvious. If a government official is allowed by court to go into all the homes on a block looking for anything on which taxes have not been paid, you have a significant intrusion. If the court instead says that these officials can go to 555 Whatever Lane and look for money that has been stolen from the downtown bank, the intrusion is dramatically less.

The use of writs of assistance in the colonies provoked understandable protect. John Dickinson, in his 1767 Letters from a Farmer in Pennsylvania, noted the act of Parliament allowing for these writs empowered customs officers to “to enter into any HOUSE, warehouse, shop, cellar, or other place, in the British colonies or plantations in America, to search for or seize prohibited or unaccustomed goods [meaning goods on which no customs had been paid].” He pointed out that while those kinds of writs had also been issued in England, “the greatest asserters of the rights of Englishmen have always strenuously contended, that such a power was dangerous to freedom, and expressly contrary to the common law, which ever regarded a man’s house as his castle, or a place of perfect security.” Thus, Dickinson argued: “If such power was in the least degree dangerous there, it must be utterly destructive to liberty here.”

The experience of the colonists with these practices bore fruit in the newly independent States. The 1776 Virginia Declaration of Rights, the Maryland Constitution of the same year and John Adams’ 1780 Constitution for Massachusetts all required that warrants for searches and seizures be specific in describing the place to be searched and the subjects of the search or seizure.

These precedents, of course, were adopted in the drafting of the Fourth Amendment, the language of which clearly prohibits the broad-wide-ranging searches so abhorrent to the colonists. It does so by allowing only search warrants “particularly describing the place to be searched, and the persons or things to be seized.” This is the particularity clause.

A Connecticut case from the early Nineteenth Century exemplified the type of warrants the Fourth Amendment was created to prevent: “it is not only a warrant to search for stolen goods supposed to be concealed in a particular place, but it is a warrant to search all suspected places, stores, shops and barns in Wilton. Where those suspected places were in Wilton is not pointed out, or by whom suspected: so that all the dwelling-houses and out-houses within the town of Wilton were by this warrant made liable to search.” (Grumon v. Raymond, 1 Conn. 40, 1814.

Today we would be shocked if a court were to authorize police to search an entire town for stolen goods. Yet, these kinds of warrants were commonly allowed in England prior to American Independence and seem to have been issued even into the 1800s here. What happened to change the legal culture?

Part of the answer is the Framers’ ability to apply what they had learned from experience. Americans had experienced the oppression of broad, intrusive searches and this led them to reject these as a proper instrument of government. They then ensured the lessons learned were reflected in the law through the Fourth Amendment.

The Framers wrought well and we are the inheritors of their wisdom in limiting the power of government. The English may have noted that the home is a case but the Fourth Amendment’s particularity requirement helped to give that concept the binding force it needed to be a reality.

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

March 1, 2012 – Essay #9 – Amendment I: Right to petition the Government for a redress of grievances – Guest Essayist: William C. Duncan, Director of the Marriage Law Foundation

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It is a commonplace to trace the origins of the right to petition the government for a redress of grievances to Magna Carta in 1215. There, Barons displeased with King John’s pretension to absolute, forced him to agree to specific limitations on his authority in deference to that of the nobility. Chapter 61 of the Great Charter (http://www.constitution.org/eng/magnacar.htm) provides:

Since, moveover, for God and the amendment of our kingdom and for the better allaying of the quarrel that has arisen between us and our barons, we have granted all these concessions, desirous that they should enjoy them in complete and firm endurance forever, we give and grant to them the underwritten security, namely, that the barons choose five and twenty barons of the kingdom, whomsoever they will, who shall be bound with all their might, to observe and hold, and cause to be observed, the peace and liberties we have granted and confirmed to them by this our present Charter, so that if we, or our justiciar, or our bailiffs or any one of our officers, shall in anything be at fault towards anyone, or shall have broken any one of the articles of this peace or of this security, and the offense be notified to four barons of the foresaid five and twenty, the said four barons shall repair to us (or our justiciar, if we are out of the realm) and, laying the transgression before us, petition to have that transgression redressed without delay. [Emphasis added]

Philip Kurland and Ralph Lerner’s invaluable The Founders’ Constitution contains in its section on the First Amendment the report (http://press-pubs.uchicago.edu/founders/documents/amendI_assemblys6.html) of the 1688 “Trial of the Seven Bishops for Publishing a Libel.” The bishops were accused of libel when they attempted to petition King James II in protest of his declaration of limited religious freedom for Catholics and other dissenters from the Church of England. They were found not guilty after a trial in the Court of King’s Bench in which Justice Holloway told the jury:

Gentlemen, the end and intention of every action is to be considered; and likewise, in this case, we are to consider the nature of the offence that these noble persons are charged with; it is for delivering a petition, which, according as they have made their defence, was with all the humility and decency that could be: so that if there was no ill intent, and they were not (as it is not, nor can be pretended they were) men of evil lives, or the like, to deliver a petition cannot be a fault, it being the right of every subject to petition. If you are satisfied there was an ill intention of sedition, or the like, you ought to find them guilty: but if there be nothing in the case that you find, but only that they did deliver a petition to save themselves harmless, and to free themselves from blame, by shewing the reason of their disobedience to the king’s command, which they apprehended to be a grievance to them, and which they could not in conscience give obedience to, I cannot think it is a libel: it is left to you, gentlemen, but that is my opinion.

The 1689 Bill of Rights (http://www.fordham.edu/halsall/mod/1689billofrights.asp) explicitly protected “the right of the subjects to petition the king” and said “all commitments and prosecutions for such petitioning are illegal.”

By the time the first amendments to the new United States Constitution were being considered in 1789, the right to petition was well established in U.S. practice. The colonies had widely recognized and employed the right of citizens to petition their government. The Declaration of Independence (http://www.archives.gov/exhibits/charters/declaration_transcript.html) singled out the Crown’s treatment of colonists’ petitions for redress (“Our repeated Petitions have been answered only by repeated injury.”) in its list of grievances. The debate over the initial proposal of the First Amendment recognition “that these rights belonged to the people” and the drafters “conceived them to be inherent; and all that they meant to provide was against their being infringed by the government.” The First Amendment’s explicit protection of the right from Congressional interference was not a novel development.

After John Quincy Adams left the presidency in 1829, he became embroiled in the most significant right of petition controversy in U.S. history. He had been elected to Congress and began presenting petitions in behalf of citizens calling for the abolition of slavery in the District of Columbia. In the 1830s, a swelling number of petitions from abolitionists were being presented to Congress and the practice at that time of considering all petitions made the growing number seem unmanageable to some. Additionally, defenders of slavery preferred to silence the clamor over the terrible practice. In 1836, Congress adopted (117-68) a resolution: “That all petitions, memorials, resolutions, propositions, or papers, relating in any way or to any extent whatever, to the subject of slavery, or to the abolition of slavery, shall, without being printed or referred, be laid upon the table, and that no further action whatever shall be had thereon.” Adams called this new “gag rule” “a direct violation of the constitution of the United States, the rules of this House, and the rights of my constituents” and worked for eight years to see it repealed. In 1844, Representative Adams moved a resolution to revoke the rule (which had become a standing rule in 1840) that was adopted 108-80. This marked the high water mark of petitioning and in the aftermath, the right was “little exercised in the aftermath of the gag rule.” David C. Frederick, “John Quincy Adams, Slavery, and the Right of Petition” 9 Law & History Review 113 (Spring 1991).

These stories trace in broad outlines the “rise and fall” of the petition right; more accurately, the slow development, acceptance and constitutionalization, and relatively swift descent into disuse of this valuable right. Since the antebellum period, the right of petition has been largely neglected, though it is occasionally the subject of litigation and the U.S. Supreme Court decided a petition clause case, Borough of Duryea v. Guarnieri, in 2011 (http://www.supremecourt.gov/opinions/10pdf/09-1476.pdf).

Joseph Story describes the petition right as resulting “from the very nature of [the] structure and institutions” of “a republican government.” (Joseph Story, Commentaries on the Constitution, vol. 3, §1887 at http://www.constitution.org/js/js_344.htm) This comment may provide a clue to the relative disuse of the right since the Civil War. With the extension of the franchise to more and more Americans, the ability to directly communicate desires and disapproval to elected representatives by voting and through political parties, has probably eclipsed the importance of petitioning. Coupled with the enhanced status of the right of free speech and advances in communications technology, which fill many of the practical roles (such as providing information to legislatures and allowing citizens to express their opinions) that formal petitions served, the practice of petitioning Congress is not likely to make a resurgence.

This is not to say that the principles it protected are not still vital. The tendency of courts and the executive branch to make decisions previously understood to be only the province of the legislature, threaten the principles of representative government and can serve to exclude all but the most well-connected from influencing government. A proper understanding of what the right to petition was meant to protect could be a helpful spur to citizens to insist that its spirit—the ability of citizens to affect the legislative process—be respected and re-enthroned as a foundation of constitutional government.

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

William C. Duncan, Director of the Marriage Law Foundation and author of our “90 in 90” Article I, Section 2, Clause 4 Essay, Interview with Janine Turner on the Janine Turner Radio Show

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William C. Duncan, Director of the Marriage Law Foundationand author of our “90 in 90” Article I, Section 2, Clause 4 essay, visits with Janine Turner on the Janine Turner Radio Show, on Saturday, August 13, on DFW’s KLIF!

Read Mr. Duncan’s essay here: http://constitutingamerica.org/?p=723

June 22, 2011 – Amendment XXV of the United States Constitution – Guest Essayist: William C. Duncan, Director of the Marriage Law Foundation

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Amendment XXV

1: In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.

2: Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.

3: Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.

4: Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.

 

Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty eight hours for that purpose if not in session. If the Congress, within twenty one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty one days after Congress is required to assemble, determines by two thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office.

The 25th Amendment, ratified in 1967, answers open questions about presidential succession.

What happens when the president dies in office?

Under Article II, if the president is removed, dies, resigns or is unable to perform his duties, these duties fall to the vice president (section 1, clause 6). Alexander Hamilton said a vice president “may occasionally become a substitute for the president” (Federalist 68). While this seems clear, the exact status of the vice president when taking on the president’s duties or acting as a “substitute” was not certain. When William Henry Harrison died of pneumonia in 1841, Vice President John Tyler insisted on becoming the president rather than just an “acting president” as some urged. See Mark O. Hatfield, Vice Presidents of the United States, 1789-1993 (1997) at http://www.senate.gov/artandhistory/history/resources/pdf/john_tyler.pdf. All eight of the vice presidents who assumed the presidency on the death of the president followed this precedent.  Section One of the 25th Amendment formalized the precedent, specifying that if the president is removed, dies or resigns “the Vice President shall become President.”

What happens if there is a vacancy in the vice presidency?

The eight times a president died in office and the vice president became president there was a vacancy in the vice presidency, as occurred also when seven vice presidents died in office and two resigned. See John D. Feerick, “Presidential Succession and Inability: Before and After the Twenty-Fifth Amendment” 79 Fordham Law Review 907, 943-944 (2010). The Congressional Research Service notes, “for some twenty percent of United States history there had been no Vice President to step up.” CRS Annotated Constitution, “Twenty-fifth Amendment” at http://www.gpoaccess.gov/constitution/pdf2002/043.pdf.  Section Two of the 25th Amendment provides the solution for these instances by allowing the president to nominate individuals to fill vacancies in the vice presidency. The person nominated can take office when a majority of the House and Senate confirmed the nomination. Gerald Ford (in 1973) and Nelson Rockefeller (in 1974) became vice presidents following this procedure.

What happens if the president knows he or she cannot fulfill the duties of the presidency?

The Constitution did not specify the procedure to follow in the case of a president being incapacitated. If the president knows of the incapacitation beforehand, as in a planned medical procedure, section Three of the 25th Amendment allows the president to notify the President pro tempore of the Senate and Speaker of the House that the Vice President will be Acting President during a period when the president cannot fulfill the duties of that office. When ready to resume the duties, the president notifies these same officials. President George W. Bush invoked this portion of the Amendment twice for routine medical procedures.

What happens when the president is incapacitated but cannot or will not step aside and let the vice president act as president?

Before his death by assassination, President James A. Garfield lived in a coma for eighty days. President Woodrow Wilson had a debilitating stroke a year and a half before the end of his final term. President Dwight D. Eisenhower experienced a heart attack and stroke while in office. See Calvin Bellamy, “Presidential Disability: The Twenty-Fifth Amendment Still an Untried Tool” 9 Boston University Public Interest Law Journal 373, 376-377 (2000). Until, the ratification of section four of the 25th Amendment there was no Constitutional direction for handling situations where the president could not function and could not or would not step aside. Now, the vice president “and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide” can notify legislative leaders of the president’s inability to fulfill the duties of the office and the vice president then begins acting as president. The president can resume office by notifying the legislative leaders that there is no inability. When the vice president (and the executive officials) disagree with the president about the president’s capacity and send dueling declarations to Congress, Congress decides the issue. Specifically, if 2/3 of members of Congress agree that the president is incapacitated, the vice president acts in the president’s stead, otherwise the president continues to function (and White House meetings are, no doubt, chilly).

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

June 15, 2011 – Amendment XX of the United States Constitution – Guest Essayist: William C. Duncan, Director of the Marriage Law Foundation

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Amendment XX

1: The terms of the President and Vice President shall end at noon on the 20th day of January, and the terms of Senators and Representatives at noon on the 3d day of January, of the years in which such terms would have ended if this article had not been ratified; and the terms of their successors shall then begin.

2: The Congress shall assemble at least once in every year, and such meeting shall begin at noon on the 3d day of January, unless they shall by law appoint a different day.

3: If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President. If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President elect shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.

4: The Congress may by law provide for the case of the death of any of the persons from whom the House of Representatives may choose a President whenever the right of choice shall have devolved upon them, and for the case of the death of any of the persons from whom the Senate may choose a Vice President whenever the right of choice shall have devolved upon them.

5: Sections 1 and 2 shall take effect on the 15th day of October following the ratification of this article.

6: This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission.

Congress proposed the Twentieth Amendment in March 1932 and it was ratified 327 days later in January 1933. The lack of controversy surrounding the amendment’s proposal and ratification has been matched by a lack of attention to it since ratification. Unlike some other, even seemingly innocuous provisions in the Constitution, there have been no major U.S. Supreme Court cases interpreting it or significant political controversies surrounding it.

This despite the fact that it was intended to effect an important change in American political practice.

Professor Nina Mendelson explains that the main purpose of the amendment was to
increase “the responsiveness of government to the people’s will as expressed through the election.” Nina A. Mendelson, “Quick Off the Mark? In Favor of Empowering the President-Elect” 103 Northwestern University Law Review Colloquy 464, 472 (2009). The way this was to be achieved was by abolishing “lame duck” sessions of Congress.

The lame duck sessions were created by the interaction of two Constitutional provisions.

First, Article I of the Constitution originally provided that Congress would convene once a year in December (article I, section 4, clause 2). Second, prior to the Twentieth Amendment, presidential, vice-presidential and Congressional terms began in March, four months after the presidential elections. The date for the commencement of the new Constitutional officers had been set by the First Congress. The Constitution itself specified the length of the terms so, in order to be faithful to the Constitutional mandate regarding term length, newly elected officials would take office two, four and six years from the date in March the First Congress had appointed.

These two provisions taken together resulted in a long session in election years during which the president and members of Congress could continue to enact legislation and perform other functions after the election, even when those officials had been rejected by voters.

There were some obvious concerns with the lame duck sessions. For instance, the problem of accountability of elected officials to those they are meant to represent when an election has been held and an official has been rejected by voters but that official is still making law. Officials who have not been retained in office are also likely to be susceptible to other pressures, such as the need to find work following their exit from office. See John Copeland Nagle, “A Twentieth Amendment Parable” 72 N.Y.U. Law Review 470, 479 (1997).

Because the lame duck sessions were created by Constitutional provisions shortening the terms was not possible without amending the Constitution itself.

That is exactly what the Twentieth Amendment was meant to do. The Senate Judiciary Committee report on the proposed amendment specifically said one “effect of the amendment would be to abolish the so-called short session of Congress.” Congressional Research Service, Annotated Constitution: Twentieth Amendment at http://www.gpoaccess.gov/constitution/pdf2002/038.pdf.

By abolishing the lame duck sessions, the Twentieth Amendment would resolve the problems associated with them and increase the responsiveness of elected officials to their constituents.

The amendment would accomplish this by doing away with the mandatory December session, moving it instead to the subsequent January 3rd when the amendment called for the new Congressional session to begin. The president would be inaugurated shortly thereafter. If, for instance, the November election had not resulted in a clear majority in the Electoral College, the newly elected members of Congress, rather than the old, would select the new president.

The problem is that while the framers of the Twentieth Amendment did not “expect the outgoing Congress to meet during the lame-duck period from Election Day in November until January 3” that is, in fact, what happened. Nagle at p. 485. So, even after the Twentieth Amendment was ratified, lame duck sessions continue to be held with outgoing officials enacting legislation, spending money and bailing out industries. Presidents have been particularly active during this period, issuing pardons, signing treaties and appointing judges.

The failure of the Twentieth Amendment to do away with lame duck session illustrates a truth the Founders knew well—the law cannot supply what is lacking when self-restraint fails.

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

April 22, 2011 – Article II, Section 1, Clause 7 of the United States Constitution – Guest Essayist: William C. Duncan, Director of the Marriage Law Foundation

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Article II, Section 1, Clause 7
7:  The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be encreased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them. 

The recent news of a precipitous drop in the president’s income (from $5.5 million in 2009 to $1.73 million last year) might give occasion to look at how the president is compensated. The Constitution provides for compensation that can’t be increased or decreased during a president’s term. So, a pay raise is out of the question to make up for the shortfall the president has experienced in book sales.

The Massachusetts Constitution of 1780 provided for a compensated executive and gave reasons for doing so. The provision specifies that a paid executive would not be unduly dependent on benefactors, would not be distracted from his duties by the need to earn money and would be able to maintain the dignity fitting such an officer of government. See Massachusetts Constitution, part 2, chapter 2, section 1, article 13. 

When the attention of the Philadelphia Convention turned to the question of paying the executive created by the Constitution on June 2, 1787, Benjamin Franklin objected with a written statement. His objection was that the combination of the desire for the prestige of the office and the desire for money would attract the wrong kinds of candidates. He also feared that the president’s salary might become so great that he would be tempted to use the power of the government to collect increasing tax revenue and that resistance to the high taxes would require more oppression in a spiraling cycle. Franklin thought the president ought not to be paid at all, and invoked the example of George Washington’s unpaid service as a general during the War for Independence as precedent. 

Franklin had been an architect of the ill-fated Pennsylvania Constitution of 1776 with its unicameral legislature, thirteen-person executive and no upper house in the legislature. This Constitution was copied by the French, ironically the same year Pennsylvania finally decided to replace it. Perhaps this ill-fated endeavor led the other delegates to mistrust Franklin’s advice on compensating the executive of the new national government. On July 20, the vote in favor of compensation was unanimous. 

Franklin still had an important role to play in drafting the clause as one of the delegates (with John Rutledge) who proposed adding the portion prohibiting the president from receiving additional emoluments from either one of the states or from the national government.

Noah Webster’s 1828 Dictionary defines “emolument” as: “The profit arising from office or employment that which is received as a compensation for services, or which is annexed to the possession of office, as salary, fees and perquisites.” Thus, this clause helps to preserve the system of federalism by preventing one state from seeking undue favor through payments to the president (which would, of course, look like, if indeed they were not, bribes). Prohibiting emoluments from the national government also precludes an end run around the requirement of a fixed salary that does not change during the presidential term. 

As an aside, it seems arguable that any fringe benefits in addition to salary might be constitutionally suspect depending on how strictly we understand the term “emoluments.”  This simple and clear clause has not been the subject either of much commentary or controversy. The first Congress did discuss the clause but only to ask whether it was appropriate to pay the Vice President since pay for that office was not specified in Article II. See Annals 1:646-651 (July 16, 1789). Congress eventually decided to pay the vice president $5,000 a year. The first compensation for the president set by Congress was $25,000. The president’s current salary was set by Congress in 2001 at $400,000.

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

March 31, 2011 – Article I, Section 08, Clause 17 of the United States Constitution – Guest Essayist: William C. Duncan, Director of the Marriage Law Foundation

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Article 1, Section 8, Clause 17

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;–And

At the time of the Constitutional Convention, conventional wisdom identified the two prime candidates for the seat of the new national government as Philadelphia and New York City. In fact, during the Convention, when one delegate proposed forbidding the placement of the national capitol in the capitol of any state, Gouverneur Morris “did not dislike the idea but was apprehensive that such a clause might make enemies of Philda. & N. York which had expectations of becoming the Seat of the Genl. Govt.” Records of the Federal Convention 2:127 (July 26, 1787).

The Framer’s primary concern was to ensure that the new national government was not dependent on the state in the management of the capitol or of other federal property. During the Revolution, mutinous soldiers had forced Congress to leave Philadelphia for Princeton because the former city could not protect them from the insult. (Of course this lack of dependence did not prevent the sacking of the new national capitol during the war of 1812 but no state could be blamed.)

Debate over this provision was fierce in the Virginia ratifying convention. George Mason thought it one of the most dangerous clauses because a district without any State supervision would be subject to the tyranny of the new national government. Others thought the new district could become a haven for bad actors fleeing from other states. James Madison dismissed this concern, noting that the objections “are extremely improbable; nay, almost impossible.” Henry Lee asked: “Were the place crowded with rogues, he asked if it would be an agreeable place of residence for, the members of the general government, who were freely chosen by the people and the state governments. Would the people be so lost to honor and virtue, as to select men who would willingly associate with the most abandoned characters?” Philip B. Kurland & Ralph Lerner, editors, 2 The Founders Constitution 220-222 (1987). The solution to the problem of creating a haven (or havens in the other possessions of the national government) was eventually settled by express reservations of the states when ceding land to the national government.

In 1790, Congress provided for a new capitol on the Potomac and delegated to George Washington the authority to select the site. Land was ceded by Virginia and Maryland for the purpose of creating a capitol but Virginia’s land has since been returned. Congress began meeting in the District of Columbia in 1800.

The Framers understood that people would live in the new capitol and James Madison noted that “a municipal Legislature for local purposes, derived from their own suffrages, will of course be allowed them.” Federalist 43. Currently, under the Home Rule Act of 1973, D.C. is governed by an elected mayor and District Council. Consistent with the Constitution, however, the national Congress still exercises oversight over District affairs. Congress may overturn acts of the District Council and has refused to fund certain Council decisions (like a domestic partnership registry) and has even ordered a referendum to be held on a Council decision to prohibit the death penalty. From 1995 to 2001, District finances were overseen by the Congressionally-created District of Columbia Financial Review Board to prevent the District from financial collapse due to mismanagement.

Another concern raised by this clause, however, was that the national government not become unduly acquisitive in taking lands for national purposes from the States. The solution was to require that the national government purchase land “by the Consent of the Legislature of the State in which the same shall be.” Western states often wonder how the federal government can control such large portions of the States as public lands. Typically, as a condition of admission to the Union, these States allowed the national government to retain ownership of public lands gained during the Territorial existence of the new State. The U.S. Supreme Court seems to have approved this practice in 1885. Ft. Leavenworth R. Co. v. Lowe, 114 U.S. 525 (1885). It still seems inconsistent with the Framer’s concern to prevent national takeover of state land without express consent of the Legislature, however.

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

 

March 11, 2011 – Article I, Section 06, Clause 1 of the United States Constitution – Guest Essayist: William C. Duncan, Director of the Marriage Law Foundation

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Article 1, Section 6, Clause 1
1:  The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States.6   They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

Under the Articles of Confederation, members of Congress were paid by the State they represented. In the Philadelphia Convention, there was some support for continuing this practice but the delegates opted instead to have national legislators receive uniform pay from the federal government.

In the ratification debate, the example of Rhode Island was invoked because it had failed to pay its representative in the Confederation Congress, thus effectively recalling them from service and leaving the state unrepresented. Under the Confederation, this was perhaps not too risky since the national government had so little power that it was unlikely to do much damage to the state’s interests. Under the new, more robust, national government created by the Constitution, lack of representation would be more impactful. The very real possibility that states would be added from the Ohio territory; states which would likely be poor and unable to pay legislators much; was also a relevant consideration in determining to pay members of Congress from the public fisc.

In both cases, the plan of representation on the national government might be frustrated if states and citizens were left unrepresented for lack of state money to pay salaries or unwillingness to appropriate it. (Although, on the other hand, there might be some value in having less representation from states that have bankrupted themselves through financial mismanagement.)

The other salient question for the Constitutional Convention was what the pay would be. An early draft suggested “liberal” compensation and Benjamin Franklin proposed “moderate.” The final decision was to proceed without a modifier. Congress could decide its own salary, though with the understanding that constituents would be watching. The check provided by voters was later strengthened by the adoption of the 27th Amendment which prevented any Congressional pay raise from going into effect before an intervening election allowed voters to weigh in on the vote for the raise.

The second part of the clause is referred to as the “Speech or Debate Clause.” It has an honorable pedigree stretching back at least to the English Bill of Rights of 1689. The Articles of Confederation (article 5) contained a similar provision. The clause “provides legislators with absolute immunity for their legislative activities relieving them from defending those actions in court.” United States v. Jefferson, 546 F.3d 300 (4th Cir. 2008).

The concern here is that the legislative branch of the new national government be protected from attempts to either intimidate or punish members for their expression in Congress. Thus, for instance, members cannot be sued for libel based on comments they make in debates in the House and Senate and are not subject to prosecution for those statements. This ensures not only a robust debate but the independence of the legislative branch.

The controversies related to this Clause have typically involved its scope. When a Senator placed classified government documents (the Pentagon Papers) into the public record and was reportedly trying to arrange private publication of the papers, a grand jury issued a subpoena to a member of the Senator’s staff. In the resulting case, the U.S. Supreme Court said the actions of Congressional aides in pursuance of duties that would be protected by the Clause if done by members of Congress were also protected. The court did not prevent the grand jury from investigating the private publication question since such was outside the scope of legislative duties. See Gravel v. United States, 408 U.S. 66 (1972).

Criminal conduct, such as corruption or accepting bribes is not legislative work (one can only hope) and is also not protected by the Clause. See United States v. Brewster, 408 U.S. 501 (1972). In another case, the Supreme Court said a defamation lawsuit based on statements in a Senator’s press release was not protected by the Clause. See Hutchinson v. Proxmire, 443 U.S. 111 (1979).

On the other hand, legislators are protected while “speaking on the House or Senate floor, introducing and voting on bills and resolutions, preparing and submitting committee reports, acting at committee meetings and hearings, and conducting investigations and issuing subpoenas.” Tod B. Tatelman, “The Speech of Debate Clause: Recent Developments,” CRS Report for Congress (2007) pp.2-3 at http://www.fas.org/sgp/crs/misc/RL33668.pdf.

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

March 8, 2011 – Article I, Section 05, Clause 1 of the United States Constitution – Guest Essayist: William C. Duncan, Director of the Marriage Law Foundation

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Article 1, Section 5, Clause 1
1:  Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide.

Article I, section 5, clause 1 of the Constitution gives to the branches of the Legislature power to “judge” or determine whether an election of one of its members is valid and whether the person elected meets the Constitutional requirements for service. Without such a check, Joseph Story explained, “any intruder, or a usurper, might claim a seat, and thus trample upon the rights and privileges, and liberties of the people.” Joseph Story, 2 Commentaries on the Constitution §831 (1833).

The U.S. Supreme Court discussed this provision in a case challenging the House of Representatives’ decision to exclude Adam Clayton Powell, Jr. over allegations of corruption. In that case, the Court ruled the House could not exclude Representative Powell unless he did not meet one of the qualifications in the Constitution (age, citizenship, etc.). In other words, his exclusion was unconstitutional because the House had added a qualification not in the Constitution. See Powell v. McCormack, 395 U.S. 486 (1969). As stated in a later case: “The decision as to whether a Member satisfied these qualifications [those in Article I, section 2] was placed with the House, but the decision as to what these qualifications consisted of was not.” Nixon v. United States, 506 U.S. 224, 237 (1993).

The next part of the clause deals with the quorum required to do business. The challenge here was to ensure that the requirement was not too much or too little but just right.

In the Constitutional Convention, Oliver Ellsworth, succinctly made the case that a majority should be required for a quorum: “It would be a pleasing ground of confidence to the people that no law or burden could be imposed on them, by a few men.” Philip B. Kurland & Ralph Lerner, editors, 2 The Founders Constitution 289 (1987); see also John Bryan Williams, “How to Survive a Terrorist Attack: The Constitution’s Majority Quorum Requirement and the Continuity of Congress”48 William & Mary Law Review 102 (2006).

On the other hand, a larger requirement might have had advantages but would have become unworkable. In Federalist 58, James Madison notes this and adds that if there were a more stringent requirement “In all cases where justice or the general good might require new laws to be passed, or active measures to be pursued, the fundamental principle of free government would be reversed. It would be no longer the majority that would rule: the power would be transferred to the minority.” This would happen because the minority could keep anything from being done.

As Congress now operates, the question of a quorum is not usually considered unless a member requests a quorum call, usually as a way of delaying the business of the body.

One very real threat to the quorum requirement would come if a number of members decided to flee or otherwise avoid attending the deliberations of Congress so as to prevent a quorum and keep business from being done. Of course this is occurring right now as members of the Wisconsin Senate have fled the state in order to prevent a quorum and thus the passage of legislation with which they disagree.

This behavior was anathema to the Framers. James Madison called it “the baneful practice of secessions . . . a practice which leads more directly to public convulsions, and the ruin of popular governments, than any other which has yet been displayed among us.”. Federalist 58; see also William C. Marra, “What Would America’s Founders Think About Fleeing Legislators?” Weekly Standard (February 28, 2011) at http://www.weeklystandard.com/blogs/what-would-americas-founders-think-about-fleeing-legislators_552632.html?page=2.

The Framers effectively countered such a threat by allowing a smaller number of legislators to compel their erstwhile colleagues to return. In the Philadelphia Convention, John Randolph and James Madison proposed adding this requirement on August 10, 1787, the day that the quorum requirement was debated. Kurland & Lerner at 290. If effectively applied, it can prevent a minority takeover of the power of the national government through inaction.

Yet another example of how current developments help us to see the wisdom and foresight of the Constitution’s drafters.

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

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

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

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

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

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

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

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

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

  1. BobG says:

February 25, 2011 at 10:38 am

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

  1. Janine Turner says:

February 25, 2011 at 10:47 am

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

  1. Susan says:

February 25, 2011 at 12:27 pm

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

  1. Ralph T. Howarth, Jr. says:

February 25, 2011 at 3:59 pm

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

  1. Donna Hardeman says:

February 25, 2011 at 4:22 pm

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

  1. Susan says:

February 25, 2011 at 5:36 pm

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

  1. Ralph T. Howarth, Jr. says:

February 25, 2011 at 6:37 pm

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

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

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

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

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

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

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

from an article by Thomas Sowell, Judicial Activism Reconsidered

  1. Jon says:

February 25, 2011 at 9:28 pm

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

Thanks

  1. Donna Hardeman says:

February 25, 2011 at 10:01 pm

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

  1. Debbie Bridges says:

February 25, 2011 at 11:06 pm

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

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

  1. Ralph T. Howarth, Jr. says:

February 26, 2011 at 12:42 am

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

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

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

  1. Scott Miller says:

February 26, 2011 at 4:49 am

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

  1. Ralph T. Howarth, Jr. says:

February 26, 2011 at 3:14 pm

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

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

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

May 20, 2010 – Federalist No. 17 – The Same Subject Continued: The Insufficiency of the Present Confederation to Preserve the Union, For the Independent Journal (Hamilton) – Guest Blogger: William C. Duncan, director of the Marriage Law Foundation

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Thursday, May 20th, 2010

One of the most significant criticisms of the proposed Constitution was that it would eviscerate the autonomy and authority of the individual States. As Alexander Hamilton described it, the argument was that the Constitution “would tend to render to government of the union too powerful, and to enable it to absorb those residuary authorities, which it might be judged proper to leave with the states for local purposes.” While some today would not think of that as a weakness, this criticism was important because both the Framers and many of their contemporaneous critics believed that functioning States were crucial to ordered liberty. Thus, the Constitution provided that of all the appropriate objects of government authority, only a small and specifically identified set would be delegated to the national government, by the States.

So, in Federalist 17, Alexander Hamilton could respond to the criticism by arguing that the threat actually goes the other way (that the States might interfere with the proper ends of the national government). He supported his arguments for the likely predominance of State power by noting that: (1) the enumerated powers of the national government (commerce, finance, negotiations, war) will likely be very alluring targets for people driven by ambition so they won’t bother with the larger set of issues regulated by States, (2) meddling in local concerns would likely create enough trouble for the national government as to make doing so undesirable to national officials, (3) the people of the States would not likely stand for the usurpation and they are the constitutions of the national government.

In support of this last point, Hamilton notes that it accords with human nature: “It is a known fact in human nature, that its affections are commonly weak in proportion to the distance or diffusiveness of the object.” Thus, “a man is more attached to his family than to his neighbourhood, to his neighbourhood than to the community at large” so “the people of each state would be apt to feel a stronger bias towards their local governments, than towards the government of the union, unless the force of that principle should be destroyed by a much better administration of the latter.” The States also have the important advantage of being responsible for matters “of criminal and civil justice” which make them “the immediate and visible guardians of life and property.” The national government, dealing only with “more general interests” that are “less immediately under the observation of the mass of the citizens” is “less likely to inspire a habitual sense of obligation, and an active sentiment of attachment.” Since the States “will generally possess the confidence and good will of the people” they “will be able effectually to oppose all encroachments of the national government.”

Hamilton’s analysis is persuasive but might seem a little alien in a climate where the national government increasingly dominates not only the objects of proper governmental authority but areas of life the Framers would not have contemplated government would regulate. Nevertheless, Hamilton does hint at a motivation for this dramatic incursion of the national government. Thus he notes that hypothetically “mere wantonness, and lust for domination” could lead national leaders to desire to interfere in State prerogatives. He believed, however, that the political process would turn back any such incursions since the States, with the support of their citizens, would “control the indulgence of so extravagant an appetite.”

Why has this check not been more effective? Perhaps it would have been if the sole threat to the notion of a national government of limited powers was the personal ambition of national leaders and others who might have a financial stake in government functioning. A more menacing challenge, however, was developing in Europe at the time of the Framing but which had not taken root in the fledgling United States. This was the emergence of ideology and its attendant schemes for improving not only the administration of traditional government functions but rather human nature itself. The scope of such an ambition obviously would not be confined to interstate commerce and international relations but would also contemplate the objects of State governments like criminal and civil justice. In this project, the States have too often been complicit in order to secure largesse from the national government. Then, as the province of the power of the national government expanded, the subjects which might tempt ambitious individuals and financial speculators multiplied and created interest groups with a strong incentive to continue national involvement in traditional State concerns.

The best hope to change this state of affairs is a return to the modest scope of national power and the reemergence of robust State authority.

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

33 Responses to “May 20, 2010 – Federalist No. 17 – The Same Subject Continued: The Insufficiency of the Present Confederation to Preserve the Union, For the Independent Journal (Hamilton) – Guest Blogger: William C. Duncan, director of the Marriage Law Foundation”

Carolyn Attaway says:
May 20, 2010 at 8:06 am
I appreciated Mr. Duncan’s insight into Paper 17, and realized as I read his analysis of Mr. Hamilton’s writing, that where the Paper was to warn of the dangers a very robust State may have on National authority; today we see the reverse to be true, where a robust National authority usurps the State’s power.
During Hamilton’s time, the men in Congress served part-time and worked a great deal in the private sector. So when Hamilton writes ‘relating to more general interests, they will be less apt to come home to the feelings of the people; and, in proportion, less likely to inspire an habitual sense of obligation, and an active sentiment of attachment’, I realize how far we have come from the framers original intent. Today our representatives in Congress are full-time delegates; many never having worked in the private sector, making laws over citizens with no sense of reality as to what it takes to survive in mainstream America.
This part of our framework I fear is broken. I believe our founders never intended Congress to be so removed from their citizens, taking on the role of knowing what is best for their constituents, and making laws without their consent. The Great Cement of society has cracked.
I enjoyed Hamilton’s reference to the feudal systems of Great Britain. Being an avid reader of that period of time, I could visualize the struggles between the feudal baronies and clans, not only against the crown, but with each other, and within each group of people. Hamilton writes ‘the separate governments in a confederacy may aptly be compared with the feudal baronies; with this advantage in their favor, that from the reasons already explained, they will generally possess the confidence and good-will of the people, and with so important a support, will be able effectually to oppose all encroachments of the national government.’
Again, during Hamilton’s time, I believe this statement had greater import, but today with the States giving the Federal Government so much of their power, they do not retain a great deal of the confidence and good-will of their citizens. Many of their citizens do not realize that a lot of the entitlements that they receive from the State are due to monies being received from the Federal Government in exchange for State authority. And if they do realize it, how many of them understand the consequence?
With the ratification of the 17th Amendment, I believe the power of the State diminished.

Charles Babb says:
May 20, 2010 at 9:00 am
Thank you Mr. Duncan, for that synopsis and for your analysis. Hamilton seemed to miss one “fact of human nature” regarding “its affections”; that is the one of individual and collective greed. “In this project, the States have too often been complicit in order to secure largesse from the national government.” We’ll give back some of your citizens’ tax dollars, for school construction as long as you agree to teach your children what we tell you to teach them.
And it could not be said better; that, “The best hope to change this state of affairs is a return to the modest scope of national power and the reemergence of robust State authority.”
What is needed now is a plan to accomplish that goal.

Susan Craig says:
May 20, 2010 at 10:52 am
While I grant that Hamilton’s point of view has merit from the divisiveness that comes from internal squabbling. But what happens to the country when the abuse comes from the other direction? What happens when the greed and power hunger abuses the intent of the enumerated powers? In Federalist 17, Alexander Hamilton responds to this by arguing that the threat actually goes the other way (that the States might interfere with the proper ends of the national government). He supported his arguments for the likely predominance of State power by noting that: (1) the enumerated powers of the national government (commerce, finance, negotiations, war) will likely be very alluring targets for people driven by ambition so they won’t bother with the larger set of issues regulated by States, (2) meddling in local concerns would likely create enough trouble for the national government as to make doing so undesirable to national officials, (3) the people of the States would not likely stand for the usurpation and they are the constitutions of the national government.
Today I don’t see much of that but I do see a lot of usurpation of State, local and individual rights by the Federal Government, this I think is a result of ignorance and laziness on the part of the individuals.

Linus Behne says:
May 20, 2010 at 1:04 pm
Boy, I sure wish that Alexander Hamilton was correct about the national government staying out of the business of the states. Hamilton would be shocked if he came back to life today. The Federal government wants to stick its’ nose into everything.
One of my favorite lines from Fed 17: “It is therefore improbable that there should exist a disposition in the federal councils to usurp the powers with which they are connected; because the attempt to exercise those powers would be as troublesome as it would be nugatory; and the possession of them, for that reason, would contribute nothing to the dignity, to the importance, or to the splendor of the national government”.

William Duncan says:
May 20, 2010 at 1:54 pm
Thank you for these excellent comments. I am much from your responses and am glad the essay sparked these thoughts.
I agree that our situation now is pretty grim in terms of centralization of power in the national government. One thing that I believe would make a difference is for states and individuals to resist the temptation to accept federal funding in some instances.

William Duncan says:
May 20, 2010 at 1:56 pm
The first sentence in the second paragraph of my comment should have read “I am learning much.”

Susan Craig says:
May 20, 2010 at 2:08 pm
How I wish that today’s iteration of our ‘Constitutional’ government would think that the usurpations were “nugatory” (of little or no consequence: trifling, inconsequential: having no force: inoperative: synonym – vain)

Carolyn Attaway says:
May 20, 2010 at 2:09 pm
Susan, I agree with you to some degree on the ignorance of the individual due to the lack of correct US History being taught in the public school system, however; I do not concur with the word laziness. The majority of Americans today are very hardworking people, many taking several jobs to keep afloat, and I think that is the crux of the problem. So many people are on auto pilot in political matters of our country, and do not have the time nor energy to keep up with all that is happening today. Many people work long hours and only look for a small reprieve from their work by the end of the day/week. Others honestly thought that the problems we are experiencing today never could happen.
I heard a current poll today that asked if you were satisfied with the direction the country is going. Only 23% of the people polled agreed, the rest were deeply dissatisfied. I think we can safely assume that the 23% is from the left who have very liberal agendas.
I believe with every day that goes by, more and more people are finding the energy and the courage to take a stand. Now if we could get our representatives in Congress to do likewise.

Maggie says:
May 20, 2010 at 2:11 pm
I don’t think that Hamilton ever envisioned things going so far in the opposite direction because it has always been the American Spirit to work hard for what we have. We have become a nation full of people with our hands out. When you expect others to take care of your every need without working for it yourself, you give up many rights in return. We the People have handed our rights over, slowly but surely because we have become lazy and complacent.

Ron Meier says:
May 20, 2010 at 2:43 pm
As others have noted, the current situation is greatly different from what could have been anticipated 200 years ago. States have allowed themselves to have their authorities and powers over certain areas of responsibility be minimized by federal mandates on a whole host of areas. As a consequence, the states have allowed themselves to become dependents of the national governmennt. Today, we see that many of the most populous and powerful states are in a state of almost permanent weakness, due to their own fiscal mismanagement, and thus are not able to take back what the federal government has taken away; they are responsible for all that is wrong in their states, but the federal government holds the reins of authority, and the states have no power to correct anything. Effectively, the states have been neutered in small bites by the feds.
Therefore, it is now up to the people. It seems that many of us have intuitively realized that the states cannot and will not fight back, and that is the genesis of the tea party movement. This movement is unfolding and untested, and we won’t know if it can effectively take back what has been taken from us over a hundred years. I remember Warren Buffett saying recently that “we have been selling our country to foreigners a little bit at a time.” Indeed we have; we’ve also been selling our individual and states’ rights a little bit at a time. Each tiny step didn’t hurt at all, so we kept selling. Now, while the individual steps were no problem, the cummulative effect of those tiny steps is killing us. Kinda like smoking; pleasurable over many years, but fatal sooner than hoped.

Will Morrisey says:
May 20, 2010 at 3:06 pm
I think that Hamilton’s key point is that the original design or structure of the U. S. federal system gave the states the means of resisting federal-government encroachment. The centerpiece of this was the Senate. Recall that the senators under the original system were not elected directly; they were appointed by the state legislatures. Quite often, those legislatures would sent `their’ man to Washington with expressly-stated directives on how to vote. Contrast this with the system brought in by the Progressives, under the Seventeenth Amendment. From then on, a U. S. Senator simply did not need to worry much about any directions or resolutions from his/her state legislature. A Senator’s political `power base’ is quite independent of the legislature of his home state. This is one major reason why federalism doesn’t work as intended. It’s not Hamilton’s fault, or the fault of any of the founders. It’s a much later development.

Constituting America says:
May 20, 2010 at 3:50 pm
Where did we go wrong as a country that we let the Federal government overtake the states? This was obviously not the intent of our founding fathers. As explained in Federalist Paper No. 16, the communities and local passions were to always be the stronghold against the homogeneous nature that springs from a Federal formation.
Obviously, Alexander Hamilton could envision great commerce and industry from such a fastidious people as Revolutionary Americans, but how could he see the vast transformation of communication and transportation? From his post in the 18th century, the local influences and perspectives were dominant, and the national sways were secondary.
He could not imagine the amazing feats in engineering that would revolutionize transportation broadening the horizons of the people. Nor could he foresee the formidable transformations resulting from the inventions of the telephone, radio and television. With this occurrence, the states lost their uniqueness, the people their distinctness and the federal government gained power – a shift occurred.
But was this enough to open the door for the Federal government to eat away at the core of the states’ powers?
What gave the Federal Government the power to encroach? Perhaps it was the Constitutional Amendment XVI – Income Taxes. What was the incentive that enticed the people to forfeit their individuality and their rights? Subsidies – the spoon-feeding mentality that usurped the American “can do” spirit.
The slippery slope began. Alexander Hamilton stated in Federalist No. 15, “When the sword is once drawn, the passions of men observe no bounds of moderation.”
Perhaps it should be, “When the sword of taxes is drawn, the passions of government observe no bounds of moderation.”
Knowledge is power. With the awareness and education of the true intention of our United States Constitution, the American spirit will be revived and the people will recognize the power of their vote. Our Republican form of government offers the way to rectify.
To quote Alexander Hamilton, “There is one transcendent advantage belonging to the province of state governments, which alone suffices to place the matter in a clear and satisfactory light.. I mean the ordinary administration of criminal and civil justice.”
The criminal and civil justice belong to the states.. something to ponder.
God Bless,
Janine Turner
May 20, 2010
P.S. I thank William C. Duncan for joining us today and for his insightful essay! Thank you, Mr. Duncan!

Susan Craig says:
May 20, 2010 at 4:09 pm
The ‘laziness’ I was alluding to was not that of hard labor but of intellect and inquiry. Our propensity to go along to get along. The laziness is in trusting what the ‘talking heads’ and politicians say not digging into the details of what is behind the pretty sounding titles and sound bites. My current example of this is the trust we had when the ‘talking heads’ and politicians said that the passed version of “Health Care” [prime example of a misleading title] did not contain a public option – THEY LIED! It is there just buried in the care of the Director of the Office of Personnel Management (Section 1334, pages 97-100).

Dave says:
May 20, 2010 at 4:24 pm
Carolyn, well said. You got me thinking about how different public officials and citizens were in Hamilton’s time compared to today. Citizens were probably not as mobile back then, so when they settled on a place, it was a place where they would invest considerable time and resources. Early Americans must have been very attached and loyal to their local communities and states. They knew that any public improvements would be improvements they would enjoy for many years, so public projects were heavily supported locally (no stimulus money needed back then.) How loyal to their local communities are today’s representatives of the people. They are in Washington more than their home states. They won’t even meet with constituents for town hall type meetings. They vote for social policies even when their constituents are against them 5 to 1 or even 10 to 1. How loyal were the Clintons to Arkansas? How many politicians sell out their states to obtain a federal post? From how many laws do the federal legislators exempt themselves? Arlen Specter wanted power so bad he switched parties and abandoned any principles he may have had.
As I read No. 17, I kept writing in the margin “wrong.” Hamilton had certain expectations of how things would play out. Evidently modern man has become much more imperfect and degraded than Hamilton could ever conceive. It’s obvious to me Hamilton has a blind side. He cannot envision the general government being the source of infringements on individual liberty. Granted the states at the time were not bastions justice and magnanimity, and something had to be done.
Hurray Charles. I’m sick and tired of what Ronald Reagan, many years ago, called the money merry-go-round—citizens compelled to send their hard-earned tax dollars to Washington, only to have it trickle back to their state at the whim and behest of federal bureaucrats. Federal money is for FEDERAL PROJECTS duly enacted that benefit the whole republic. Spending federal dollars on non-federal projects is unconstitutional.
Reps have a duty to protect their state’s enlightened self-interest and constitutional sphere of state authority on behalf of their constituents. This duty I’m suggesting is not to imply an abrogation of a state’s federal responsibilities, nor is there any implication to disparage or diminish the constitutional prerogatives of the federal government or those of the 49 other states. What cannot be allowed to continue is for the states, and the state actors, to continue to accept the role of mere agents for the federal government. Madison in Federalist No. 46 puts the agency relationship in the proper perspective: “The federal and State governments are in fact but different agents and trustees of the people, constituted with different powers and designed for different purposes.” In a nutshell, local money, to the greatest extent possible, should stay local for local purposes.
My thanks to Mr. Duncan.

Dave says:
May 20, 2010 at 4:44 pm
Thanks for bringing up the Seventeenth Amendment Professor Morrisey. What was it that sold the Amendment to the states? Why would they give up such a key component of federalism and a check on the passions of the people’s house with a different scheme of composition for the senate?

Carolyn Attaway says:
May 20, 2010 at 4:57 pm
I think it is more stupid arrogance of our elected officials. When in any other time of history would you have heard these responses:
“Many senators and congressmen have taken offense to the idea that they read these bills.
Representative John Conyers didn’t know what the point was in reading it because he wouldn’t understand it anyway.
House Majority Leader Steny Hoyer laughed at the idea of reading the health-care bill saying, “If every member pledged to not vote for it if they hadn’t read it in its entirety, I think we would have very few votes.”
Representative Henry Waxman admitted he didn’t know the details of his own Cap and Trade bill.
And Senator Arlen Specter said they couldn’t read the whole bill, because they have to “make adjustments very fast.” Link:http://www.redcounty.com/note-representatives-us-constitution-should-be-your-guide
More constituents knew what was in the HC Bill than Congress did. I do agree many constituents are lazy when it comes to researching their candidates before voting for them; but hopefully this Novemeber that won’t be a problem!

Dave says:
May 20, 2010 at 5:48 pm
Susan, nihil sub sole novum (nothing new under the sun.) Jefferson had this in the Declaration of Independence: “all experience hath shown that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed.” Hard-working Americans have been hard at work supporting themselves and their families. As individuals they give time and money to their churches, charitable organizations and to the community. They never saw the slow switch when public offices became places of profit instead of places of honor. Hard-working Americans have been too busy to be political activists and “organizers.” I think they’re realizing quickly that they cannot afford to be too busy too much longer.
I think the masses have become too accepting of pronouncements from a self-anointed elite class. Universal healthcare? Let’s see, Social Security, Medicare, Medicaid, PGBC, Amtrak; failure, failure, failure, failure, and failure. Why would anyone think the government being everyone’s doctor is a good thing?
The moral fabric of Americans having become frayed, Americans have succumbed to the siren song of the free lunch. Too many Americans think it is morally acceptable to have others provide for that which they can, but refuse to, provide for themselves. I love Janine’s
line about America being built by Americans, not with their hands out, but with their hands at work. Contrast that with Nancy Pelosi’s recent utterance about the healthcare bill: ““We see it as a entrepreneurial bill – a bill that says to someone, if you want to be creative and be a musician or whatever, you can leave your work, focus on your talent, your skill, your passion, your aspirations because you will have health care.”
So, if the marketplace has determined that you really suck at something, no worries, the taxpayers will subsidize your “artistic efforts.”

Jimmy Green says:
May 20, 2010 at 6:43 pm
Hamilton’s arguments that the Federal Government would never usurp the States sovereignty in its laws simply due to the lack of interest or as Hamilton states “can never be desirable cares of a general jurisdiction”. is something I agree with not because of a lack of desire by the fed’s but rather a restraining system of checks and balances working properly to enforce this restraint. Power generally begets more power when it can and Hamilton knew this so a simple belief the Feds would have no further interest to usurp state sovereignty regardless of a constitution seems week at best.
This paper seen in the perspective that the constitution will work as written would in effect allow everything Hamilton wrote in essay 17 to work as so written. In that context I agree with Hamilton and we could rewrite essay 17 as essay common sense.
Our attachments are greater to those nearer. Our bias would be towards our State. Even the state criminal and civil laws or justice will bind the people to their states. “Unless you’re guilty.” Okay all common sense.
The exception is Hamilton’s belief that the feds need to worry more about the states encroachment on the fed. The congress will be enacting “federal” legislation and since the “federal” courts will determine the constitutionality of the “federal” laws vs. the states.
I would have thought this alone would give Hamilton pause in his belief on the reality or not of state encroachment.
Hamilton upbringing and early adulthood probably colored his view differently from the average Americans as some have pointed out to me.
Also the essays were written to achieve consensus in New York on ratifying the constitution so some liberties may have expressed Hamilton’s desire but not actual beliefs.
I’m curious to know if Hamilton believed there was a threat to state sovereignty or if he cared. He understood the corrupting influence of power. The drive of power for powers sake and the inherent jealousy and ambitions to abuse the common man in pursuit of power. Yet he seems devoid of understanding that when the Federal Government is left to determine the constitutionality of any law against a sovereign state through the federal governments own federal courts that your only asking for trouble. The final arbiter of constitutional law is the Supreme Court. Just a bunch of federal “lawyers” sitting around deciding what they believe is write or wrong. If they follow a fairly strict interpretation of the constitution then were all reading from the same play book. Life is fine, the sun shines and the bees buzz. It’s when decisions based on egos or the sudden finding of a hidden meaning in the constitution that no one before them found or god forbid “I want to leave a legacy”. Then the rule book is always changing and we start to look like those feudal systems Hamilton discussed. This was an inherent danger the founders overlooked that we need to remedy today less we move further away from the founding documents.

Susan Craig says:
May 20, 2010 at 8:17 pm
There’s the rub. (to quote a famous Dane). What we have at federal level is not the deliberative body it was envisioned to be. They are trying to be all things to all people and being none to everybody. They are reactive thinking [and I use the term loosely] that we being an instant society need everything done yesterday if not sooner.

Roger Jett says:
May 20, 2010 at 8:34 pm
Dave, You asked earlier in reference to the 17th Admendment, ” what was it that sold the Admendment to the states?”. I think the answer to that question is that it was the desire of the people. Overtime their was enormous dissatifaction over the process of having U.S. Senators elected by state legislatures. Pressure was exerted on both the U.S. Congress and upon the state legislatures to allow their direct election by the citizens. Congress resisted, but state legislatures acquiesced to the will of the people. By 1912, (29) state legislatures elected U.S. Senators via state referenda. It was only after the state legislatures were on the verge of achieving a two-thirds majority in a movement to call for a convention for a constitutional admendment, that congress relented and proposed the 17th Admendment. The Admendment was ratified by 37 out of a possible 48 states with only one state explicitly rejecting it.

Susan Craig says:
May 20, 2010 at 8:46 pm
I don’t know but when it was briefly covered in either my high school or college history courses I think the selling points were supposedly “We the people” are supposed to be the final say in our ‘democracy’ (note how the fact we are a representative republic is not to be spoken) so why should there be another body of our ‘betters’ choosing the most powerful position in the legislature. Somehow they neglected to point out it is the directly elected representatives who have the power of the purse and that legislation at least nominally is to originate from there too.

Will Morrisey says:
May 20, 2010 at 9:47 pm
There had been numerous attempts to amend the Constitution to require direct election of senators; the first such attempt was in 1826. By the time the amendment was passed in 1912, 29 of the 48 states had direct elections `in effect’; that is, they had nonbinding elections, but the state legislators pledged to vote for the top vote-getter. Amendment 17 is one of the Progressive-era amendments; as one would expect, the argument was that democracy in principle should involve direct popular election of legislators. The Heritage Guide to the Constitution has a good, short account of the matter.
Janine Turner adds an important point about the income tax amendment, passed around the same time. These two amendments were characteristic moves of Progressivism: If you are out to build a centralized, modern state, you need big revenue source, such as an income tax (mere tariffs won’t do); in addition, you need political structures that do not in any way depend upon the will of the subordinate political structures in the system. This sets up a system that appears to be more democratic than its predecessor (and in some respects is more democratic) while at the same time funding a bureaucracy that will effectively serve as an UNelected `fourth branch of government’–that is, as a new and oligarchic element in the regime.

Roger Jett says:
May 21, 2010 at 12:55 am
Dr. Morrisey, Many seem to be in agreement that the 17th admendment was a poor decision. I’ve tried to listen and remain open on the matter, as I have evaluated the various arguments for and against it’s ratification. I have to entertain thoughts about where would we be now if we still left it up to the state legislatures to determine who represents in the Senate. Who can say what impact the 17th Admendment has had in the last 96 years or so, but certainly there has been some effect caused by it. What that might be is speculative at best. One point however is that the legislative landscape at the state level has been dominated by one party consistently for a long, long time, while at the national level there has been substantially more balance between the parties in the U.S. Senate. I don’t want to argue that we are always better off if a particular party is in the majority. However, I believe most people recognize that when we have a party that has too large a majority for too long a period of time, then abuses occur. Many Americans breathed a little easier when the balance of power shifted ever so slightly in the Senate this past January. If Article I, section 3, were still in effect , with partisan politics as it is, what would be the status in the Senate. We currently have Republican control over 14 state legislatures and Democrat control over 28 state legislatures. In seven state legislatures neither party controls and apparently Nebraska’s Legislature is considered nonpartisan. In my mind, I see this scenario resulting in at least 56 Democratic Senators and at least 28 Republican Senators, with a lot of contention transpiring in the remaining 8 states over how to decide who gets the remaining 16 Senate Seats. I for one am glad it’s the people who decde.

Dave says:
May 21, 2010 at 12:59 am
This is better than a college seminar. Thanks for all the great comments about the 17th Amendment. I think the amendment disrupted the balance the Founders’ tried to achieve in accommodating the different faculties of men and hence different material conditions as Madison wrote about in No. 10. The Senate seemed to be designed to keep the levelers at bay. But now you have two lower houses, one of which has a 6-year term–let the great leveling begin, for Madison tells us that “the most common and durable source of factions has been the various and unequal distribution of property.” (No. 10) To “the People” of the populism movement who wanted a senate that looked like them, I have one thing to say–”How’s that working out for you? A few years back a study was done of the financial wealth of senators and found that 40 percent of them were millionaires. Not quite a mirror image of the general populace.
Isn’t getting rid of the aristocratic leanings of the senate like Hamilton’s example of when the sovereign and the common people “effected a union between them fatal to the power of the aristocracy[?]” In this context, I can’t help thinking about the title of a history book on the Russian Revolution by Orlando Figes–”A People’s Tragedy.” The people always think they’re going to come out way ahead and they never do.
As I read more and more about our early republic, I’m troubled with a recurring thought–Have we become a people incapable of governing ourselves?

Susan Craig says:
May 21, 2010 at 8:18 am
The more we push self-esteem over self-accomplishment and allow “the devil made me do it” instead of insisting on the self-determination of ones actions the less governable we become. Governance begins with self.

Will Morrisey says:
May 21, 2010 at 9:09 am
Roger Jett makes a key argument. My point is simply that one can’t have two opposite things at once. That is, you can’t have federalism as “The Federalist” conceives it and also have the popular election of senators that has brought greater representation to the Republican Party in the Senate–unless you figure out some other institutional device that would shore up the states by giving them a more direct voice in the federal government. Alternatively, under a system of renewed control of state legislatures over the Senate, Republicans would need to take state legislative elections much more seriously and work to win majorities in them. There would undoubtedly be much more media focus on such elections if more were at stake in them. When it comes to state legislative elections, maybe Republicans have reaped the harvest of their own inattention.

Dave says:
May 21, 2010 at 10:31 am
Roger, thanks for your insight. But the people did decide before the 17th Amend., it’s just that under the framers’ plan they decided indirectly by electing the local legislators. The senate was to be the repository of the accumulated wisdom of the nation. It was set up to throw cold water on the heated passions of the lower house. They were supposed to be the best and the brightest; an aristocracy of merit not heredity (if my ancient Greek does not fail me, I think aristos means best or most noble.) The unique concerns of the senate laid out in the constitution were far removed from local concerns. Treaties, foreign trade, federal appointments, and national security were not what the common people were thinking about on a day-to-day basis–they wanted to know if the crops and animals were taken care of.
I haven’t had a chance to read up on the 17th Amend., but my guess is that there had to be corruption, or abuse of power of some kind, to upset the people of the time.
The American people of the 21st century are too ignorant of the long-term impact of their ill-considered public policy desires. Our rights of private property will always be sacrificed on the altar of democracy. If the masses can confiscate the wealth of the few through the use of government under the color of “social justice,” “economic justice,” “environmental justice,” and “shared responsibility,” they will. The senate was supposed to be populated with disinterested statesmen of integrity and honor–closer to Franklin than Franken. The civic knowledge landscape of the American electorate and the elected is not a pretty picture. The Intercollegiate Studies Institute’s (www.isi.org) reports for the last few years present a dismal, horrifying dumbing down of Americans. We’ve gotten to the point where someone like me, just a common man, could now be seen as an elitist.
Just give the people their bread and circuses (panem et circenses) and the individual rights and liberties of others can be trampled without notice or concern to the long-term detriment of all.

Dave says:
May 21, 2010 at 10:57 am
Susan, we do irreparable harm to the individual and his potential to lead a meaningful and fulfilling life when we show such little respect for his free will and his autonomous self-determination by not holding him accountable for the consequences of his actions.
I got an idea. If anyone wants a bailout, they must seek it from family, friends and willing strangers. The anonymity of individual and corporate welfare payments lacks the transparency to make people accountable. There’s no sense of shame, no sense of honor; just entitlement. It’s so easy to spend other people’s money.

Susan Craig says:
May 21, 2010 at 1:23 pm
Dave, that is my prime objection to a majority of national welfare programs. It subtly tells the recipient that they can’t make it therefore they need to be cared for. Enslaving those take the ‘entitlement’.

Dave says:
May 21, 2010 at 2:28 pm
Susan, to me it’s even more insidious than simply telling the recipients that they can’t make it. The “welfare” is sold as something they are entitled to because their situation came about through no fault of there own–certain external constraints kept them from living a life of excellence. But for certain classes of people holding the recipient back because of prejudice, monopoly power over capital, or any other made up reason our recipient would be the next Edison or Gates. The system allows people to forget that before the government can “benefit” certain individuals, it must necessarily deprive others. A government has nothing prior to taking from the governed.

Roger Jett says:
May 21, 2010 at 7:50 pm
Dave, I find that what Dr. Morrisey and you have had to say today has great merit and serves to help us focus more upon the real underlying issues and less upon the “appropriateness” or, perhaps the “inappropriateness” of the 17th Admendment. The Founders sought to preserve sovereignty to the states and to the people in those areas which were not specifically enumerated to the federal government. I believe we each agree that to the detriment of America we have drifted substantially away from where the Founding Fathers intended for us to be . In my opinion some of that drifting may have been the result of unrealistic expectations on their part. After all, much that they attempted was experimental and on a grand scale. However, while they may have been mistaken in a few of their methods, they proved to be overwhelmingly correct in their concepts, precepts and principles. Our goverment as built upon our Constitution, has withstood many tests over a period of time that is unequaled in history. However, I believe I’m on target when I say that there is a consensus that we are in grave danger of losing our republic form of government. We face many difficulties. By way of what Dr. Morrisey calls a Fourth Unelected Branch of the federal government (bureaucracy), the executive branch is managing to usurp power from the legislative branch. By judicial activism, the judiciary branch further usurps power from the legislature as they legislate laws from the bench. Of course as has often been discussed already, the federal legislative branch in conjunction with the federal judiciary has routinely overriddened the sovereignty of the state governments. We the people have grown selfish, complacent, apathetic and in increasing numbers more and more dependent upon the federal government. Such actions and lack of action invites bondage. We still have a “republic” and it’s time for us to wake up, cast off our fears and fight to save it.

Kay says:
May 21, 2010 at 11:21 pm
I have nothing to add, except my thanks for all the bloggers and essayist Mr. Duncan. As one of you mentioned, this is better than a class. I read today one little ray of hope: the Constitution is selling like hotcakes. The Heritage Foundation, the Cato Institute, and even our Congressional offices who have free copies are experiencing a rush of requests for the Constitution.

Dave says:
May 22, 2010 at 9:24 am
Roger, I wholeheartedly agree. Thanks for taking the time to write so many well thought out comments for this project. You used the word “drifted” and that is a word that has found its way into my vocabulary with increasing frequency. Paul Rahe used it in the title of his book Soft Despotism, Democracy’s Drift. I haven’t read it yet, but it did get me to read selections of Tocqueville–check out the short chapter six of part four in volume two entitled What Kind of Despotism Democratic Nations Have to Fear. Tocqueville foresaw the Nanny State and the Administrative State 175 years ago.
I’m not well read enough to see the big picture yet, but I’m going to keep reading.

May 25, 2010 – Federalist No. 20 – The Same Subject Continued: The Insufficiency of the Present Confederation to Preserve the Union, from the New York Packet (Hamilton & Madison) – Guest Blogger: William C. Duncan, director of the Marriage Law Foundation

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Tuesday, May 25th, 2010

Federalist 20 is one of a series of essays that discuss the governmental precedents of other nations as illustrations of some of the weaknesses of the Articles of Confederation. In it, James Madison discusses the Netherlands, painting a picture of a weak government held together by a strong magistrate and the pressures created by hostile surrounding nations. Madison underscores the fact that the government has overstepped its constitutional bounds on occasion because those bounds do not allow it to meet emergencies.

A lesson here is that a weak and ineffectual government is a threat to liberty just as an overly strong and active government would be. He explains that the experience of the Netherlands demonstrates: “A weak constitution must necessarily terminate in dissolution for want of proper powers, or the usurpation of powers requisite for the public safety.” The implication for the United States Constitution is that it must create a government capable of meeting true emergencies and dealing forcefully with threats from other nations. The failure to do so not only could result in dissolution, but ironically, could lead to too strong a government: “Tyranny has perhaps oftener grown out of the assumptions of power, called for, on pressing exigencies, by a defective constitution, than out of the full exercise of the largest constitutional authorities.”

Madison attributes the weakness of the constitution of the Netherlands to “the calamities brought on mankind by their adverse opinions and selfish passions” and recommends that Americans “let our gratitude mingle an ejaculation to Heaven, for the propitious concord which has distinguished the consultations for our political happiness.”

In addition to evoking gratitude, there is another important lesson in Federalist 20 for current political debates.

In the Pennsylvania Convention, John Dickinson had taught: “Experience must be our only guide. Reason may mislead us.” At the end of Federalist 20, Madison explains why he has spent time describing the precedent of other nations in words that echo Dickinson’s: “Experience is the oracle of truth; and where its responses are unequivocal, they ought to be conclusive and sacred.”

An obvious application of this point is to the ongoing debate over whether our government should continue to press for greater and greater social controls. It would seem obvious that the unequivocal disaster of socialist and communist governments ought to warn us away from that precipice.

More generally we can heed the Framers’ example of willingness to learn from experience rather than to trust only in their unaided ability to reason out new solutions. Subtle thinking and cleverness have their place but must be disciplined by a willingness to learn lessons from human experience. One of the greatest strengths of the U.S. Constitution is its dual application of (1) the principles of self-government learned in the colonial experience and (2) the lessons of history derived from careful study and reflection.

Returning to a theme from the discussion of Federalist 17, there is a temptation to apply not experience, but ideology, to problems we face as a nation. Doing so appeals to a hubristic temperament. Some will always be dissatisfied if political reality is not made to conform to prefabricated theories even when doing so requires compulsion and control. In fact, the ability to control society may be the attraction of such theories; at least to some of their adherents.

The Framers eschewed easy answers and paid the price in experience, deliberation and study to create a secure foundation for our national government. That foundation incorporates the lessons of experience. Our response to current challenges must do the same.

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

16 Responses to “May 25, 2010 – Federalist No. 20 – The Same Subject Continued: The Insufficiency of the Present Confederation to Preserve the Union, from the New York Packet (Hamilton & Madison) – Guest Blogger: William C. Duncan, director of the Marriage Law Foundation”

  1. Charles Babb says:

    This morning I sent the following message to my children.

    “Those who are not informed of what they possess will not recognize when it is taken from them. Nor, can they preserve it for their prodigy.

    William Duncan has blogged an informative op ed in response to our reading of FEDERALIST No. 20 this morning and I invite you to take a few minutes and read it.

    http://constitutingamerica.org/blog/?p=578

    Love,
    Dad”

    Understanding what is needed won’t help much if I don’t take some positive step toward implementation. Eventually we can all begin to demand that those seeking elective office exhibit an of understanding of and a desire to support the truths we believe in.

  2. Maggie says:

    Madison and Hamilton state that “a weak constitution must necessarily terminate in dissolution for want of proper powers, or the usurpation of powers requisite for the public safety.”…..It is in the name of “safety” that the government has continued their unrelenting power grab. I’m sure we have all seen what an overbearing parent does to the will of a child. When does a parent let the child grow up and fend for himself? This goes for both “safety” concerns as well as being financially responsible. How brilliant these two men were when they said, “let our gratitude mingle an ejaculation to Heaven, for the propitious concord which has distinguished the consultations for our political happiness.” Our “new” system works. Why are we not rejoicing to God that it has brought us thus far and doing all we can to protect it rather than looking back with fondness upon the many systems that have failed time after time?

  3. Susan Craig says:

    What crystal ball did they have? Or was it just a true understanding of history and its lessons?
    This paragraph brought me up short!

    This unhappy people seem to be now suffering from popular convulsions, from dissensions among the states, and from the actual invasion of foreign arms, the crisis of their distiny. All nations have their eyes fixed on the awful spectacle. The first wish prompted by humanity is, that this severe trial may issue in such a revolution of their government as will establish their union, and render it the parent of tranquillity, freedom and happiness: The next, that the asylum under which, we trust, the enjoyment of these blessings will speedily be secured in this country, may receive and console them for the catastrophe of their own.

    We have Michigan, California, Louisianna and Arizona. We have Islamic radicals, several countries that don’t like us very much (Venezuela, North Korea and Iran) not to mention those that wouldn’t mind seeing us taken down a peg.

  4. Ron Meier says:

    Thanks for the Dickinson quotes, Mr. Duncan, especially “Experience is the oracle of truth; and where its responses are unequivocal, they ought to be conclusive and sacred.”

    For the longest time, I had tried to show several otherwise very logical and rational friends, all with advanced degrees, including PhD, the folly of their thinking, by comparing reality to their ideology. For example, an atheist friend believes Radical Islam is not a problem and we should not be fighting a war in the Middle East. I pointed out that an atheist has the most to fear from Radical Islam because they would be forced to convert to Islam or be killed. Since an atheist does not believe in life after death, they would be most disappointed to be killed before their otherwise natural death; yet, if they are true to their atheism, they should not convert. Therefore, I would submit that Atheists should be the ones whom we might expect to be most adamant in pursuing the war on Radical Islam, to insure that they are never faced with that impossible choice.

    After awhile it finally hit me that logical and rational reasoning, supported by experience and facts, was 100% ineffective in arguing with those whose ideology trumps all facts and experience. Now, generally, I ignore their comments and don’t waste time. It seems that my time is better spent discussing with those who are fence sitters and open to ideas rather than those who are confined to their ideological straitjackets.

    I wonder what Mr. Duncan might think about the utility of arguing with these kind of ideologues and what advice he might have for us so we can be more effective? Certainly marriage counseling has many similar circumstances and I would assume similar roadblocks are encountered there.

  5. Dave says:

    Mr. Duncan, well said. Thank you.

    Charles for Father of the Year!

    Maggie, I concur. With increasing frequency we are told of a crisis and the impending doom if we don’t grant Washington more power, control and more of our money.

    And we haven’t been rejoicing to God for our good fortune for over one hundred years, because some pointy-headed, hubristic “intellectuals” thought man could do better. Man can create that utopia that God has so cruelly and stingily withheld. After two world wars one would think our days of longing for a man-made utopia contrary to “the laws of nature and of nature’s God” would be over.

  6. Karen Sherer says:

    This study of the Federalist papers has really brought home to me the plain fact that a thorough knowledge of history is not “a useless course of study. I’ll never use it in my life. Why take it?” It is so very true that our current administration (and many others before it) DO rely on their pure ideological goals and either ignore or never learned the lessons of history.

  7. Bache says:

    The wisdom obtained and applied by the Founders required diligence, dedication and knowledge. The personal principles each contributing writer and scholar to our Constitution and foundation of our country came with sacrifice. I believed that they recognized their own inadequacies and were willing to listen to experience and to the history. B. Franklin once said, ” The doors of wisdom are never shut.”

  8. Susan Craig says:

    There is a book titled ‘The World Turned Upside Down’, that demonstrates that reason comes out of religion and that eventually all genres of thought that say religion is inimitable to reason and logic eventually hit a point which is unreasonable and illogical. The author is Melanie Phillips.

  9. Carol Frenier says:

    I, too, continue to be interested in the impact of ideology on both 1) failing to see the importance of experience and 2) the desire of some to expand the power of central government. Can you recommend a good history of ideological development in American politics?

  10. Laurie says:

    I was concerned that no one responded to Carol Frenier’s writing yesterday about what this ideology from Europe is that we keep referring to as the one that is a threat to the America that our founders gave us. I immediately think of a mandatory course in 11th grade, “Americanism vs Communism.” Bet that’s not mandatory anymore. Whether you want to call it Socialism or Communism, it is an ideology that gives the wealth to the political or ruling class and makes the rest of us basically equal. (See Russia, China, Cuba, Venezuela) A European book that was recently translated into English is “The Coming Insurrection” by the Invisible Committee, how to bring down governments, even the family. (Amazon.com has it) Also, study Saul Alinsky’s Rules for radicals and the Cloward and Piven strategy, you can Google those. They also preach how to overwhelm the welfare system in order to bring American capitalism to an end. The Drudge Report has a story today how “government provided benefits are at record high” and “paychecks from private businesses at record low.” (About 42%) Who is going to pay all these benefits? Unions want a 165 Billion Dollar bailout for their pensions. State worker unions want 100 Billion Dollar bailout. This is what the radicals want. Who is rioting in Greece? Labor Unions and Radicals. I’m afraid we are being set up by Overspenders in Washington, who want to collapse free enterprise and all our liberties. That is why this Federalist study, learning what Americanism is again is so terribly important.

  11. Carolyn Attaway says:

    As Susan pointed out, the paragraph that begins ‘This unhappy people . . .’ could very well be written to some extent of America today. Reading headlines such as “Redistribution Victory: Private Pay Plummets, Govt Handouts Soar”, “ObamaCare Lawsuit Reveals National Grab to Regulate Individual Decisions”, and “Nonpartisan Proof: Cap-and-Trade Is an Economy-Killer”, brings home the point addressed in Paper 20 that ideology over experience always leads to failure. I believe that many nations have their eyes fixed on us, some praying for our strength, and others for our demise.

    Which leads me to the most important statement that I have read so far in the Federalist Papers; with added words “Experience is the oracle, the divine revelation of truth; and where its responses are unequivocal, absolute, they ought to be conclusive, decisive and regarded with reverence, sacred.

    As Mr. Duncan points out, “Subtle thinking and cleverness have their place but must be disciplined by a willingness to learn lessons from human experience. One of the greatest strengths of the U.S. Constitution is its dual application of (1) the principles of self-government learned in the colonial experience and (2) the lessons of history derived from careful study and reflection.”

    Of this great strength in our Constitution, can we make the argument that our Congress is not paying much heed to the second application, and that many of America’s citizens themselves have forgotten the valuable lessons of history? I am always taken aback when I mention a relatively known country such as Wales, and the large number of people who do not even know that Wales is a country, much less where it is located.

    So how can one study the history of a country, if they do not even know that that country exists? One of my favorite videos on AFV is when the father of a little 2 year old girl asks her to point to various states and cities on the map, and when she is correct in her answer, she does the “Smarty Pants Dance” (It still makes me giggle) Anyway, maybe we should take this lesson and apply it to students of all ages, reinforcing the idea that knowledge of history makes one very wise.

  12. Kay says:

    The premises and arguments of The Federalist Papers are seeping into my being. Two weeks ago I wrote a two page letter to my congressman (remember the NY 23rd district race) with concerns, and ended it with: “Our founders were wiser than the whole Congress put together today, having foresight because they had hindsight on what works and does not work for a nation to prosper. They did not live in the moment because they desired that the Constitution be a lasting document, not like the legislation Congress is passing that will destroy us as a people.” Because of the essayists and commentators on this project, my thinking is being refined and focused on the whys behind our wonderful Constitution. May we all have opportunities to pass onto others what we are learning.

  13. The Ransom of Reason

    Reason be and reason we
    Away our distant shores
    Wander not and wanton trot
    Afraid of written mores

    Did we not through seasons see
    The meaning, yet for many
    We forgot the how,
    We riddled out the penny

    “I know this and I know that
    Believe me for I’ve the vision
    Follow me and listen now
    For I rewrite the mission

    We is the forgotten us
    It matter not for you
    I seek your best and vest my truths
    It is I who reap the view.”

    Freedom this and Freedom that
    Ring in empty vestibules
    History renders ghosts forgotten
    Lost the written tools

    “I seize the rapture
    Seek doleful and the bane
    Meeker making spirit spree
    I linger not in vain

    Feed the weakness, starve the heart
    Watch the soul regress
    Rhyme and reason take their toll
    Happy opportune the guess.”

    By Janine Turner
    May 25, 2010

  14. Laurie says:

    The God that the founders turned to in 1776, is the same One today. Without Him, we will not succeed in our desire to re-found our nation on the principals of the Declaration of Independence and the Constitution. Make no mistake. Without Him, we will be overwhelmed by the agenda from others. Our founders didn’t just have incredible knowledge of history, they believed in God, and His special purpose for America. That was their strength. We must have the same strength today. Those who believe in America, must believe in the God of our Founders, Who gave the incredible power and foresight and knowledge to help them to create our exceptional-ism, never before in the history of the world, a country of freedom and liberty and justice for all. Truly, a miracle.

  15. Maggie says:

    Janine……that’s absolutely beautiful!

  16. Roger Jett says:

    Laurie, I agree. Even the “Deist” of our day can see that we live in “a time that try men’s souls”, but it will require that “we the people” once again awaken to the faith of our fathers. A faith that not only acknowledged Him the “Creator” as He was ….., but that He is and that He will always be the “Sustainer” and “Giver” of all good things. You said in your post that “they believed in God, and His special purpose for America.” There are those who dispute that and have long been laboring in the margins of our society to knit a fabricated false rewrite of history. Unfortunately, they are no longer operating in the margins. They are positioned in high places and with each day they seek to entrench. As you say, “Without Him, we will be overcome by the agenda of others”. We can reason and trust that He that is the “First Cause” is more than able and can effect the restoration and sustainment of all that we desire, “a country free and liberty and justice for all”.