Incidentally, the reason for this trade-off was a product of good public policy: these states wanted to be settled in the easiest and least chaotic manner possible. An essential element of that was ensuring that unappropriated public lands had “clear title”—a situation discussed at length in Peruvian economist and political scientist Hernando DeSoto’s seminal work, “The Mystery of Capital.”
Throughout this study, essayists have shown how the American federal republic has empowered its own constituent states to retain substantial self-government without sacrificing the general powers needed for national defense against enemies foreign and domestic, retaining the freedom of interstate commerce, communication, and travel that affords the American people one of the highest living standards in the world.
In the past century, the centralization and bureaucratization of both the federal and state governments have weakened citizen self-government, but the words of the original Constitution as amended in the years immediately succeeding the Civil War, and the intentions of the Framers and those citizens who have remained loyal to their intentions, guided by their principles of equal, natural (and therefore unalienable rights remain as a standard for those who continue to hold certain truths to be self-evident.
Constitutions can be thought of as institutional arrangements that shape the way that individual preferences will be expressed and collective decisions made within a government. The provisions of a constitution also reflect preferences, but the provisions of a constitution may have long-run impacts upon the way that individual preferences are translated into legally binding collective decisions well into the future. Some of these decisions will have implications that are unforeseen and unintended, even if the specific provisions of a constitution were intended by its framers to have different results. In particular, the constitutional framework of a state or nation shapes the path dependent development of that political community. Once the highest law of a polity has been designed, political, legal, and economic decisions are made with that framework in mind. Decisions involving sunk costs are made premised on a particular legal order. Once those decisions are made, it may be difficult to reverse them. The political and economic trajectory of a polity may be set in place, and the momentum built up over history may be hard to swerve in a different direction. Such can be seen in Kentucky’s experience with its state constitutions.
State legislatures normally have had only very few, basic constitutional procedural requirements regarding the passage of legislation. Most state constitutions stipulate that laws can be enacted only after bicameral passage of identical measures, followed by presentment to the chief executive. There may also be requirements that bills receive “readings” on three or more legislative days before passage. Practically speaking, most legislative procedure is determined by internal rules of each chamber. These rules refer to bill referral to committees, methods of bringing bills to the chamber floor, procedures for disciplining members, etc.
Many of the early state constitutions did not provide a means by which the governor could block legislation through a veto. This reflected an anti-executive power bias that carried over from the opposition to the king in colonial times. Gradually, however, the powers of governors increased, and among the most important powers of the governor was the power to veto. In the 1990s, North Carolina’s governor was the last to gain the veto power. The veto power varies dramatically among the states, particularly regarding which measures are subject to veto and the ease with which the legislatures can override the veto. Many states now permit an item veto for appropriation bills, but not for other legislation. Proposed constitutional amendments approved as joint resolutions by the legislature cannot be vetoed by the governor, but instead in most states today go to the electorate for approval. In several states vetoes can be overridden by margins much smaller than the two-thirds requirement necessary for overriding presidential vetoes. In some states, only a simple majority of those elected to serve in each chamber is needed to override the governor’s veto.
The legislatures in American state governments developed alongside and even prior to the more famous and well-studied Congress of the federal government. Their origins can be found in the colonial assemblies that existed before the American Revolution. Those institutions developed structures, procedures, and qualifications for office-holding that influenced the development of the national legislature. This essay will briefly describe the development of the state legislatures and their relationship to the federal government.
Legislatures in the American colonies developed very quickly, largely at the request of local interests, not at the behest of the British government. These assemblies varied greatly from one another, although most, but not all, were bicameral, with different qualifications for office-holding and for voting for different chambers. These assemblies were not modeled after the British parliament, which in its modern form did not exist. In fact, the first legislatures in the American colonies were created long before the Glorious Revolution of 1688, which established the principle of parliamentary supremacy over the monarch.
In the Course of Human Events: A 90 Day Study of Important Dates in American History That Shaped the United States and Changed the World Preface: In the Course of Human Events, a reference to the opening of the Declaration of Independence that reads, “When in the Course of human events” speaks of dissolving political power bands […]
Utah has a fascinating history from the days before it was a United States territory to today. The first Europeans arrived in the area in 1765. In 1821, Mexico won its independence from Spain and claimed Utah for itself. In 1832, Antoine Robidoux built the first trading post in Utah, and in 1841, John Bartleson led the first wagon train across Utah to California. During the 1800s, Utah bore the indicia of western expansion. Many regard the completion of the transcontinental railroad at Promontory Summit, Utah, on May 10, 1869 as not only one of the most important historical events in Utah, but also one of the most momentous in U.S. history.
Utah stands unique in its history and traditions, and it cannot be understood apart from the influence of Church of Jesus Christ of Latter-Day Saints (the “LDS church”) and its adherents, the Mormons. Utah’s path to statehood began principally because of precipitous settlement by Mormons, who moved west after failed settlement attempts in New York, Illinois, and, most notably, in Jackson County, Missouri, where they had intended to establish an everlasting temple. In 1847, Brigham Young, by then the leader of the main branch of the LDS church, entered the Salt Lake Valley with 148 comrades and founded Salt Lake City. At the time, the area was part of Mexico, but early in 1848 through the Treaty of Guadalupe Hidalgo, Mexico ceded 525,000 square miles, including present-day Utah, to the United States.
Unlike the U.S. Constitution, the Michigan Constitution addresses in detail the administrative state over which the governor presides. For example, there are no more than “20 principal departments. They shall be grouped as far as practicable according to major purposes.”65 In addition, unless legislatively vetoed, the governor has plenary authority to reorganize the executive branch via executive order.66
The Michigan Constitution also establishes a statewide elected state board of education;67 elected statewide boards for the University of Michigan, Wayne State University, and Michigan State University;68 an appointed civil rights commission;69 an appointed state transportation commission;70 a Michigan nongame fish and wildlife trust fund;71 a Michigan game and fish protection fund;72 a Michigan conservation and recreation legacy fund;73 a Michigan veterans trust fund;74 and a Michigan natural resources trust fund.75
When one is tasked to write about “the constitution,” my guess is not many ponder a threshold question: “Which constitution?” With the anniversary of the signing of the United States Constitution occurring on September 17 (dubbed “Constitution Day” – and also an anchor date for Patriot Week), one might naturally think the U.S. Constitution must be the topic. Not necessarily so. Because each state also has a constitution, each person lives under two constitutions.
Few people understand the U.S. Constitution well, and only a minute number understand their state constitution. As a former debater, I appreciate that one should understand both sides of an issue to become deeply informed. Likewise, to best understand our constitutions, the best course may be to compare and contrast them. Accordingly, this article will review the basic contours of the constitutions of the State of Michigan and the United States to discern their commonalities and yawning differences. By necessity of space and time, this article will only address a few high-level topics such as age, origins, amendment process and the branches of government, and will not delve into the wonderful commentary that this comparison might yield.
Native American peoples lived in the area of present-day Montana for an unknown period of time before the arrival of the first Europeans in the 18th century. Most of present-day Montana was included in the Louisiana Purchase, which President Jefferson completed in 1803. The next year, President Jefferson commissioned the Lewis and Clark Expedition. Soon after, Catholic missionaries entered Montana. Beaver trappers followed shortly thereafter. Through the first twenty years of the 19th Century, the Salish people learned about Christianity because of their contact with the Iroquois people and with Jesuit priests. In the 1830s, the Salish people began sending emissaries to Jesuits in St. Louis, Missouri to request that a “blackrobe” (Jesuit priest) be sent to them in present-day Montana. The blackrobes were finally able to send a priest to minister to the Salish people in 1841.
Between 1848 and 1864, parts of present-day Montana were included in several U.S. territories, including the Oregon, Washington, Dakota, and the Idaho Territories. Montana was the site of the battle between the Sioux people and the U.S. Army, which we often refer to as “Custer’s Last Stand,” and it carries a lively history typical of the Old West.
State capitol buildings in the United States embody the constitutional commitments found within the text of each state constitution, buildings that some have called the very temples of democracy. Each state capitol building in the United States presents the basic, fundamental attentiveness of the state government to the people it serves. Some of the capitols are small, domed buildings with expansive wings, while others are tall, executive-style towers reaching upward toward the heavens. Some are cloistered in urban areas. Most are set in rural settings. Some harken back to classical Rome, while others celebrate the preeminence of modern man. One thing they all have in common: each embodies the values of their respective constitutions while continuously serving as the seats of governance for the states and their citizens.
In general, the shape and design of state capitol buildings can be understood in three common categories: the statehouse, the domed capitol, and the executive tower. The statehouse form generally has a flat or slightly pitched roof with some type of spire or lantern capping off the building. Some statehouses are built with flat fronts and square windows in a federal style while others incorporated columns and wide porticos. Many early American capitols have slightly pitched or flat roofs and small areas for assembly and the conduct of business. The first capitol was a flat, adobe structure in Santa Fe, while later colonial capitol buildings in the northeast generally had pitched roofs to allow snow and precipitation to roll off.
American state capital cities are an organic part of the American landscape. Capital cities sprung up along the natural waterways and pathways of American travel and commerce. Some grew next to the mighty rivers and others at the junction of major trade routes. Some are in the foothills while others are on the plains, some on the coastal bays and others far inland. Some emerged from the bareness of the great plains while others emerged from the small neighborhoods, burgs and towns that dotted the landscape. Some are located in major urban centers while others snuggle into smaller, rural communities. The fifty American state capital cities provide a unique study in the diversity and richness of the American experience.
The oldest American capital cities grew on opposite sides of the continent. Santa Fe was founded in 1610 as the first colonial American capital city followed by Boston in 1630. Santa Fe was designated as capital of the new Spanish colony of Santa Fe de Nuevo México and was situated in the foothills of the Sangre de Cristo mountains. Thirty years later the British Massachusetts Bay Colony established its capital on what was then known as Trimountaine, or Three Mountains, later to be renamed Boston after Lincolnshire, England previous home of some of the prominent colonists.
State government is designed almost exactly like the Federal government. In every state except Nebraska, state governments govern with a two-chamber legislature. The smaller, upper chamber, is called the State Senate and the larger, lower chamber, is called the House of Representatives, Assembly or House of Delegates.
There are three branches of government in every state: legislative, executive, and judicial. The balance of powers spread among three branches ensures a just and fair system. Most states have a governor, lieutenant governor, senators and representatives, most of whom serve in what is called a State Legislature. Other names used are General Assembly, General Court, or Legislative Assembly.
Along came Maine, where separation sentiment was growing. Many previous efforts to permit Maine to break away died in the Massachusetts General Court (legislature). But the times were catching up. Seeking to eliminate its Revolutionary War debt to the U.S. government, Massachusetts found easy money by selling off vast swaths of public land in Maine and by granting generous acreages to war veterans. Thousands of pioneer families left the crowded Bay State and trekked to the Maine wilderness seeking elbow room and new opportunities. In less than 30 years, the population more than tripled, from 91,000 in 1791 to 300,000 by 1820.
As Maine grew, so did discontent with its political and economic dependence on Massachusetts. Prosperous coastal merchants, eager to govern themselves, were the first to complain. But with continued population growth outside the old coastal towns, frustration spread to fishermen and inland farmers and woodsmen, who had little in common with the governing gentry. By 1800, they were spearheading the quest for statehood, citing a long list of economic and political grievances. The War of 1812 was the final nail in the coffin, even for the merchant class.
Barely 30 years after the contentious adoption of the U.S. Constitution in 1787, the experiment in self-government and democratic republicanism that enraptured de Tocqueville and other noted admirers of the new United States of America was at grave risk of collapse. Maine’s aspirations for statehood were at the heart of the hullabaloo. It was in a wrestling match with Missouri for admission to the Union. In fact, Members of Congress representing the District of Maine, as it was known—then belonging to Massachusetts—voted against legislation that would have admitted their home as a state even after longstanding agitation in Maine for statehood.
So why, when at long last statehood was within reach, did these officials and many of those they represented object to legislation that would unlock the door to statehood? Their reasons are at the heart of why we are “one nation, indivisible” and how small, remote Maine helped preserve the U. S. of A. at a grave hour in its early history.
Lewis and Clark famously made their way to the Oregon coast in 1805 while searching for a northwest passage. In 1818, the U.S. and Great Britain agreed to jointly occupy the region, which included portions of present-day Idaho, California, Montana, British Columbia, and all of Washington state. In 1840, the U.S. gained the territory through the Oregon Treaty, and settlers began to arrive via the Oregon Trail. The state’s establishment as the 33rd state in 1859 realized many, but not all, of the founding principles of the United States.
States, therefore, compete with one another for residents, for business, and ultimately, for tax dollars. And those competitive pressures incentivize state and local governing officials to provide the best government for the lowest cost.
Yet, sometimes that competition has negative effects — what political economists might label a “negative externality.” When the savings created by one state’s actions impose costs on other political communities, competition produces inefficiencies. This is best illustrated by state variation in how much is spent on environmental regulation and clean-up. States that are literally “up-river” can exact exorbitant costs on other states through their inaction. Likewise, in trying to attract business to their state, one state might dismantle regulations placed on corporations; neighboring states might follow suit in order to keep business from leaving. State-level variation and competition might, in other words, work against certain national goals, creating a “race to the bottom” where states undercut one another to create advantages in the short-term, but impose long-term costs on the national political community.
As he writes in Federalist 36, if the general government begins to tax a revenue source already occupied by the states, “the United States [federal government] will either wholly abstain from the projects preoccupied for local purposes, or will make use of the State officers and State regulations for collecting the additional imposition. This will best answer the views of revenue, because it will save expense in the collection and will best avoid any occasion of disgust to the State governments and to the people.”
Therefore, concurrent taxation encourages intergovernmental cooperation. It is a cooperation defined first and foremost by efficient tax collection — the reduction of government expense by the sharing of administrative processes — as well as transparency. In the above passage, the guardians of the public revenues are the state legislatures, who have an interest in maintaining their own fiscal authority and independence, and, most importantly, the people themselves, who have little desire to give away their hard-earned dollars to a wasteful government.
Every nickel spent by a state or local government ultimately comes from the pockets of some private entity, but often public monies are exchanged between governments. Intergovernmental transfer payments account for 23 percent of all money spent by state and local governments. Most intergovernmental transfer payments point “downwards” in the federal system, moving from larger governments to ones of smaller size. The federal government delivered $621-billion to the various states in 2016, and state governments sent $524-billion to various localities in that same year. Overtime, intergovernmental payments have grown as a share of state and local government revenues — a trend we will evaluate in the next essay — and the federal government has even come to make direct payments to localities in some specific instances.
Most forms of intergovernmental revenue take the form of grants — direct payments to a state or local government agency, with a specific purpose outlined by the grantee. The federal government, for example, sends billions of dollars it collects to the states for the purpose of constructing and maintaining highways. Likewise, state governments send some tax revenue it collects to localities for funding public health programs. The federal government even sends money to the states that the states then divide up and send to the localities.
If, “in this world nothing can be said to be certain, except death and taxes,” in the United States, taxes are a little more certain than death. Americans, after all, pay taxes to not just one national government, but to at least two additional ones as well: their state and locality. Paradoxically though, the framers of the U.S. Constitution believed that by establishing a system of multiple governments with independent taxing authority, the total tax burden placed on citizens would be less than it would be if one gargantuan government existed.
For anyone that has ever filed your own taxes, you know that it is highly technical and subject to precise calculations, lengthy procedure, and numerous exemptions. Yet, at its most basic level, the methods by which governments acquire money are political determinations — reflective of each community’s unique history, size, political culture, and available resources. The variation across different levels of government and between governments of similar scale reflects the political diversity American federalism nourishes. Understanding that variation in all of its complexity is the first step towards evaluating how federalism, despite creating many governments, can actually reduce the total tax burden placed on the American taxpayer.
Early in its history the U.S. Congress set up an orderly way for western lands to become states with status equal to the Original Thirteen. Senators and representatives in Congress remembered how unhappy the American colonists were under Great Britain’s rule, so unhappy in fact that they fought the American Revolution to become free of Great Britain. One of the most important acts that Congress passed was the Northwest Ordinance of 1787 that set up a system of government for the territory north of the Ohio River that became the states of Illinois, Indiana, Ohio, Michigan and Wisconsin. It was a model for other U.S. territories to follow when they wanted to become states.
New Mexico became the 47th state to join the union on January 6, 1912. This was shortly before Arizona was admitted on February 14, 1912. The New Mexico Constitution became effective on the day Congress admitted New Mexico to the union. The original document was ratified by the New Mexico Constitutional Convention on November 21, 1910. The voters of the State ratified the constitution on November 5, 1911.
The ratified constitution and eventual boundaries varied widely from what was originally proposed in the mid 1800’s. The New Mexico territory was formed following the end of the Spanish American War in 1848 through the treaty of Guadalupe Hidalgo. The territory initially consisted of parts of west Texas (which claimed the territory east of the Rio Grande river), most of present-day Arizona, and part of southern Colorado.
Even so, as the forty-sixth state in the Union, Oklahoma possesses a name that is derived from the Choctaw words okla and humma, meaning “red people,” and that name fittingly signifies the uniquely enduring importance of the Native population to the state’s identity. In no other state of the Union is the Native presence more important, more indelible, more enduring—and arguably, more honored in the state’s politics and culture. Yet the achievement of that relatively harmonious state of affairs was bitter and difficult, particularly for the Native population, which had to accept betrayals and abrogation of agreements at every step of the way.
Once a state, though, Oklahoma quickly took its place as an important center of the burgeoning petroleum industry, with the city of Tulsa being labeled “The Oil Capital of the World,” and the oil industry serving as a primary driver of the entire state’s booming economy. From the moment that Oklahoma had become part of the United States in 1803, growth had become its byword. It had gone in just a few years from being a raw and forbidding frontier to being a leading force in the growth of the world’s economy, a force now moving into higher and higher gear.
Just as Alabama’s boundary lines changed numerous times over the years, so too did its capital. The first was the territorial capital in St. Stephens in 1817, near present-day Jackson, Alabama. Then in 1819, Huntsville served as the temporary capital while a convention assembled to prepare a State Constitution. The first “permanent” capital was established in 1820 near the convergence of the Alabama and Cahaba rivers but a flood resulted in damage to the statehouse. The capital was soon moved to Tuscaloosa in 1826 to a new three-story building designed by the same architect, William Nichols, who designed the old capitols in North Carolina and Mississippi. The capital made one final move in 1846 to its current location of Montgomery, but a disastrous fire shortly after required its rebuilding.
Clearing title, the action of ensuring that someone owns a particular parcel of land “free and clear” is one of these actions. From the standpoint of real estate law, the importance is obvious: you cannot buy or sell or invest in a parcel of land unless the thread of ownership is crystal clear. But clearing title goes far beyond that—and is an essential element of a free and prosperous society.
DeSoto is emphatic that ensuring the clarity of title is one of the most-important, if not the most, single element that separates a rich and stable nation from a poor and unstable one. Without that clear title, people are hesitant to buy or sell a piece of property. Worse, without that clear title, people cannot use that piece of property to invest in their own future. They cannot better themselves, and without that prospect they lose hope. And it is that loss of hope, combined with economic stagnation, that leads to the collapse of a society.
Florida is the southernmost state in the contiguous United States, situated at the bottom of the Atlantic seaboard. It is a peninsula, bordered by the Atlantic to the east, Gulf to the west, Caribbean Sea to the south and the U.S. states of Georgia and Alabama form its northern border. Archaeologists believe the peninsula was first occupied by a nomadic group of hunter-gatherers around 14,000 years ago. These indigenous groups slowly adapted to a changing climate and grew crops, established large chiefdoms, and eventually numbered over 350,000 people by the end of the 15th century.
Florida was first sighted by Europeans in 1513, when Juan Ponce de Leon traveled north from Puerto Rico in search of natural resources, slaves, and potentially a new landmass for the Spanish colonial dominion. Although probably not the first European to set eyes on Florida, his expedition was the first officially sanctioned and recorded by the Spanish. He landed somewhere on Florida’s eastern Atlantic coast, but did not attempt to settle the region.
Born of ancient volcanoes in Earth’s prehistory and baptized by fire into the modern era by the bombs of the Imperial Japanese attack on Pearl Harbor, the history of the Fiftieth State is nothing short of legendary.
First discovered and populated by seafaring Polynesian peoples perhaps around the 12th century or even earlier, Hawaii would be thrust into global destiny by European contact when British Captain James Cook discovered and sailed past the island of Oahu on January 18, 1778. As a midpoint in the Pacific, the Hawaiian Islands would soon become a key strategic shipping hub that attracted merchants, missionaries, and militaries alike from around the world.
Washington State’s famous explorers are George Vancouver, Robert Gray and the American explorers Lewis and Clark. George Vancouver came to the Pacific Northwest with two ships, the Discovery and the Chatham. Vancouver named everything in sight, which included islands, mountains and waters. Puget Sound is named after Peter Puget, a lieutenant accompanying him on the expedition. To this day, we still have the names Whidbey Island, Mount Baker, Mount Rainier, and Hood Canal are all key geographical features in the state of Washington named by Vancouver.
The Washington State Constitution describes the fundamental structure and function of the state’s government. It consists of a preamble and 32 articles. This constitution is the second in Washington’s history. The first one was ratified in 1878, and the current version on October 1, 1889.
On March 2, 1861, President Buchanan signed the bill that created the Dakota Territory. Within this territory were included the present states of North and South Dakota, Montana and Wyoming. After creating the Dakota Territory, the federal government paid relatively little attention to it, given the preoccupation with the war. But as soon as there was sufficient population in the territory, the settlers in the Dakota Territory began taking steps to achieve statehood. Starting in 1868, efforts intensified toward the admission of Dakota, either as a single state or two different states.
Beyond the purchase of the Louisiana Territory, the first major move towards statehood and the need for a constitution in North Dakota came with one of President James Buchanan’s last acts as president of the United States. On March 2, 1861, just two days before Abraham Lincoln took the oath of office, Buchanan signed a bill creating Dakota Territory. This territory would later be divided into the states of North and South Dakota, as well as portions of Wyoming and Montana. At the same time, the Nebraska Territory was modified to appear much like the state it would become.
For many Americans, when the term “amendment” is mentioned, our United States Constitution often comes to mind. Among the document’s twenty-seven, most are aware of the First Amendment, especially the part about free speech. Another popular amendment is the Second Amendment: the right to bear arms. These Amendments to our United States Constitution have even gained nicknames such as “1A” and “2A.”
Unfortunately, beyond the popular terms of our national Constitution, too little understanding exists about it, including reasons for limiting changes to the document. This is true as well for our state constitutions, though amended more often. Unless a major news story runs where a constitutional topic goes viral, little more is studied to gain a complete context especially for the true meaning and history behind the Framers’ intentions.
Each element should have liberty, which “in no way consists in doing what one wants” but rather in “having the power to do what one should want to do and in no way being constrained to do what one should not want to do.” What one should want to do is to observe “the law of nature, which makes everything tend toward the preservation of species,” the “law of natural enlightenment, which wants us to do to others what we would want to have done to us,” and “the law that forms political societies,” which aims at the perpetuation of those societies. Certain moral virtues inhere in liberty itself. Republicanism consists of citizens who rule one another reciprocally, doing to one another as they would have done to themselves; federation enables republics to follow the political law of self-perpetuation.
For more than a century, the constitutional republicanism established by the Founders increasingly has given way to administrative government at the national, state, county, and even the local levels. As a result, Americans have needed to deliberate together less. The decline of civility in what remains of American political conversation may well originate in the decline of genuine civic life, genuine self-government, as part of the American way of life.
If the distinctive human characteristic is the ability to speak and to reason, then what is good for such a being must not only allow but encourage it to exercise that ability, just as it must be good for a horse to have room to run. To live in societies ruled by tyrants terrorizing their subjects with brute force must be bad for human beings, somehow beneath their real nature—hence the adjective ‘brute.’ By nature, human beings belong in civil societies, societies in which they may speak and reason together, deliberate with one another on what they should do, how they should act. Old-fashioned mothers would tell unruly children to ‘be civil,’ to ‘keep a civil tongue in your head.’ A civil tongue is one indirectly but closely attached to a reasoning brain, a brain more fully developed in accordance with its nature than the brain of a madman or a dolt, to say nothing of a barking pit bull or a chorusing frog.
Civil society begins in the home. Parents command children, ‘for their own good.’ But father and mother themselves properly form a civil relationship, ruling one another by mutual consent, by shared responsibilities, authority, and obligations. Outside the home, what we call civil society works the same way, as fellow citizens form businesses, churches, clubs, and schools. Families and civil associations alike govern themselves deliberately, reasonably—insofar as they are genuinely civil, institutions fitted for mature human beings. Children learn to do the same thing, choosing up sides for games, ‘ganging up’ (for better or for worse), imitating the adults (also for better or for worse).
State and local officials have a duty to resist injustice and tyranny imposed upon their people by our central government. American citizens need to remind not only candidates for federal office, but also candidates for state office, of this fundamental constitutional reality, right, and duty. That is the only way (humanly speaking) we will reclaim and preserve our freedom.
Sovereignty is the very essence of what makes a “nation” a “nation”—a free and independent state in which the people of that nation exercise total control over the governance of that nation. Clear and enforceable borders are an essential element of that sovereignty. Without them, the nation itself cannot be defined, and the sovereignty of that nation falls as a matter of course.
These truisms have been bedrock concepts of both political science and international law for centuries, essentially tracing their roots to the Peace of Westphalia of 1648. A nation’s sovereignty is, in fact, enshrined in the central body of international law, the United Nations Charter, which says that, “nothing should authorise intervention in matters essentially within the domestic jurisdiction of any state.” But without enforceable borders, what determines the “domestic jurisdiction” for a state? And just how can a state govern itself if its borders are not secure?
When federalism fails in a large republic, the success of the government itself comes into question. The Founders knew the enemies of our republic were national factions demanding more and more from other citizens, e.g. farmers, seniors, auto companies, solar panel makers, homeowners, doctors, patients… students. Once factions are nationalized, their combined negative effects on the economic and political health of a Nation can be catastrophic.
What ought to add to the State’s obligation to keep its creation, the federal government, under control, exists in the fact that the Declaration of Independence identifies the sole purpose of the creation of the States is to “secure the Rights” of the people. A federal government unlimited in its power, or limited only by its own will or whim is a totalitarian government, putting the rights of the people at risk. When the States are not keeping their creation within its limited and defined bounds, they are failing to secure the rights of the people. Thomas Jefferson articulates this danger in 1812:
“when all government, domestic and foreign, in little as in great things, shall be drawn to Washington as the centre of all power, it will render powerless the checks provided of one government on another…If the States look with apathy on this silent descent of their government into the gulf which is to swallow all, we have only to weep over the human character formed uncontrollable but by a rod of iron…”
“Resolved, That these United Colonies are, and of right ought to be, free and independent States, that they are absolved from all allegiance to the British Crown, and that all political connection between them and the State of Great Britain is, and ought to be, totally dissolved.”
By RIGHT our governments are no longer colonies, but by declaration of that Right are recognized to be “free and independent States.” Simply put, we are not property of the king, but we know that all men are created equal and endowed by their Creator with certain unalienable Rights. Since we are not owned by the king, we need not ask his permission to be free, we must simply declare it. Through the Declaration of Independence we not only make this fact known to the world, but we give clear definition to what we mean when we created, “free and independent States.”
Many of the executive records have both the signatures of the Secretary of State and the Governor because the Secretary of State serves as the Governor’s personal notary public. When the Secretary of State is witnessing the Governor’s signature, the Great Seal of Alabama is used as the “notary” seal. The executive records are composed of writs of arrest, contracts, deeds, and leases, as well as listings of abandoned vehicles found in the state, information on municipal incorporations, and the names of all the notaries publicly registered in Alabama.
The Secretary of State is Alabama’s “Chief Election Official,” and the office is given many different election duties under state law. Election records include vote totals, certified ballots, and records showing how much money candidates and political committees raised and spent during an election. Copies of certificates of election, commissions, and oaths of office are also on file for many elected officials.
Not all states can say that their first public act was defying the president of the United States. Arizona, the last state admitted to the Union from the contiguous United States, can.
Like many westerners then and now, Arizonans were anxious about and skeptical of concentrations of power, especially power wielded from afar, and, in writing their constitution, they sought to see it widely dispersed. (In this, Arizona’s Founders were not unlike the American Founders, increasingly distressed at their local government affairs being directed from the metropole, in violation of what they understood their English liberties to guarantee.) This meant not only that the state government would be carefully limited and easily checked by the people, but also that its constitution would ensure private actors could not wield undue influence in the state.
State Attorneys General (AG) serve as the chief lawyers for their respective states and work to defend state sovereignty in a variety of contexts. They represent the interests of their states in court proceedings by defending state laws against legal challenges and, in many cases, enforcing state laws in both civil and criminal actions. They frequently are called upon to provide legal advice to state officials and to issue legal opinions on a range of issues. They also may oversee critical government programs, such as (in Texas) the state’s child support function.
While similar to their federal counterpart—the U.S. Attorney General—these state officers perform functions that vary greatly from the federal context, specifically in three ways.
Indeed, opponents of the Constitution had cited “Montesquieu on the necessity of a contracted territory for a republican government.” Federalist 9. A large territory, Montesquieu had supposed, encouraged a monarchy, as monarchies were more adept at communications over distance and operate on principles that do not require thorough familiarity with the governed (rather they require familiarity with a small body of subordinate princes). The Constitution resolved these issues by creating a federal republic, where local rule prevailed in areas touching the daily lives of the people.
To many, the position of state governor is a faint echo of the president of the United States. The president is in charge of a vast empire stretching coast to coast with global implications while governors are seen as mere presiders, not much more than little men running little fiefdoms perpetuating their own schemes for self-interest and self-aggrandizement.
That view, of course, is blatantly false. The position of governor in the American political system far predates the concept of a president, though the role of the American president is a noble position of service as first exemplified by George Washington who refused a crown to rule as king and instead chose to serve through a presidency. Governors in the American colonies maintained relations with overseas powers and oversaw the vast expansion of the American state. Governors oversaw massive political changes as state constitutional systems were created. Governors laid the foundation for the modern American state through their vision, leadership, and administration.
Unfortunately, the Court cast aside Justice Frankfurter’s warning that judges should stay out of the apportionment controversy and let the democratic process resolve it. Where wise men feared to tread, the justices foolishly rushed in. In 1962, in Baker v. Carr, they decided that such issues were “justiciable,” after all. Two years later, in Reynolds v. Sims, they decided that the Equal Protection Clause of the Fourteenth Amendment supplied the solution. All legislative districts, whether congressional, state legislative, or local, had to be equal in population to be constitutional. The history of the Equal Protection Clause contains no evidence that the Congress or the states intended it to address this issue. Indeed, section two of that amendment addresses a very specific instance of representation, that is, a state’s representation would be reduced in the House of Representatives by the proportion that it denied its adult male citizens the right to vote on racial grounds. The framers of the amendment were fully aware of political representation, yet did not consider the Equal Protection Clause itself applicable broadly to representation or voting.
States also apportion their state legislative districts and determine how local electoral districts are apportioned. State constitutions typically provide for regular reapportionment and fix who–legislatures, courts, commissions–is to conduct that reapportionment. Local districts, such as county commissioners, school boards, and junior college districts, are included in this process, even if they perform multiple functions, as long as one of those functions is legislative and the body is elected by districts. The Supreme Court has recognized one exclusion, in Ball v. James (1981), for certain special governmental units that have only limited legislative powers, such as water districts. For those, voting and representation can be apportioned on the basis of amount of water rights or use, rather than population. The distinction between special and general governmental bodies is none-too-obvious, however.
In a republic, two distinct principles are essential to political influence, voting and representation. Although there is no logical connection between any particular systems of voting and representation, there is a practical overlap. It is not astonishing, therefore, that allocation of voting and representation not only have been addressed in all republican constitutions, ancient and modern, but that conflicts over these issues have flared up in American history. “No taxation without representation” was one potent Revolutionary War-era slogan–and continues to be an (avoidable) obsession with some residents of the District of Columbia and with its municipal government. That slogan arose out of fundamental differences between English and American conceptions of voting and representation that had evolved from the experiences of living under distinctive physical and social conditions.
Voting qualifications and representation have been major controversies in several periods of American history. The Philadelphia Convention in 1787 was deadlocked several weeks over the representational structure of the proposed Congress and nearly broke up over the matter before Roger Sherman and Oliver Ellsworth of Connecticut presented the current compromise system. The constitutional upheaval of the second quarter of the 19th century during the “Age of Jackson” that produced numerous state conventions was triggered by popular restiveness over the outdated systems of voting and representation. One particularly tragic-comic event during that time was the Dorr War, a “civil war” in Rhode Island in 1841/2. It was precipitated by an attempt to reform the voting qualifications and legislative apportionment in place since the old colony’s royal charter had been made, with a few qualifications, the new state’s constitution at independence. Once more, in the 1960s, voting and representation became major constitutional issues. This time the matter was addressed through litigation in courts, rather less democratic than constitutional conventions and less dramatic than civil wars, no matter how small.
Greenwich, Connecticut, where I live today, began as a colony founded in 1640 by a group of Englishmen that included daughter-in-law of John Winthrop, the founder of the Massachusetts Bay Colony and author of the famous “city on a hill” sermon. While the Town of Greenwich, population 61,000, is old, its modern charter arrived in 1975. The charter is filled with provisions for budgets, elections, flood control, health, home rule, ordinances, parks and recreation, zoning, parking, public works, sewers, a board of estimation and taxes, a town council, selectmen (think mayors and deputy mayors), and a town clerk.
As this litany of charter provisions shows, a town or city touches almost every aspect of the daily life of its people. Whether you are driving on a road, visiting a park, waving to a policeman directing traffic, taking in the bustle of your local commercial district, or simply parking your car, you are working with your city government and your city government is working for you. A city government is always busy making a great many households into one community, into its own little “city on a hill” as John Winthrop would have said. A city government not only must do all these things – imagine a world without police or firemen, or in the case of Greenwich, public beaches! – it must also pay for them.
Mississippi followed a long, winding path to reach statehood. Following thousands of years of various Native Americans inhabiting the landscape, European powers burst upon the scene in the 1500s. Between then and the late 1700s, Spain, France and England had all claimed at least portions of the area we now know of as Mississippi. When the fledgling United States acquired the area in the late eighteenth century, it took nearly twenty years before Mississippi became this nation’s twentieth state.
Congress established the Mississippi Territory on April 7, 1798. Spain had claimed a large portion of the area but had given up much of its rights by 1795. Initially, this region consisted of a strip of land between the Mississippi and Chattahoochee Rivers but by 1812, it encompassed all of the present-day states of Mississippi and Alabama. The territorial government consisted of a governor, three judges and a secretary who served as a ruling council. Once the population level reached a certain number, the territory could apply for the second territorial stage which included an elected assembly and a delegate to Congress. Eventually, a territory could apply for statehood.
The machinations behind the scenes that resulted in the Residence Act are perhaps the first great compromise of the new Republic. The northern states did not want the capital in the South. The southern states did not want it in the North. And no state wanted it located within the confines of any other, thinking it would give that state an unfair advantage in the affairs of the new nation.
As they saw it, the independence of the capital city from the governments of the other states was an additional safeguard of our liberties and of the new system of government created by the U.S. Constitution based on checks and balances of power not just between the three branches of the federal government but between the federal government and the states.
If a particular power is allowed (under whichever rule), it still should not be an unlimited power. Moreover, not all powers are legitimate for any given local government or for any such government. Under current law of local government, it is incumbent on the state legislatures to create institutional arrangements that do limit power, or that appropriate state constitutional limits be in place.
Every year elections are held in the United States.
Federal and state elections every other year (except a few states who are truly “off-year” outside of the two-year cycle). Local elections, county and municipal, are held somewhere every year.
There are approximately 88,000 local governments, districts, and commissions containing over 500,000 elected officials.
Many local offices are nonpartisan, meaning not party affiliated. School Boards and small cities and towns assume local functions are not truly partisan. Is there a Republican or Democrat way of collecting trash or plowing snow?
Arkansas is governed under its 1874 constitution, which is its fifth since statehood, and commonly known as the “Thou Shalt Not” document. It reflected the general suspicion of government power that had been prevalent in the state since entering the Union. Most of these revisions placed into the document were highly restrictive and negative in nature. County governments became more powerful as administrative units of the state, with jurisdiction over roads and bridges, local judiciary, and taxation and spending. The state’s powers to tax and borrow were severely limited, the terms of elected officials were reduced from four years to two years (changed to four years by a constitutional amendment in 1984), the number of elected county officials was increased from two to ten, and the legislative sessions were biennial, limited to sixty days. The governor’s power was greatly reduced, and executive power was divided between seven constitutional officers.
Most Americans have poor awareness and understanding of local government. The decisions and activities of the diverse array of elected and appointed officials go unreported, or under-reported. Holding local power accountable is one of the greatest problems in America today.
Corruption and incompetence are more prevalent than ever. Land use can make or break fortunes, and help or harm a community, especially in the wrong hands. Unfortunately, conflicts of interest are predictable around land speculation. Misuse of public funds, especially directing contracts to friends and family, or for unrecorded payments, is always possible.
Formation of today’s traditional Midwest took root in the years after the Treaty of Paris ended the conflict known to Europeans as the Seven Years War, known in America as the French and Indiana War. Signed in 1763, this resolution gave the British nominal control over the land from the Atlantic to the Mississippi. During the Revolution, Indiana was the site of a battle for Fort Sackville, at Vincennes. As American forces took the fort, they turned toward an effort driving out the British out of places like Illinois and Michigan, the ultimate objective being Detroit.
After the war, the much-maligned Continental Congress took important steps in organizing these areas. They adopted the Northwest Ordinance of 1787, with the idea that Ohio, Indiana, Illinois, Wisconsin, and Michigan would eventually be divided into five states of the union. From the time Ohio became a state in 1803, Indiana’s leaders were hard at work on achieving this end.
Early Colorado never devolved into the anarchy that had characterized California in its own early gold rush years. Because about thirty percent of Colorado’s miners had experience in California, they understood the importance of creating effective local self-government immediately. Thus, the miners’ districts were quickly established. Experienced code writers traveled from town to town, helping to create local law.
Defying the nominal authority of the Kansas territorial government, the settlers in September and October 1859 created their own ad hoc government for what they called the “Territory of Jefferson.” Provisional Governor Robert Steele addressed the opening of the Jefferson legislature on November 7, 1859. He explained that the people had been denied protection of life and property; being sovereign, they had taken measures for their security.
Consider some recent examples of the Court admitting errors on constitutional issues. In United States v. Curtiss-Wright (1936), the Court upheld a statute that delegated to President Franklin D. Roosevelt authority to prohibit the sale of arms in the Chaco region in South America whenever he found “it may contribute to the reestablishment of peace” between belligerents. The Court then added extraneous language (judicial dicta), claiming that the President possesses “plenary and exclusive” power over foreign affairs and serves as the “sole organ” in external affairs. Anyone reading the text of the Constitution would understand that the Framers did not place all power over external affairs in the President. Clearly that power is allocated to both Congress and the President.
In 1916, Congress passed legislation to regulate child labor in interstate commerce. Two years later, in Hammer v. Dagenhart, a 5-4 Supreme Court struck down the statute as unconstitutional. Congress did not accept judicial finality. It passed legislation to regulate child labor, relying this time on the taxing power. In Bailey v. Drexel Furniture Co. (1922), an 8-1 decision struck down that legislative effort. Congress passed a constitutional amendment in 1924 to provide authority under the commerce power to regulate child labor, but by 1937 only 28 of the necessary 36 states had ratified it.
Instead of accepting judicial finality, Congress passed legislation in 1938 to regulate child labor through the commerce power. In 1941, the Supreme Court unanimously upheld the statute. As to its decision in 1918, the Court remarked that it “was novel when made and unsupported by any provision in the Constitution.” A remarkable statement. Not a shred of constitutional support. The Court in 1941 repudiated not only the doctrine of judicial finality but the assumption of judicial infallibility. The motive and purpose of a regulation of interstate commerce are matters, said the Court, “for the legislative judgment upon the exercise of which the Constitution places no restriction and over which the courts are given no control.”
According to the doctrine of judicial finality, the Supreme Court has the last word in interpreting the Constitution unless it changes its mind or the Constitution is amended. This doctrine, widely accepted, has no basis in the historical record. In part, that is because the Court, as with the other political branches, makes mistakes. Chief Justice William Rehnquist expressed the reason quite crisply in Herrera v. Brown (1993): “It is an unalterable fact that our judicial system, like the human beings who administer it, is fallible.” As this article will explain, when the Court errs it can take six or more decades to recognize a judicial error and announce a correction.
de Tocqueville links local government to being fundamental to a free people:
In the township, as well as everywhere else, the people are the only source of power; but in no stage of government does the body of citizens exercise a more immediate influence. In America ‘the people’ is a master whose exigencies demand obedience to the utmost limits of possibility.
Municipal independence is therefore a natural consequence of the principle of the sovereignty of the people in the United States: all the American republics recognize it more or less;
de Tocqueville noted the benefits of locally focused government in America:
In no country in the world do the citizens make such exertions for the common weal; and I am acquainted with no people which has established schools as numerous and as efficacious, places of public worship better suited to the wants of the inhabitants, or roads kept in better repair.
The “alliance” between the “sovereign states” was on behalf of their “common defense, the securities of their liberties, and their mutual and general welfare, binding themselves to assist each other against all force offered to, or attacks made upon them, or any of the them….”
The earlier version followed the path of traditional American constitutional structure, with its basic organization of government and its “natural rights” approach.
California has had two constitutions during statehood, one from 1849 and the other from 1879. Although only a generation separates them, their style, operative principles, and political consequences could hardly be more different. The Constitution of 1849 represented the classic American constitutionalism of the U.S. Constitution and of the Iowa and New York state constitutions that were its direct antecedents. The Constitution of 1879 bore the imprint of the wave of political populism sweeping the country during that decade. Together with subsequent amendments adopted during the Progressive Era, it became–and remains–an instrument of that time and contributes to the state’s radical politics.
The states of the United States were intended to be, essentially, laboratories within which “experiments” in government could be tried. The Tenth Amendment supports this view, stating that whatever political power was not delegated to the national government remained with the states and their people. Whether Home Rule or Dillon’s Rule or some combination of both will win out remains to be seen. In any case, the idea of a self-ruling people demands that the decision not be left to the politicians.
State courts play a vital role in our nation’s legal system. If you are ever a party to a lawsuit or are called as a trial witness, it will likely be in a state court. Without the fifty state court systems the federal court system would be overwhelmed. State courts are usually easy to locate and provide a great opportunity to introduce school children to the U.S. legal system.
The idea of a republican government was raised at the Constitutional Convention in the atmosphere of the just-ended War for Independence. The primary target of the signers of the Declaration has been the English king, who was designated a tyrant. This same target lies in the background in discussions of the governmental form.
A wave of state constitutional conventions during the middle of the 19th century reflected the increased “democratization” of American politics that resulted in the election of President Andrew Jackson and the emergence of two modern national programmatic parties, the Democrats and the Whigs. In established and newly-formed states, the growing movement for popular control over government led to reforms of judicial systems by having judges run for political office under partisan aegis and denomination. Today, eight states retain some form of partisan election for their appellate courts, and more do so for their general trial courts.
By the late nineteenth century, the tide turned again, with partisan politics becoming identified with political corruption, urban political “machines,” and party bosses controlling the process from “smoke-filled back rooms.” Over the next several decades, reformers, often working under the label of “Progressivism,” pushed broadly for nonpartisan elections, including for judicial offices. Most new states, as well as some established states, adopted this system in the several decades beginning in the 1880s. About one-third of the states still have nonpartisan elections for their appellate courts; still more do so for their general trial courts.
Under the Constitution, the only required court is the U.S. Supreme Court. The creation of lower federal courts has always been entirely at the discretion of Congress. Even if federal courts have jurisdiction, they can only hear cases specified in Article III, Section 2, of the Constitution. They are “limited jurisdiction” courts. However, the Constitution does anticipate the existence of state courts, which, in addition to their duties under state law, would perform the functions of federal jurisdiction if Congress chose not to establish lower federal courts. Even today, state courts can hear cases that involve federal jurisdiction, such as claims that arise under federal statutes or the U.S. Constitution, unless Congress has expressly made hearing that type of case exclusive in the federal courts.
The state and local courts generally address and rule on cases and controversies that involve law and the constitution of that state. However, in some instances, those state court rulings can be appealed and challenged in the federal courts. If the issue is whether a state law violates the Constitution, then federal courts may hear the dispute. In addition, in some instances, if the jurisdictional thresholds are met, then there might be dual jurisdiction.
The federal and state courts are separate entities with different jurisdictional limits and powers. While state issues might be litigated in federal courts if jurisdictional requirements are satisfied, United States Constitutional issues are ultimately the federal courts to decide. The Founders at the national and state levels expected the third branch, while co-equal to the other branches, to be the least powerful branch and interpreters only of laws.
To the Framers of the Constitution, democracy was a hideous form of government. The colorful Fisher Ames, in one of his more measured criticisms, wrote: “Democracy, in its best state, is but the politics of Bedlam; while kept chained, its thoughts are frantic, but when it breaks loose, it kills the keeper, fires the building, and perishes.” Monarchy was obviously unacceptable; a confederation had been tried and found wanting; this left a republic. But a republic which, according to Dr. Benjamin Franklin, must be “kept.” The Constitution’s Article 4 Section 4 contributes to the “keeping.”
While there are in theory strict limits on federal governing powers as laid out in the Tenth Amendment to our U.S. Constitution, in the real world of at least one state, Alaska, the federal government wields enormous power and control. To understand how this came to be, one must look at Alaska’s history.
The following year, Kansans adopted the Wyandotte Constitution, which was approved by Congress in 1860 as the South seceded. Congress finally admitted Kansas as a free state and banned slavery on January 29, 1861. It was the 34th state in the Union. This constitution opened with a preamble asserting the significance of civil and religious liberty: “We, the people of Kansas, grateful to Almighty God for our civil and religious privileges, in order to insure the full enjoyment of our rights as American citizens, do ordain and establish the Constitution of the State of Kansas.” The constitution remains the constitution of Kansas though it has been amended since ratification including the addition of women’s suffrage.
Such radically changed circumstances, which would lead to the world wars of the next century, presented American strategists with a set of problems noticeably different from those seen by Washington and his successors. Would the strengthening empires block American trade? Would they again threaten American shores, as they had not done since 1812?
Further, having fought a devastating civil war, we were less likely than ever to invite the prospect of another war on our own territory—especially given the increasingly devastating power of modern weapon wielded by the well-organized and trained mass armies raised by modern states.
We needed to re-think the question of strategic depth, a question we thought we’d answered by turning the middle part of North America into an empire of liberty. And we also needed to re-think our policies regarding international commerce. All without eradicating the constitutionally legitimate powers of the state governments.
America became what Jefferson wanted it to be: an “empire of liberty,” that is, a union of free and equal states, with republican regimes securing the natural rights of all its citizens in principle and of most if not all in practice.
What would become of the country? Could the regime of commercial republicanism sustain itself against populist and socialist ideologues who sought to exploit these pressures? Could federalism withstand pressures to ‘nationalize’ everything—that is, bring it under the rule of the central government to the diminution of the state governments?
To date, fifty states have been admitted to the United States, with the last one, Hawaii, having been admitted on August 21, 1959. However, in addition to the states, the United States has a number of major territories, including American Samoa, Guam, the Northern Mariana Islands, Puerto Rico, and the U.S. Virgin Islands.
In 1888, the Territorial Assembly petitioned Congress for statehood, but that effort was not successful. Despite not being approved for statehood in 1888, Wyoming Territory Governor Francis E. Warren and other territorial leadership decided to hold an election for delegates to a constitutional convention. On September 30, 1889, the Constitutional Convention was held and a state constitution was drafted that was submitted to voters. A short time later, on November 5,1889, the constitution was approved by an overwhelming majority of Wyoming voters, 6,272 to 1,923.
With a new constitution, the Wyoming Territory pushed for statehood again, and after President Benjamin Harrison signed Wyoming’s statehood bill, Wyoming became the 44th state on July 10,1890.
The initial set of amendments drafted by Representative James Madison were distilled from those submitted by the various state ratifying conventions, with the author declaring to Congress “I shall not propose a single alteration but is likely to meet the concurrence required by the constitution.” While most of those changes dealt with the powers of the general government or with limits to be imposed on that body, one group did not. Hamilton had also criticized the fact that the New York constitution, like that of some other states, lacked an explicit bill of rights. If anything, he noted, states needed bills of rights more than the federal government did, because they were governments of general and inherent legislative power, while the federal government was one of limited and delegated powers. For the former, then, any restriction on its powers had to be express.
Congressmen in the summer of 1789 were well aware that the constitution of nearly every state predated the new U.S. Constitution and that they had been working well. Almost all of them contained either Declarations of Rights or specific protections in the body of the constitution; some of these protections were more elaborate even than those which ended up in the U.S. Bill of Rights.[4]…
The relationship between Nevada and the federal government is as much a matter of the history of how Nevada became a state as it is the conditions under which it was granted statehood. Like many western states, states whose territories were carved out of the lands gained by the United States as a result of the Treaty of Guadalupe Hidalgo of 1848.
Until that point, states entering the union retained title to “unappropriated public lands” within their boundaries. But states entering the Union after 1848, by and large, ceded all title to these unappropriated public lands—i.e., lands that were neither privately owned, nor were they dedicated to some official public purpose—to the federal government as an incident of their becoming a state. As a result, these states, which were also much, much larger than their eastern counterparts, came into the Union with massive amounts of federal land within their midst.
Minnesota’s constitutional roots go all the way back to before the adoption of the U.S. Constitution.
As Minnesotans will tell you, the state is the source of the Mississippi river. The land east of the river was recognized as part of the United States in 1783, after the United States won the Revolutionary War. A few years later in 1787, Congress, acting under the Articles of Confederation, drafted the Northwest Ordinance. The Ordinance included a set of requirements for new states to be formed out of the Northwest Territory, the area which today includes Minnesota east of the Mississippi, as well as Ohio, Indiana, Illinois, Michigan, and Wisconsin. It required new states to guarantee many individual liberties, including freedom of religion, freedom of navigation on public waterways, and the prohibition of slavery.
On August 20, 1861, President Lincoln empowered this military-backed civilian entity to establishment the separate state of West Virginia from the pro-Union western counties that opted-out of the Secession Convention.
A “free” state convention met in Wheeling, November 26, 1861, and drafted the “Constitution of West Virginia.” It designated forty-four counties, “formerly part of the State of Virginia,” to be “included in and form part of the State of West Virginia.” The Counties of Pendleton, Hardy, Hampshire, Morgan, Frederick, Berkeley, or Jefferson were not named as part of the state.
The “Restored Government,” acting in accordance with Article IV, Section 3 of the U.S. Constitution, passed a resolution allowing the counties of northwest Virginia to split off and form their own state called West Virginia. Before West Virginia is admitted to the Union as a distinct state (in 1863) there were actually three separate governments operating within the confines of the state of Virginia: one part of the confederacy, one part of the Union and one hopeful of becoming a separate state. The “Restored Government” approved a new constitution in 1864. Since this constitution was enacted under wartime conditions and the “Restored Government” stood on rather shaky ground to begin with, the 1864 constitution is not recognized as part of the constitutional history of Virginia.
The Virginia Declaration of Rights contains a statement that “all [political] power is … derived from, the people; that magistrates are their trustees and servants, and at all times amenable to them.” When “the people” delegate their sovereign power to a government, is that a one-way trip, is the power forever surrendered? No, no, a thousand times no! Virginia’s Ratification Convention of the U.S. Constitution in 1788 made this crystal clear by writing: “WE the Delegates of the people of Virginia…, DO in the name and in behalf of the people of Virginia, declare and make known that the powers granted under the Constitution, being derived from the people of the United States may be resumed by them whensoever the same shall be perverted to their injury or oppression.”
How much political power did the “Restored Government of Virginia” actually enjoy?
The issue was finally settled in the fall of 1795 with Europe in flames due to the wars of the French Revolution. Thomas Pinckney of South Carolina negotiated Pinckney’s Treaty which won additional territory in Spanish Florida and more importantly secured the American right of free navigation of the Mississippi and New Orleans to trade.
When Spain ceded the Louisiana Territory to France in 1800, Americans were concerned about Napoleonic designs in North America. However, the continuing wars in Europe and the French failure to suppress a slave rebellion in Saint-Domingue (Haiti) led Napoleon to consider selling the territory to the United States. President Jefferson dispatched New Yorker Robert Livingston and Virginian James Monroe to negotiate the purchase of New Orleans as a critically-important port.
The “Idaho Admission Bill” reads: “Therefore, Be it enacted by the Senate and House of Representative of the United States of America, in Congress assembled, That the State of Idaho is hereby declared to be a State of the United States of America, and is hereby declared admitted into the Union on an equal footing with the original States in all respects whatever; and that the Constitution which the people of Idaho have formed for themselves be and the same is hereby, accepted, ratified and confirmed.”
In 1776, the world was ruled by royalty. Then some upstart colonialists penned the most revolutionary document in the history of man. The Declaration of Independence flipped the world upside down. The Divine Right of Kings became the consent of the governed. The individual was now “endowed by their Creator with certain unalienable Rights.” This was a world-shattering concept.
The people were now in charge. Our national heritage is a written constitution that sets the rules for governance between the people and their elected representatives. When Pilgrims landed at Plymouth, they almost immediately sat down and wrote a constitution called the Mayflower Compact. When our forefathers wanted independence, they felt a need to express their grievances and philosophy of government in a written Declaration of Independence. At the time of the Constitutional Convention, all thirteen states had written constitutions.
While the states which comprise the United States of America each have a unique story and history, the political and constitutional evolution of the great state of Texas is a compelling story in and of itself. I know, for you non-Texans your first response might be “there goes another one of those Texans who believes everything about Texas is bigger, brighter, bolder and more significant than everyplace else in the world”! Admittedly, true Texans are unabashedly proud. They hold an opinion which tends to advance the idea Texas is first in everything and the rest of the world can at best be “first runner up.” However, when one considers the fascinating history of Texas, the uniqueness of her size and the role she played in the growth and development of the United States, her role cannot be overlooked even by the most objective analysis.
After the adoption of the Constitution, the next significant use of this compact theory occurred in the Virginia and Kentucky Resolutions of 1798/9, authored by James Madison and Thomas Jefferson, respectively, and triggered by the Adams Administration’s Sedition Act. These resolutions held that Congress had only limited and delegated powers. If Congress legislated beyond those powers, it invaded the reserved powers of the states and threatened to consolidate power in itself. Division of powers existed to protect the people’s rights against tyranny.
A state government could, perhaps even must, then declare the unconstitutional nature of the Congressional action. Beyond that, matters got murky. The means of redress were left to each state. For Virginia, this included interposition of state authority between its citizens and Congressional usurpation of their rights. Whether this went beyond seeking political change by pressuring Congress to repeal the law or petitioning that body to call a constitutional convention under Article V of the Constitution, to actively using state executive authority to prevent enforcement of the federal law, was not discussed. Though it was implied, there was no clear assertion that the state’s action (by itself or in concurrence with others) outright nullified the offensive law. The more radical Jefferson, however, did allow that a state could nullify the offending federal law within its territory.
The constitutional case for vigorous state sovereignty to counter the dangers from a consolidated general government had been made frequently by the Constitution’s critics during the ratification debates. Their claim rested on the principle that the union was a compact of States. They pointed to the fact that the Constitution’s legitimacy rested on approval by the states; that the Constitution’s proponents frequently had asserted that the plan was not a revolutionary new system but an improvement of the extant one, as expressed in the Preamble’s objective to “form a more perfect Union;” and that failure to adopt the new plan would not mean the creation of 13 fully independent entities, but, rather, continuation of the earlier plan that had established a “perpetual union.”
The shift from approval by the state legislatures under the Articles of Confederation to approval by state conventions under the proposed document merely reflected a more refined understanding of republican theory that fundamental alterations must reflect as clearly as practicable the consent of the governed.
Today’s Wisconsin Constitution consists of a Preamble, thanking Almighty God for the freedoms that citizens of the state are blessed with, and then 14 Articles. The first article is a general declaration of rights as citizens of Wisconsin. This allows Wisconsin citizens to live under the same freedoms as the United States Bill of Rights, to prohibit prison sentences for debt, place military under the control of civil authorities, and guarantees our citizens the right to fish and hunt.
Meanwhile, the House of Representatives began to speak of Maine’s admission to statehood. The first day of deliberation upon Maine, Henry Clay left the Speaker’s chair in order to set the stage for debate. He wanted to assure the Northerners that they had much to lose with the debates over Maine if they continued to give the Southerners ultimatums regarding Missouri. If Maine could not be accepted as a state, then the Northerners would lose any opportunity of equaling the Southern representation in the Senate, and this could have long term consequences.
Admitted to the Union December 3, 1818, Illinois is the twenty-first state to ratify the U.S. Constitution. Known as “The Prairie State” as well as the “Land of Lincoln,” the Illinois State Constitution adopted in 1970 is the version currently used. The first state constitution, however, was adopted on August 26, 1818.
Congress required that each new state have a constitution. Delegates were selected and they met in Kaskaskia, Illinois, thirty-three men gathered at a tavern to draft a constitution. Borrowing heavily from the Kentucky constitution, where many delegates had come to Illinois from, as well as the constitutions of Ohio and Indiana (two states that were part of the Northwest Territory), a very small group drafted the constitution. Except for one issue, there are not records of much debate over this constitution to be submitted to Congress.
The study of state constitutions is perhaps the most important study that Americans can undertake, yet the most neglected. Understanding the constitution of the state within which one holds residence is important for two reasons. First, because understanding the laws closest to oneself equips one to become a citizen in the truest sense, one who participates in the city with his fellow citizens and engages in the community. And second because the state constitutions, in preserving the past while being layered by amendments of the present, reveal the history and development of the American regime.
Ohio’s state constitution is paradigmatic in the latter sense. The Buckeye State was the 17th state to join the Union, and it was accepted to statehood in 1803. The year in which Ohio was accepted to statehood is important insofar as it forms the essential character of the Ohio Constitution: joining a mere 27 years after the nation declared independence, and a mere 14 years after the Federal Constitution’s ratification, it preserves much of what was original to the Union itself. However, the Ohio Constitution, being ratified after the election of 1800, just after the first major shift in party control, gives Ohio an important place in the new notions of politics that developed during Jefferson’s term as president.
It’s now understandable why the Tennessee Historical Magazine of 1915 features a writing entitled, “The Development of the Tennessee Constitution” with the subtitle, “The North Carolina Constitution of 1776” with the first line to read: The constitutional history of Tennessee properly begins with the adoption by the revolutionary congress of North Carolina, in 1776… The appointed governor of Tennessee immediately following the acceptance of the cessation papers by the U.S. Government in 1790 was William Blount, who served from 1790 until official statehood in 1796 in what was deemed the “Southwest Territory.”
During this time a 4-week convention comprised of 55 delegates was held in Knoxville to establish the first constitution of a new state. Upon completion, the governing document was sent to Philadelphia, home to young America’s seat of governance, for review by the U.S. Congress and ultimately signed by President George Washington giving Tennessee immediate statehood on its day of birth, June 1, 1796. It would be later said by Thomas Jefferson of Tennessee’s Constitution, based on its North Carolina’s parent and Pennsylvania’s, to be “the least imperfect and most republican of the state constitutions” as it featured specifics on rights, taxes and legislative authority.
In 1775, just three weeks after the Revolutionary War Battles of Lexington and Concord, Ethan Allen led 83 Green Mountain Boys of Vermont on a courageous expedition to capture Fort Ticonderoga. In the early morning of MAY 10, 1775, Ethan Allen, accompanied by Colonel Benedict Arnold, made a surprise assault on Fort Ticonderoga. The bewildered British captain asked in whose name such a request was being made. Ethan Allen reportedly shouted: “In the Name of the Great Jehovah and the Continental Congress.” The British surrendered in what was one of America’s first victories of the Revolutionary War.
LISTEN ON SOUNDCLOUD: Ratified in 1781, the Articles of Confederation had significant problems. The Congress was unicameral, and the national government did not have an independent executive or judiciary. The states were sovereign, and the national government did not have the power to tax or regulate commerce. It was essentially just a league of friendship. […]
Aside from the federal Constitution, North Carolina has had three state constitutions since separation from Great Britain. One in 1776, one in 1868, and one in 1971.
Although different, the North Carolina constitutions have similar passages, and it is evident how elements of the 1776 constitution were incorporated into the 1868 constitution and how many parts of the 1868 constitution were incorporated into the 1971 constitution. Each version has a Declaration of Rights, albeit the number of declarations is different. All three, however, include a reminder that the study of history can affect current policy: “a frequent recurrence to fundamental principles is absolutely necessary to preserve the blessings of liberty.”
What the history of Rhode Island reminds us is that the states that formed the Union understood themselves to be acting on behalf of their citizens and the state government. It was thirteen individual states who formed the Union and not the people of those states. The Union did not transform the people into a single-collective, but rather the people were citizens of their states and the states acted on behalf of their citizens at the national forum. This may seem radical in light of how most people view themselves today, but at the time they would have thought our modern construction as radical and a severe departure from the Spirit of 1776 that rebelled against a distant, centralized governing body that limited self-rule. The Spirit of 1776 also saw the former colonies declaring themselves independent individually rather than as a collective.
The actions of the colonies preceded the collective Declaration of Independence. A righteous act of independence had begun with Rhode Island and the nation solidified only when it became the last of the original thirteen to join the union.
Like the 10th state, Virginia, while New York’s ratification was not required under the new Constitution for there to be a United States, had the vote gone the other way, the United States may have been for naught before they began. The Empire State showed its wealth of wisdom in ratifying the United States and becoming the 11th state in a fledgling nation. Had New York insisted on its voluminous amendments to the draft U.S. Constitution or that a Bill of Rights be passed with any ratification, and four votes had gone the other way, we might well have never moved to fifty states. Thankfully, we will never know.
But New York was extremely influential in the Bill of Rights being considered, including the powerful 10th Amendment, which provides: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” With the 9th Amendment, the intent was to limit the powers of the federal government.
Connected is called the “Constitution State”, largely because of the Fundamental Orders, which were written by the Connecticut Colony Council in 1639. Some have argued that this is the first constitution (a few historians say in the entire world) that empowers the citizens of a state to govern themselves. Where other American colonies in the 1600s and early 1700s were largely governed by representatives from Great Britain, citizens of Connecticut practiced a form of self-government. The Fundamental Orders also outlined individual rights that were given to all Connecticut citizens.
On June 29, the convention adopted a constitution guided by revolutionary principles. The different branches of government were separated and consisted of a bicameral General Assembly, an executive, and judiciary. The House of Delegates was the most representative of the people and were elected annually. The two houses of the legislature voted for the governor and curtailed the power of the executive who was elected annually and could not serve more than three terms consecutively. The principles of 1776 and great suspicion of executive power because of the experience under the king and his royal governors underpinned the weakening of executive power.
The Virginia Constitution was one of the first modern constitutions and represented the republican and revolutionary principles of 1776. The state constitutions created republican governments and helped shape the experiences and principles that led to the Constitutional Convention in 1787.
Before the Declaration of Independence was made, Virginia adopted its state Constitution on June 29, 1776, and its document would be of major impact when the new nation turned to creating a Constitution of its own.
Mason, who had a large role in the drafting of the Constitution in Philadelphia, and who was one of three delegates still in Philadelphia in September who did not sign the Constitution, was one of the main drafters of the 1776 Virginia Constitution. The other was Madison, who is considered by many to be the Father of the Constitution for his work in connection with the Annapolis Convention, the Bill of Rights and the Constitutional Convention. Madison would take his learnings from Virginia a decade later when he helped design the United States Constitution.
Under fire from the troops defending the fort, these New Hampshire patriots captured the fort and its garrison, took down the British colors, seized most of the gunpowder and departed. When the royal governor the next day regarrisoned the fort and ordered the return of the gunpowder, the insurgents went back to Fort William and Mary and took the remaining gunpowder, plus 16 cannons and all the muskets.
On January 5, 1776, the then provincial Congress of New Hampshire recognized that with the royal governor and British troops having been chased out of the state, the time had come to adopt a state constitution derived not from royal prerogative or British parliamentary grant, but rather from the free suffrage of the people. In doing so and by means of that very first constitution, New Hampshire became the first of the 13 original colonies to declare its independence from the Great Britain – six months before the Declaration of Independence was signed.
The eighth state to ratify the U.S. Constitution, South Carolina, was admitted to the United States May 23, 1788. It was also the first state to secede from the Union. The current South Carolina State Constitution was adopted in 1896.
Albemarle Point, located on the Ashley River, was established in 1670 as the first permanent English settlement in South Carolina. It was under the supervision of the eight lords proprietors who had been granted “Carolana” by King Charles II. Ten years later, settlers moved across the river to the present site of Charleston.
“At the time of the nation’s founding the states considered themselves to be sovereign entities that could compact together to address common needs, and it could reverse that decision if the common governing body no longer fulfilled its duty. Sovereignty was not relinquished. This is not only documented, but procedurally it is reinforced in that each state needed to ratify the primary governing documents before those documents took effect within that state’s legal jurisdiction. For instance, the U.S. Constitution was drafted by a committee in Philadelphia, it was then sent to the states to ratify individually. And while the Constitution only required nine of the thirteen states to be put into effect, only those states that had ratified it would be part of the Union. Those who had not ratified could not take part in the new government. This is a continuation of the political practice started with the Articles of Confederation in which the Second Continental Congress drafted and approved the Articles but then sent them to each state for independent ratification. The same is true of the Declaration of Independence—no state was forced against its will to fight the British once a majority of states accepted the Declaration; rather, it required unanimous consent from each state in Congress,” Dr. Kyle Scott in today’s essay.
It is August 27, 1776; the British have mounted their anticipated invasion of Long Island, New York. British General William Howe commits 20,000 of his best troops to the fight, including 8,000 Hessians, against approximately 6,000 ill-equipped and ill-experienced Americans (20,000 to 6,000; hardly seems a fair fight). Howe splits his forces across three fronts and executes a daring nighttime flanking maneuver that utterly surprises the American forces. The Americans are soon routed from their defensive lines and forced to retreat onto fortified Brooklyn Heights. To buy time for the withdrawal, Washington orders General William Stirling, commanding two units of the 1st Delaware Regiment as well as four companies from the 1st Maryland Regiment, to hold his line on the Gowanus Road. The 1st Maryland Regiment (part of the “Maryland Line”) is under the temporary command of Major Mordecai Gist (the unit’s commander, Colonel William Smallwood, is attending court martial duty in the city). The British attack up the Gowanus Road consists of 2,000 troops under the command of General James Grant. The Marylanders, soon reduced to less than 400 men (The Immortal 400)[1] are ordered to hold the line near Vechte-Cortelyou house, a stone building commanding the strategic road and a bridge, the only escape route across the Gowanus Salt Marsh. Not only do Gist’s men hold off the British, they make six amazing counterattacks before being finally forced to scatter and make their own escape back to American lines. Only a handful of the Maryland men are successful. Watching from Brooklyn Heights, General Washington turns to General Israel Putnam and states:
In the fall of 1779, John Adams was home in Massachusetts during a respite from his diplomatic responsibilities in Europe. While he was there, Adams drafted the state constitution that built on the constitutions and experiences of other states, using them as a model of success and failure. The resulting Massachusetts Constitution was a balanced constitution.
Royal authority had collapsed in Massachusetts in 1775, and the state was governed by a provincial congress under the 1691 colonial charter. The legislature had drafted a constitution in 1778, but the sovereign people of local townships had rejected it.
When James Oglethorpe claimed Georgia (named for King George III) in 1732, he then brought settlers to Savannah in 1733, who would have thought that less than 50 years later, there would be a war for independence from England. This was one of the challenges for Georgians. Many were not that far removed from life in England and many were not sure about this new initiative called the United States of America.
That didn’t stop Lyman Hall, Button Gwinnett and George Walton from signing the Declaration of Independence in 1776. These three men would find their names on three of the 159 counties in Georgia in the fastest growing part of Georgia some 240 years later.
Like Delaware, had New Jersey for some reason not ratified the Constitution, there would still have been a United States. Little did the four signers of the Constitution from New Jersey in 1787 foresee that their relatively small state would be the 11th most populous in present times. New Jersey’s delegates were instrumental in protecting the smaller states and although the Virginia Plan ultimately was the winner in the final Constitution, the New Jersey Plan protections were incorporated. The Garden State, along with Delaware and Georgia, were the only three of the thirteen colonies to vote unanimously at their state conventions for ratification of this new union, the United States of America.
We have in Pennsylvania a form of government founded on principles of individual liberty and self-determination. William Penn’s “Holy Experiment,” as Pennsylvania was called, provided its inhabitants certain inviolable rights through our Charter of Privileges–freedom of religion, liberty of consciousness, the election of our legislative representatives, and protections from abusive government intrusion. Of Pennsylvania, William Penn wrote that it would one day be the “seed of a nation.”
As the Constitutional Convention came to a close in Philadelphia, America’s founding representatives signed the United States Constitution on September 17, 1787. Then, the first of the thirteen original states to ratify and approve this document, this new U.S. Constitution, which replaced the Articles of Confederation, was Delaware, signing on December 7, 1787. This signing admitted Delaware, known as “The First State,” to the United States on December 7, 1787, subject to at least nine other colonies joining in agreeing to the U.S. Constitution. The current Delaware State Constitution in use, which is the fourth constitution in Delaware, was adopted in 1897, but its first was adopted on September 20, 1776. The first constitution referred to the state as “The Delaware State.”
State Constitutions? – Why would each state need a constitution when we have the United States Constitution? What would it mean for the states to be run by their citizens rather than royal rule?
In many cases, these first state constitutions take the opportunity to explain principles of government which the Framers of 1787 apparently thought were so “self-evident” as to not require mentioning. For example, the Virginia Declaration makes the following statements (here paraphrased) not found in the U.S. Constitution:
• That all men are by nature equally free and independent, and have inherent rights that they cannot, by any compact, deprive or divest their posterity.
• That all power is vested in, and consequently derived from, the people.
• That magistrates should be at all times amenable to the people.
• That elected officials should be returned to the body of the people to feel, once again, their burdens.
• That government is instituted for the common benefit, protection, and security of the people, nation or community.
• That a majority of the community has a right to reform, alter or abolish their government.
• That no individual or group is entitled to exclusive or separate benefits or privileges from the community.
• That citizens should evidence a permanent common interest in, and attachment to, their community before being allowed to vote.[1]
As a result, governance from England was exercised through the king and his colonial governors. If the states were governed by their citizens they would be able to choose their own type of institutional structure and likely (as they did) directly participate in choosing many of the public officials. The government would in a real sense be closer to the people. Local conditions would be better known, as opposed to attempts to make policy from the mother country.
Concerning civil government, they set forth a covenantal, republican view that civil government must, under God, be based upon the consent of the governed. Concerning man, the rulers and the ruled, they affirmed that he is created with certain unalienable God-given rights, but rejected notions that man is either “neutral” or naturally good. They affirmed the unpleasant reality of Original Sin and designed their governments to protect liberty and justice against it. Because they knew the fallen nature of man, they designed limited republics with written constitutions and bills of rights. Those republics had both democratic and aristocratic features, designed to protect the majority and the minority against injustices. They were not egalitarian, and sought to protect property by means of graded property qualifications for government offices. To protect and promote godly laws and liberty, they had Christian qualifications for public office; in respect for Christians who believe that God forbids men to swear an “oath,” they let them make an “affirmation” instead. To promote the benefits of education in all mental, practical, and geographical areas of a state, they encouraged the towns, precincts, and voluntary associations to promote Christian instruction.
Because they knew the fallen nature of man, they created systems of separation of powers with accompanying checks and balances among institutions to protect liberty and justice. For the same reason, they stated the right of the people to resist tyranny.
When John Jay, in Federalist No. 2, said he had often noted with pleasure that “Providence has been pleased to give this one connected country to one united people—a people descended from the same ancestors, speaking the same language, professing the same religion, attached to the same principles of government, very similar in their manners and customs, and who, by their joint counsels, arms, and efforts, fighting side by side throughout a long and bloody war, have nobly established general liberty and independence,” he was half right. He recognized that the peoples of the states that declared their independence in 1776 were overwhelmingly Christians and Protestants. Yet he was certainly wrong about them being “one united people,” and about them having a purpose to establish “general liberty and independence,” for as the colonies’ Declaration makes clear, they fought to make each colony, under God, a free and independent state.
Throughout the “establishment period” (until 1833) the states allowed dissenting churches even though they mandated official churches supported by tax money. It was not until 1947 in the Everson v. Board of Education, that the Supreme Court began to apply the Establishment Clause to the states. At that point any established churches would be unconstitutional in the states. Nevertheless, freedom of religion—toleration in effect—was already the custom of the states, and all had by then abolished established churches.
The new constitution of 1778 omitted a provision for paying ministers from parish funds: making support of “religion” voluntary and equal before the law. To promote religious liberty, the constitution extended corporate status to all Protestant religious societies that would affirm the fundamental Christian doctrines stated in the South Carolina Constitution.
No legislature has a right to interfere with the judgment and conscience of men, in religious matters, if their opinions and practices do not injure the state….The State may give countenance to religion, by defending and protecting all denominations of Christians, who are inoffensive and useful. The State may enact good laws for the punishment of vice, and the encouragement of virtue. The State may do anything for the support of religion, without partiality to particular societies, or imposition upon the rights of private judgment.
“Disestablishment” and “religious freedom” in North Carolina, New York, Connecticut, Massachusetts, and New Hampshire were motivated by different intentions than we have long been taught.
North Carolina had an Anglican establishment before independence and a non-Anglican majority that disliked the Anglican Church. Dissenters were excluded from all offices of power and dignity and had to pay tithes to the Anglican Church. Independence and the new constitution of 1776 changed this by precluding the existence of any established church and establishing a Protestant civil government. Article XXXII declared:
That no person, who shall deny the being of God or the truth of the Protestant religion, or the divine authority either of the Old or New Testaments, or who shall hold religious principles incompatible with the freedom and safety of the State, shall be capable of holding any office or place of trust or profit in the civil department within this State.
“Disestablishment” in Virginia was only removal of all legal preference for the Episcopal Church. It was not fully achieved until 1840—54 years after Jefferson’s bill. It was accomplished—overwhelmingly—by the efforts of Christians, particularly of the former “dissenting sects.” It obviously was not intended to create, and did not produce “neutrality” among all religions, secularism, or de-Christianization. It therefore is not, and cannot be either a precedent or evidence for “neutrality” among all religions, secularism, or de-Christianization of American law.
Jefferson and the legislature then made the law and the principle of religious liberty a fundamental right that could never be revoked by a future legislature, binding future generations to the rights of man. “If any act shall be hereafter passed to repeal the present or to narrow its operation, such act will be an infringement of natural right.”
Most states pursued religious liberty as a fundamental right and disestablished their churches, though not all did, because of principle of federalism in the U.S. Constitution. In the 1830s, Massachusetts became the last state to disestablish. But, the American Revolution and founding advanced both civil and religious liberty for the American people.
Let the unabashedly left-wing Justice William Douglas have the last word. He wrote in 1952 in Zorach v. Clausen, “The First Amendment, however, does not say that in every and all respects there shall be a separation of Church and State…. Otherwise the state and religion would be aliens to each other—hostile, suspicious, and even unfriendly…. We are a religious people whose institutions presuppose a Supreme Being…. When the State encourages religious instruction…, it follows the best of our traditions. For it then respects the religious nature of our people and accommodates the public service to their needs. To hold that it may not would be to find in the Constitution a requirement that the government show a callous indifference to religious groups. That would be preferring those who believe in no religion over those who do believe.”
As the Pilgrims’ “Mayflower Compact” of November 11, 1620, stated, “Having undertaken for the glory of God, and advancement of the christian [sic] faith, and the honour of our King and country, voyage to plant the first colony in the northern parts of Virginia; [we] …combine ourselves…into a civil body politick, for furtherance of the ends aforesaid ….” Puritan colonies in New England similarly strived for their goal to “lead the New Testament life, yet make a living,” as the historian Samuel Eliot Morison summarized it. The “Fundamental Orders” of the Connecticut River towns in 1639, a basic written constitution, set as their purpose to “enter into…confederation together, to maintain and preserve the liberty and purity of the gospel of our Lord Jesus which we now profess, as also the discipline of the Churches, which according to the truth of the said gospel is now practiced among us ….”
In thinking about what the Declaration of Independence meant for state powers, perhaps the better question is what powers didn’t the states have upon their independence? Consider the very first line and note what is emphasized: “The unanimous Declaration of the thirteen united States of America.” This is telling. Why use “unanimous” if all the states were considered one entity?
When government under the Articles proved defective, many in the states sought to create a stronger central government; many others feared that the new central government would be too strong. The new governmental system that the colonies established under the Constitution was meant to retain the great majority of governmental power in the respective states, not to centralize power in the new, limited national government, nor to enable future officials in that government to centralize power. Those who advocated ratifying the finished Constitution insisted that the new central government did not and would not be a threat to the powers of the states.
In declaring their independence from the British Empire, “the Representatives of the united States of America” acted “in the Name, and by Authority of the good People of these Colonies.” The “United Colonies are, and of Right ought to be, Free and Independent States.” Plural, not singular. But also united: as one of Mr. Shakespeare’s characters says, there’s the rub. The American States are free and independent respecting Great Britain. But are they free and independent respecting one another? And if so, to what extent? “As Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and do all other Acts and Things which Independent States may of right do,” but may they do these things severally, without regard to each other, or only as a united body? What is the character of the American Union?
In 1763, with “the scratch of a pen,” North America had changed forever. After years of looming as an ever-present danger, the French threat had finally been removed from Canada and the lands east of the Mississippi. The territory had been hard won as a result of the 1763 Treaty of Paris that formally ended the French and Indian War waged on the British colonies’ western frontier since 1754. “That Enemy who hath so long stuck like a Thorn in the Sides of our Colonies is removed,” wrote Massachusetts governor Francis Bernard; now “North-America” was “[e]ntirely British.” Native American unrest followed. That same year, the newly crowned King George III, fearful of further rebellion and citing it as “essential to our Interest,” stopped western expansion with a theoretical line on a map that ran through the Appalachian Mountains (which run from modern day Canada to Alabama). The Proclamation of 1763, as it was known, barred Americans from collecting their promised spoils of war, and unknowingly became one of the American Revolution’s earliest causes.
Madison assures his readers that the form of the “general” or federal government remains “strictly republican.” “No other form would be reconcilable with the genius of the people of America; with the fundamental principles of the Revolution; or with that honorable determination which animates every votary of freedom to rest all our political experiments on the capacity of mankind for self-government.” Such a government will derive “all its powers directly or indirectly from the great body of the people” and not “from an inconsiderable proportion or a favored class of it.” Self-governing citizens must never be reduced to spectators, gazing at the actions of ‘statesmen’ far above and beyond their control.
In all this, as Madison writes in the forty-ninth Federalist, the Framers have structured the new federal government and the American system of governments overall in such a way as to secure natural rights while minimizing the infirmities and depravities of the human nature all persons share. Not the passions but the reason of the American public should “sit in judgment” of the government: “It is the reason, alone, of the public, that ought to control and regulate the government. The passions ought to be controlled and regulated by the government.” “As there is a degree of depravity in mankind which requires a certain degree of circumspection and distrust, so there are other qualities in human nature which justify a certain portion of esteem and confidence. Republican government presupposes the existence of these qualities in a higher degree than any other form,” and so does federalism, rightly understood. If such were not the case, “the inference would be that there is not sufficient virtue among men for self-government; and that nothing less than the chains of despotism can restrain them from destroying and devouring one another.”
The structure of checks and balances among the branches of government and the split sovereignty of the Constitution’s version of federalism were, as Madison and other supporters had insisted, the bulwark to constrain the general government and to protect the people’s rights against arbitrary power.
From a constitutional perspective, the Tenth Amendment is a shadow of what it represented at the time of the ratification debates. If Congress acts directly on individuals under the broad reach of the commerce power, the Tenth Amendment is no real barrier. Only if Congress, instead of legislating directly, seeks to “commandeer” the states into adopting federal policies or administering federal laws is there a violation of the states’ residual sovereignty.
There is a beauty in our structure of governance—a structure as carefully engineered as a Greek temple or medieval cathedral, and likewise meant to stand for centuries. In our federalist system, the branches and levels of our government are separate yet intertwined, both opposing and relying on one another to create a system that is both strong and delicate.
But like those engineered structures of old, whose beauty and durability can be compromised by misunderstanding and neglect, the same holds true for the support beams undergirding our republic. A failure to appreciate their role, a misguided effort to subvert their role, and the whole structure, the whole republic collapses. Most importantly, undo the various institutions of federalism (either through affirmative effort or neglect), and the republic decays and ultimately dies.
In the constitutional scheme, federalism provides an avenue for local self-determination, in addition to a vertical check on government oppression, with the states serving as a localized control on the centralized national government.
Under the framers’ view of federalism, as expressed in the Tenth Amendment, the national government would exert supreme authority only within the limited scope of its enumerated powers; the states meanwhile would exercise the remainder of sovereign authority, subject to the restraint of interstate competition from other states.
With the goal of preserving freedom by preventing the consolidation of control in any one political structure, the Founders came together to draft the U.S. Constitution. Mindful and somewhat humbled by the failure of the Articles of Confederation, they understood that a central authority was necessary to provide for the common defense and general welfare – and most important of all – to protect the liberty for which they had fought so hard. However, they also recognized that giving the federal government unchecked power would likely lead to a tyranny not so very different than the one they had just overthrown.
As Alexander Hamilton explained in Federalist no. 17, “It is a known fact in human nature that its affections are commonly weak in proportion to the distance or diffusiveness of the object. Upon the same principle that a man is more attached to his family than to his neighborhood, to his neighborhood than to the community at large, the people of each State are apt to feel a stronger bias towards their local governments than towards the government of the Union.”
Their solution was an ingenious design that gave the federal government the authority that it needed to unite the nation while devising a system of internal and external checks to diffuse power so that the national government would ultimately be subject to the will of the states and the people.
Constituting America’s Ninth 90 Day Study on State and Local Government Preface: The Tenth Amendment to the United States Constitution reads, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” The amendment’s purpose is intended to […]
If the writers contributing to this year’s 90-Day Study have identified a main theme for their essays, it is the difference between the way Congressional representatives understood their Constitutional duties in the first century-and-a-quarter of our Union and the ways Congressmen have come to act since Progressivism came to dominate American opinion.
From a lawmaking institution whose members consulted the Constitution and, behind it, the natural rights enunciated in the Declaration of Independence, Congress has become a constituent-service institution which attempts to oversee and negotiate with the bureaucratic apparatus of a massive national state. To be sure, it still debates and enacts laws, but very often leaves the details of those laws to the administrative agencies which enforce them, agencies which collectively amount to a fourth branch of government, and an unelected one at that. Given the re-conception of the Constitution as a ‘living’ or ‘elastic’ document, those laws may have only a remote connection to the plain meaning of the (formerly) supreme law of the land.
Fake news? Real news? Newswriting has no end. What matters most among abundant sources of information, however, is an ability to maintain freedom of speech including that of the press. Certainly, without integrity in journalism news is not news and only amounts to opinion. Yet, above that, the United States Constitution includes the law that Congress is not allowed to abridge (prevent, suppress, gag) the press. To do so invites tyranny.
This changed in January 1995, when the Library of Congress made digital copies of the Congressional Record available on its website. Continuous improvements now allow for user friendly search of the Record and all legislation, by anyone on the web, anytime, anywhere.
They designed and implemented the most dramatic technology revolution in Congressional history. This giant leap took House communications from the 18th Century into the 21st in one giant leap.
Some get caught up in illegal activity. Others are honest in their attempts to represent client concerns. Who are they? Lobbyists. Political lobbying has existed as long as voters and elected leaders have.
To “lobby” has been termed from various sources as one who comes to visit, to connect with others. Politically, to lobby is to seek the ear of an elected official to influence votes on legislation. This description makes any constituent who writes, visits, or calls his or her congressman, a “lobbyist.” What is it, then, that makes people cringe at the word, lobbyist?
This is surely one reason why, throughout the twentieth century, the nation witnessed a steady increase in reelection rates to Congress, the rise of career members of Congress, and a decrease in voters’ sense that the government reflects their wishes.
The progressive administrative state has its historical roots in the New Deal agenda of the 1930s. Progressives believed that only an unrestrained federal executive branch could remedy all the effects of the Great Depression, as well as engineer society so that such a calamity would never again occur. The progressive mindset saw limited government, the private-sector economy, and the complex web of social and cultural institutions that characterized America since its colonial beginnings as means of oppression. To progressives, individual liberty gave way to the power of big government to engineer society for individuals who do not have the expertise to adequately govern themselves.
Progressivism is…“a total rejection in theory, and a partial rejection in practice, of the principles and policies on which America had been founded and on the basis of which the Civil War had been fought and won only a few years earlier.”
The best means or state action was the most efficient and the most efficient was a bureaucratic and centralized government that could then bypass the inefficiencies of the separation of powers and a deliberative Congress.
So while one may place some blame on the Court, an equal blame falls on Congress itself. It has delegated power to non-elected and unaccountable agencies while at the same time passing incredibly lengthy and complex legislation, thus justifying (it argues) such delegation.
Americans are deeply polarized in this country but often incorrectly attribute it to growing partisanship and the strength of political parties. In fact, the opposite is true. Some scholars have argued that the growing polarization in Congress and in politics more generally is a symptom of a declining two-party system and identification of Americans with one of the two major parties.
The word “filibuster” is a variation of the Spanish word for pirate, which is indicative of the parliamentary move that stops a vote from occurring. But even though the rule change occurred in 1806, no senator threatened a filibuster until 1837, and it not used until 1841.
Every fourth of July American citizens recognize the signing of the Declaration of Independence and the revolution that gave birth to our country, but very few remember the revolution that occurred in Congress about one hundred years after the revolutionary war. That revolution has had profound effects on how Congress works today.
Obviously, civility should be our standard. We can engage in robust debate. But threats and violence have no place in a constitutional republic.
A more subtle version of hyper partisanship is now in vogue. Calling upon supporters to “confront” political opponents wherever they may be, is clearly an attempt to put them in fear for their safety — without actually crossing the red line of doing them physical harm. But it is nonetheless an attempt to threaten the opposition and bully them into submission. This cannot be tolerated in a free society.
The truth is politics is a surrogate for violence and war. In a less civilized society, those who can enforce their will upon the rest of the populace become the rulers. In establishing a constitutional republic, the Founders were attempting to set aside that age old “rule by force” model of government. Instead, they created a system where the voice of the people ruled — without enforcing their will through threats and violence.
To be sure, we should always expect some gridlock inside political processes, as was recognized at the time of the American Constitutional founding. Our present political system, however, seems to have created a significant cleavage between those who would like to be left alone by the federal government to pursue their peaceful dreams and projects and those who seek to receive support at someone else’s expense.
Yet we must recognize that governments can’t create wealth. All they can do is take and redistribute wealth that other people have created. This property of government was recognized at the time of our Constitutional founding, and we need to recapture that founding wisdom. This does not entail streamlining government to reduce gridlock, but rather requires restoring our Constitutional system of free enterprise and limited government.
Upwards of 5,000 bills get filed in a legislative session of Congress, and around 500 may pass. And for good reason. The process weeds out. Unfortunately, though, bills do languish in committee without further consideration that are actually better ideas for the country than others that make it through the process.
This is why lawmakers, which is what Members of Congress are, need to understand the United States Constitution to consider whether bills they are filing are constitutional before filing. It is important that they learn America’s history and founding, and how America’s founding documents such as the Declaration of Independence, Constitution, and Bill of Rights, make America succeed as exceptional. It is important that lawmakers understand that America’s Constitution is the law of the land, and that the Preamble to the Constitution is only an introduction, not a precedent of law in which they may cite a constitutional purpose for filing a certain bill. Learning America’s history and founding matters so that lawmakers understand checks and balances, the balance of power that prevents the resting of too much power in one part of government. America’s elected leaders too often forget this. It is our duty, as “We The People,” to be educated ourselves, and remind them.
In 1776, Thomas Jefferson complained in his famous declaration that King George III had “refused his Assent to Laws, the most wholesome and necessary for the public good.” Laws duly passed by the colonial legislatures and sent to the King often never received his signature and thus were never put into effect. Some of these bills were no doubt “wholesome and necessary.” The Framers of 1787 sought to solve this problem. They set out to ensure the “people’s voice,” as reflected in the actions of their representatives, would never be muted.
The slow and often tiresome processes of Congress come from a long history that America’s Founders seriously considered when designing a new system of government for the new country, and its Constitution as they realized firsthand how difficult it was to escape unchecked power. A weary, exasperated John Adams wrote in a letter to his wife Abigail in 1777 during the American Revolutionary War that highlights the importance of weighing decisions with careful deliberation, resolve and eyes on the future:
“Posterity! You will never know, how much it cost the present Generation, to preserve your Freedom! I hope you will make a good Use of it. If you do not, I shall repent in Heaven, that I ever took half the Pains to preserve it.”
The committee process in Congress can play a significant role in revealing true intentions of legislation so that voters, including United States House of Representatives and Senate Members, know just what each bill is about exactly, and receive opportunities especially to work out any unintended consequences before a bill gets to the House or Senate Floor for a vote.
Various committees exist in both the House and Senate on issues from Agriculture, to Homeland Security, to Small Business to Ways and Means, and more. Some committees are standing or permanent, and others are temporary such as conferences committees designed to work out differences between bill versions in the House and Senate. All can make a difference in maintaining accountability, efficiency, transparency, and integrity in America’s representative government.
Congressional hearings, the embodiment of representative government, are deteriorating. This undermines the carefully crafted balancing of powers in the U.S. Constitution.
Representative government means its elected officials must do their duty. Even “boring” management oversight is important, especially to taxpayers concerned about how their hard-earned money is spent.
Committees provide Congress with a double-edged sword. They help Congress do its job, but they also threaten to subvert the legislative process, dividing Congress into many subunits, each of which advance a narrow, special interest rather than the common good. If they are not held accountable to the whole Congress, through rules that allow party leaders to influence committees and allow members to amend legislation after it leaves committees, they can threaten the very purpose of Congress: to make laws that reflect the sense of the majority rather than the interests of the powerful.
Intriguing is the story of America’s history and ideas at the core of its start. Involved in an interesting mix of proposals on how to meet needs for order, balance of power, and representative government, it began by making sure America on every level would be equipped to develop as free people and remain so, and run without getting in its own way.
“…one must understand something of the spirit of the people who had been experimenting successfully with liberty for over 165 years when the Constitution was framed.”
It is clear that Americans were educated in the ideas of liberty for several generations. As late as 1830, Frenchman Alexis de Tocqueville observed among the general population of America the same high degree of education and understanding of basic principles. “It cannot be doubted that in the United States the instruction of the people powerfully contributes to the support of the democratic republic….” Even in outlying areas, he said, the American “will inform you what his rights are and by what means he exercises them….”
How do we force easy-to-understand laws that lawmakers and law-abiding citizens can comprehend? By insisting Congress pass smaller, single issue bills. In the real world, point solutions are popular because they are doable … and results can be measured. If something needs fixing, focus legislation on the broken part, and leave the rest alone until the new law’s effectiveness can be assessed. If there are multiple broken parts, Congress should avoid a comprehensive redesign that allows everyone to get their fingers into the cookie jar.
Why is Congressional legislation since the 1980s so lengthy and complex? Can this and should it be addressed as a problem or is it simply the product of our modern economic and political world? Those are the questions to be addressed in this essay. They are not however idle questions. It does make a difference when modern legislation is so long and sometimes extremely complex and vague, to the citizen who wishes to comply with it but cannot understand it, or to the courts who must interpret it. Not only that, but when legislation becomes so intricate, this gives the administrative agencies charged with implementing it through regulations and adjudication much more discretion and power than a constitutional system would envision.
“be in all cases the most rational or not, is really not of so great importance. It is much more material that there should be a rule to go by than what that rule is; that there may be a uniformity of proceeding in business, not subject to the caprice of the Speaker or captiousness of the members. It is very material that order, decency, and regularity be preserved in a dignified public body.” –Thomas Jefferson, Manual of Parliamentary Practice
By the end of the 19th Century Congress had only 146 staff members: 37 Senate personal staff, 39 Senate committee staff, and 62 House committee staff (37 of whom only worked during congressional sessions). In 1893, the House approved the first personal staff for its Members.
The Populist and Progressive movements ignited government regulation of America’s burgeoning economy. New federal agencies meant dramatic increases in spending and the need for vigorous Congressional oversight of Executive Branch activities.
Except for limiting government during the Administration of President Calvin Coolidge, the role, scope, and size of the federal activities grew rapidly and never stopped. Congress introduced, considered, and passed more and more laws facilitating this expansion. By the early 1970s over 26,000 legislative bills and resolutions were being introduced during each two-year Congress.
The various roles established throughout the course of American history are proving effective though some want to rid America’s Congress of its Members almost immediately after an election. However, made up of imperfect people who would fail at times yet try again, America’s Founders and Constitution Framers showed up for known, imminent challenges, and against just about impossible odds to succeed. They did so believing something better could exist and pursued a new type of governing that if maintained by the electorate would offer the most freedom for those it represented.
Leadership roles in the United States House of Representatives and Senate help advance the purpose of Congress and why each member was elected – to serve. Various positions bring in members who offer each Congress that convenes unique experience and abilities.
Development of leadership roles that would carry into the new, settled governing system was in the making in the years surrounding the first, second, and third Continental Congresses and into the first United States Congress.
Our founders had great faith in the rationality of American leaders—but they also recognized that men were fallible. As James Madison wrote in Federalist #51:
“If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.”
In the early republic, the founding generation took the treaty-making provisions of the Constitution seriously even as they sought to define the parameters of those constitutional powers. As the first president, George Washington, in particular, tried to set the right constitutional precedents and observe the proper balance of powers with relation to the legislative branch. Although the battles over the treaty-making authority could be highly contentious, the fights took place within a constitutional framework and helped establish the principles of American foreign policy.
“[T]he Constitution protects us from our own best intentions: It divides power among sovereigns and among branches of government precisely so that we may resist the temptation to concentrate power in one location as an expedient solution to the crisis of the day.”
And the founders were incredibly suspicious of the power to wage war being abused by a centralized government. They had seen firsthand the arbitrary and cavalier ways in which monarchs, and not just the British monarchy, were using war, and had used war throughout the world’s history, as a way of building empire, and glory, and power.
This is NOT what they wanted these United States to be—and so they made it difficult for the nation to wage war.
The Framers interminably debated every little detail of the Constitution. Did they end up getting it right? The Civil War indicates they may have.
One of the most important tasks Congress must complete is to set a budget. It is especially important for members of Congress to understand how the budget works in order to best represent and serve the American people. For this reason, our United States Constitution framers recognized the need for a system that could remain within the knowledge and control of the people who would entrust power to their elected representatives concerning the nation’s finances.
The framers did not want to repeat what they observed in England where the king was able to direct funds rather than the citizenry directing funds. The framers instead put together a different form of government that left control or “power of the purse” in the hands of the people. This is how Congress, the legislative branch, was placed in charge of taxing and spending, a system by which voters could have a say in the direction of funds and hold their representatives accountable.
It is commonplace to assert that Congress exercises oversight over federal bureaus and executive agencies. But is this a reasonable assertion? Or might it represent a romantic yearning for an earlier and simpler age, or even for an age that never existed?
..the Constitution was created as a document that turned the nature of government on its head. Power, narrowly and carefully ceded, flowed from the people to their government.
The founders were explicit about this because they knew that over time, people would come to forget the tyrannies Americans had faced at the beginning of our nation’s history (and before).
Defined as a system of dual sovereignty, federalism envisions a constitutional order in which national and state governments each possess their own sphere of autonomy and authority.
Whereas the concept of separation of powers operates on a horizontal level, ensuring the autonomy of the different branches (legislative, executive and judicial) within any one level of government (state or national), federalism operates vertically, ensuring the autonomy of those different levels. Both federalism and separation of powers act as a coordinated system of checks and balances. Separation of powers checks the various branches, while federalism checks the different levels of government. Under federalism, autonomous states with their own sphere of power can help prevent a national government from abusing its power.
The democratic republic that resulted was to be a means to an end even greater than itself. Although the framers of the Constitution imagined different ways to achieve their goal, they refused to compromise their commitment to secure the blessings of liberty.
“The House of Representatives is so constituted as to support in the members an habitual recollection of their dependence on the people. Before the sentiments impressed on their minds by the mode of their elevation can be effaced by the exercise of power, they will be compelled to anticipate the moment when their power is to cease, when their exercise of it is to be reviewed, and when they must descend to the level from which they were raised; there forever to remain unless a faithful discharge of their trust shall have established their title to a renewal of it.” Federalist No. 57
The Senate, having six year terms for its members, would be a defense against, “particular moments in public affairs when the people, stimulated by some irregular passion, or some illicit advantage, or misled by the artful misrepresentations of interested men, may call for measures which they themselves will afterwards be the most ready to lament and condemn.” Federalist No 63
Being a congressperson or senator is like having three jobs that consume every waking moment. The two chambers also make different demands on families…
Dealing with reality versus perception presented another challenge. Issues and people in the media are distorted for political purposes. Politicians understand that the opposition will build misperceptions about who they are, what they’re doing, and why they’re doing it. It comes with the territory. But spouses, children, and other relatives must live daily with slanted attacks on one of their beloved family members.
Over the last 111 years, Congress has sought to regulate how its own elections are financed. Like most regulations, campaign finance laws have become increasingly more intensive and complex, though the U.S. Supreme Court has occasionally stepped in when Congress has overstepped either the powers granted to it in Article I of the Constitution, or the First Amendment rights of candidates, citizens, or associations of citizens.
The “election method” of Congress has many facets: who is entitled to vote, how they vote, even such mundane things as how votes are counted (does a hanging chad count?). As Madison reminds us: “the essence of government is power and power, lodged as it must be in human hands, will ever be liable to abuse.”
James Madison observed in Federalist 52, “[I]t is particularly essential that the [House of Representatives] should have an … intimate sympathy with, the people.” At the same time, he wrote four essays later, “The truth is, that in all cases, a certain number at least seems to be necessary to secure the benefits of free consultation and discussion; and to guard against too easy a combination for improper purposes: as on the other hand, the number ought at most to be kept within a certain limit, in order to avoid the confusion and intemperance of a multitude….Had every Athenian citizen been a Socrates, every Athenian assembly would still have been a mob.”
“[W]here there is no law, there is no liberty; and nothing deserves the name of law but that which is certain and universal in its operation upon all the members of the community,” wrote Founder Benjamin Rush in a 1788 letter to David Ramsay. (Emphasis added) Do our laws apply to all?
Interpreting Benjamin Rush, do these laws deserve the name of law if they only apply to “ordinary Americans” and not the elite of Congress?
The Rule of Law should be the bedrock of our society; but this “bedrock” has the appearance today of shifting sand.
“If it be asked, What is the most sacred duty and the greatest source of our security in a Republic? The answer would be, an inviolable respect for the Constitution and Laws — the first growing out of the last.” – Alexander Hamilton
“Bad laws are the worst sort of tyranny,” said Englishman Edmund Burke. The Roman historian Tacitus expressed a similar sentiment: “Formerly we suffered from crimes. Now we suffer from laws.” “[I]f the public are bound to yield obedience to laws to which they cannot give their approbation, they are slaves to those who make such laws and enforce them,” complained “Candidus” in the Boston Gazette on January 20, 1772. Finally, a civil law which contravenes natural law is either “spoilt law” (Thomas Aquinas) or of “no validity” (Blackstone).
A tendency is not inevitability, however, and rule of law and separation of powers are important facets of a constitution of liberty, though these must be fought for continually because they don’t arise naturally, and they won’t remain in place tomorrow just because they are here today. Liberty is a perpetual struggle against forces of social and political entropy.
“The most important demand of the Rule of Law is that people in positions of authority should exercise their power within a constraining framework of well-established public norms rather than in an arbitrary, ad hoc, or purely discretionary manner on the basis of their own preferences or ideology. It insists that the government should operate within a framework of law in everything it does, and that it should be accountable through law when there is a suggestion of unauthorized action by those in power.”
The essential idea is that no ruler or governing body is above the law, even those who actually make those laws.
The phrase, “the rule of law,” means that the power and discretion of those who exercise government powers is constrained. Officials may not do whatever they want. They must instead act according to rules, rights, customs, and other laws. This is the significance of John Adams’s classic formulation, which he enshrined in the Massachusetts Constitution, that the goal of the Constitution was to produce a “government of laws, and not of men.”
“My faith in the Constitution is whole, it is complete, it is total. I am not going to sit here and be an idle spectator to the diminution, the subversion, the destruction of the Constitution. It is reason and not passion which must guide our deliberations, guide our debate, and guide our decision.” – Congresswoman Barbara Jordan (D-TX) speaking during the House Judiciary Committee impeachment hearings on President Richard Nixon, July 25, 1974.
The Framers knew the country needed a stouter government than the Articles of Confederation provided, but they had only recently fought a war to escape a king and had no intention of reimposing that kind of oppressive power on the new nation. The country needed a stronger government, but not so strong it could override the will of the people.
James Madison wrote, “Ambition must be made to counteract ambition.” He and his fellow delegates enabled this objective by enumerating specific, balanced powers to each branch, and then purposely giving each branch checks on the other branches. First balance powers between the branches of government, and then place checks on those powers so they may not be abused. As the first three words of the Constitution assert, the Framers felt the American people should rule the government, not vice versa.
If Congress concerned itself only with matters necessarily national or international in scope, this view need not raise concerns. But as Congress busies itself with more and greater intrusions into personal decisions, such as health insurance, one might ponder if the same alienation felt by Americans of the 1770s towards the far-away British government is not felt 250 years later by Americans towards their own. Do such laws still meaningfully reflect the consent of the governed so emphatically proclaimed by the House of Burgesses against the Stamp Act?
Magna Carta’s revolutionary concept of holding the King accountable for a breach of contract with England’s nobles was broadened in the Declaration of Independence. Thomas Jefferson established rights above Common Law and Medieval precedents with the famous phrase, “We hold these truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights.”
The final version of the American Congress can be traced back to the Magna Carta itself, but in addition, our Founders drew on a rich source of political ideas that developed throughout the same period from Magna Carta on. The initiating event then was the core of the British “Ancient Constitution,” but the foundation was the growing notion that the people ought to play a greater role in making laws. The representative body was the mechanism to achieve that goal.
“There’s a natural tension between being a good representative and taking an interest in government,” said Conable. Toward the end of his Congressional career, he began to believe his interest in government was beginning to overtake his desire to be a good representative.
Rep. Thomas Reed (R-ME) comes closest to Gingrich’s impact on the Legislative Branch. Reed was known for his communication ability, and his mastery of parliamentary procedure. As speaker (1889-1891/1895-1899) he mastered both of these skills to bring the House of Representatives back into alignment with the original rules written by Thomas Jefferson. Many consider his success assured the “survival of representative government”. Gingrich remains an insightful commentator and provocative thinker. Returning the House to the rule of law, and being highly responsive to the will of the voter, remain lasting historic achievements that strengthened our democracy.
Moynihan is one of a dying breed in Washington- someone who effectively could interact with members and presidents from the opposing political party and who as Avalon notes tried to bring the long perspective to various issues.
A true gentleman of the House, he advanced his principles without rancor and earned the respect of friends and adversaries alike.
While Tip and Reagan had different political views and approaches, they showed that great debates and the efforts of compromise sometimes can result in good end results for the nation.
Taft was known as “Mr. Republican” because of his allegiance to limited government at home and a non-interventionist foreign policy that represented mainstream Republican thinking during the mid-twentieth century. While not the most gregarious politician, he was a well-respected, diligent statesman who dedicated his life to an ideal of public service.
Michael Joseph Mansfield served as both representative and senator from the state of Montana, and would go on to serve as United States Ambassador to Japan. Mansfield was born March 16, 1903 in New York though his life soon took a turn for the difficult.
LBJ is remembered for his significant legislative achievements both as a member of Congress over a long period of time and in his Vice President and President roles.
Howard W. Smith, a Virginia Democratic congressman, was one of America’s most powerful politicians from the New Deal to the Great Society. A master obstructionist who chaired the House Rules Committee, he used his power to fight the liberal agendas of presidential administrations from Franklin D. Roosevelt to Lyndon B. Johnson.
Samuel Taliaferro Rayburn was one of the most influential and respected leaders in American history. Rayburn served with distinction as he achieved many important changes to American society, government and the nation’s economy. Rayburn holds the record for serving longer than any other Speaker of the House in U.S. history. According to longtime friend and colleague Congressman Richard Bolling, Rayburn was cleverly described as the “baldest and levelest head in Washington.”
Today’s Congress accomplishes a lot less than the one over which Reed presided because party leaders no longer have the powers that Reed created. Majority party cohesion has been undermined, and the leaders of the majority party are increasingly incapable of advancing necessary reforms. As a result, the people increasingly look to the President. Studying Reed’s vision for the House of Representatives reveals another possibility: with stronger parties, Congress can maintain its own authority, and accomplish the business of the people more efficiently, than it does today. Reed and his rules illustrate a potential solution for the disappearing role of Congress in contemporary American politics.
James G. Blaine was a politician from Maine who first served in the Maine House of Representatives and then moved to the federal stage, where he became Speaker of the United States House of Representatives, a United States Senator, Secretary of State and Republican nominee for President. Nicknamed “the Magnetic Man,” Blaine was one of the leaders of the Republican Party during the late 19th Century and one of the great debaters.
LISTEN ON SOUNDCLOUD: “For the President and the Party: The Loyal Career of Senator Thomas Hart Benton” “Now you…rascal, I am going to punish you. Defend yourself!”[1] The taunt ferociously barreled into the infant autumn air of Nashville, Tennessee, flying comfortably from the tongue of a notorious brawler with a slender, scarred frame that lamented […]
In a speech in 1837, he issued a warning free citizens must never forget, “There are men, in all ages, who mean to exercise power usefully; but who mean to exercise it. They mean to govern well; but they mean to govern. They promise to be kind masters; but they mean to be masters.”
Daniel Webster, alongside Henry Clay and John C. Calhoun, was a member of the “Great Triumvirate,” that remarkable group of speakers whose grand and widely-circulated speeches enlivened debates in the Senate and electrified the American people. Webster, the “Great Orator,”
Calhoun’s approach to consent of the governed, as expressed through concurrent majorities of the whole and of its affected constituent minorities, presents a relevant model for peaceful resolution of fundamental political questions that well preserves both “Liberty and Union” in a large, diverse, and divided country.
For nearly the first half of the nineteenth century, three men dominated the debates over the great issues of the day. They were the “Great Triumvirate,” Henry Clay of Kentucky, Daniel Webster of Massachusetts, and John C. Calhoun of South Carolina. Continued tomorrow
…the first to understand that Congress was in need of leadership if it were to be understood as an important power of the government rather than a mere servant of the president. Although he was a man of action, his speeches bequeath a rich knowledge of constitutional theory that allow us to appreciate the importance of the rules and orders of the legislature.
LISTEN ON SOUNDCLOUD: While John Quincy Adams was not an exact contemporary of the Founding Fathers he was, in more ways than one, their offspring. Indeed, his bond with the generation of 1776 was familial as well as philosophical. And his sense of duty to that generation, the project they set in motion, and the […]
On June 11, 1963, President John F. Kennedy issued his Report to the American People on Civil Rights, calling on Congress to pass a civil rights bill to address discrimination and segregation against African Americans.
On December 10, 1941, the America First Committee dissolved. Shortly beforehand, on December 8 of 1941, Congress voted for war with Japan. The vote was nearly unanimous and the sole vote against war came not from a member of America First.
One hundred and thirty years after ratification of the United States Constitution, women were, at long last, granted full citizenship and voting rights in America. The Nineteenth Amendment is a piece of the struggle for freedom that had eluded half of America’s population for more than a century.
As the pace and seriousness of events quickened, a broad coalition of isolationists and anti-war activists came together to form the America First Committee.
Throughout the debate over the Treaty of Versailles and League of Nations, Senator Lodge stood firmly for the American Constitution and its principles. He did support world peace and hoped to avert another world war, but he would not sacrifice American principles in an attempt to achieve it. He sought to do what was right according to the Constitution.
Known as “the Little Giant,” Stephen A. Douglas was a politician from Illinois who designed the Kansas-Nebraska Act and served as a member of the House of Representatives and the Senate, and was the Democratic Party nominee for president against Abraham Lincoln in the election of 1860. Lincoln and Douglas also faced each other during the 1858 race for Senator from Illinois, and the two engaged in a series of famous debates on the question of slavery and the future of our nation. Named the Little Giant because he was small in stature, he was not little when it came to politics and his place in our history as a great debater.
Webster returned fire. In a speech equally aroused as Hayne’s, and laced with historical references, constitutional argument, and heavy doses of sarcasm, Webster rejected Hayne’s attacks and painted a picture of an optimistic nationalism that stood in stark contrast to Hayne’s defensiveness.
Over the course of approximately a week in late January, 1830, a debate occurred in the United States Senate that historians consider the greatest ever in that chamber. Before a gallery packed with listeners, under the animated gaze of Vice-President John C. Calhoun, Senators Robert Hayne of South Carolina and Daniel Webster of Massachusetts waged an oratorical battle.
But the three days of debate prior to passage have been described as “rancorous” and “fiery” and “blistering,”
The First Congress was deeply divided over policies at the very start of the new nation. The debates generally centered around the economic policies and financial plans of Secretary of the Treasury Alexander Hamilton. The contention about the National Bank in particular generally revealed a sectional and increasing partisan divide between the Hamiltonians and Jeffersonians.
The vote was the result of a political maneuver to accommodate a matter of much more immediate impact, the realization of Alexander Hamilton’s economic salvage blueprint for the new nation. That blueprint proved crucial to the country’s economic and political fortunes. At the same time, it opened fissures of sectional conflict, constitutional theory, and political partisanship that had remained below the surface, if barely, during the preceding decade.
At stake in this struggle over removal power was more than the interior design of a particular department; this debate would shape the way in which the two elected branches of the federal government would relate to one another under the system of the separation of powers. For those who favored a significant role for Congress in the removal power, the concern was to at least check, if not entirely control the executive’s enforcement of law.
Taken together, the political debates of Henry Clay, Daniel Webster, and John Calhoun guided American politics like no other group save the Founding generation. As Merrill D. Peterson put it, “their arrival on the political stage announced a new era of American statesmanship…
Patrick Henry cautioned, “The liberties of a people never were, nor ever will be, secure, when the transactions of their rulers may be concealed from them.” In their respective chambers, the U.S. Senate and U.S. House of Representatives have developed unique ways to air differences and make sure information is shared. The Legislative Branch’s culture of debate hold’s power accountable and preserves our nation’s civic culture.
In crisis Americans are famous for forgetting their differences and pulling together, but the Senate was designed to be our natural rallying point. In the members of that body we were meant to see the best of our country, calmly reminding us of who we are as a people, and inspiring us by their example to follow the path of our duty.
Their coolness, experience and wisdom would balance the passions, inexperience and hastiness in the other body. Thus, the planned role of the Senate was vital to enacting wholesome and necessary national legislation, was indispensable to the general government and placed the American republic in a likely position to gain an estimable reputation among the nations.
A second legislative chamber “doubles the security to the people by requiring the concurrence of two distinct bodies in schemes of usurpation or perfidy.” The more hoops that have to be jumped through, the more groups that have to be coordinated, the harder it is for men (and women) bent on tyranny to accomplish their aims.
Madison examines various suggested mechanisms by which government might be constrained and liberty preserved. Drawing on the Americans’ experience with the British government as well as their own state governments, he rejects all as insufficient. Thus, formal declarations in state constitutions of the legislative power being vested in the legislature, the executive in a chief officer, and the judicial in the courts, are “a mere demarcation on parchment of the constitutional limits of the several departments” and would not suffice to prevent dangerous concentration of power.
Despite the ensuing controversy, we should note that both proponents and opponents of the new Constitution agreed that the prime purpose of government was to secure individual liberty. They also recognized that intrusive government was the prime danger to liberty, even though it was also recognized that some government was necessary to preserve and protect the American system of liberty.
Although he enumerated several reasons for his opposition, Madison then gave his friend hope when he stated that most important reason in favor of a Bill of Rights was that, “The political truths declared in that solemn manner acquire by degrees the character of fundamental maxims of free Government, and as they become incorporated with the National sentiment, counteract the impulses of interest and passion.” Madison thought the liberties would become engrained in the American character.