Guest Essayist: Chris Burkett


In 1966, Mao Zedong launched what was known as “The Cultural Revolution.” This bloody period in China’s history lasted for more than a decade. Mao’s objective in calling for the revolution was to purge the People’s Republic of China of the bourgeois and capitalist elements that had allegedly infiltrated the government and produced a series of failures and setbacks in the communist nation’s development. In reality, it was an attempt by Mao, who was Chairman of the Communist Party of China, to reclaim social and political control in the country.

Mao created several radical groups to wage war against conservative and traditional groups within China. Groups of “Red Guards” went on the offensive to destroy precious artifacts in an effort to eliminate all memory of traditional Chinese culture. This also included attempts to eliminate all remaining traditional religious belief in the country, as it had been based, to a certain extent, on the idea that religious opinions were private and personal. To accomplish this, many historical and religious sites were destroyed by Mao’s revolutionaries.

Mao also called for the taking of all remaining private property from his “cultural” (i.e., political) enemies. In order to “cleanse the class ranks,” many people were sent to “the countryside” to work in “reeducation camps” (that is, concentration camps far removed from the eyes of people in the larger cities, at which hundreds of thousands – possibly millions – of people were tortured or killed). The Cultural Revolution finally ended with Mao’s death in 1976.

The terrible abuses of natural rights during Mao’s “Cultural Revolution” remind us of the importance of the United States Constitution, which explicitly guarantees the due process of law before anyone can be deprived of life, liberty, or property. The Constitution also enshrines the fundamental idea of individual freedom, perhaps most importantly in the First Amendment’s protection of religious liberty. And the separation of powers, and checks and balances written into the Constitution, make it less likely that any single so-called “Great Leader,” such as Mao, can carry out such brutal schemes of oppression and widespread murder. In the next essay, we will look at the wisdom of the Federalists and Anti-federalists affirming the importance of these ideas.

Christopher C. Burkett is Associate Professor of History and Political Science, and Director of the Ashbrook Scholar Program at Ashland University.

 

Click here for American Exceptionalism Revealed 90-Day Study Schedule
Click here to receive our Daily 90-Day Study Essay emailed directly to your inbox

Guest Essayist: Jeanne McKinney


Reeling in the remarkable victory of breaking free of Britain’s tyranny, America’s leaders had a duty to preserve their hard-won independence. The American Revolution had set about in motion the notion that the “People” should have a voice in their own government, in their own destinies. The idea of individual rights and protection of those rights by a system of laws and guarantees was a breaking, out-of-the-box plan. Never-in-history had a government like that been constructed. The delegates (many who were Founding Fathers) attending the Philadelphia Constitutional Convention of 1787 set about to do that. They wrote the Constitution.

James Madison wrote the document, yet there was input from other Founding Fathers. This patriotic group of leaders included Thomas Jefferson and John Adams. Jefferson had authored the Declaration of Independence, and John Adams put his pen to the Defense of the Constitution of the Government of the United States of America. Patrick Henry provided input supporting the inclusion of the Bill of Rights.

Did any of these delegates want any chance of their America to be overrun by tyranny again? Absolutely not. They were familiar with tyrannical regimes of the past and surely noted their failures. They also had to envision any oppressive absolute power ideologies that the future may usher in.

“Rebellion to tyranny is obedience to God” wrote Thomas Jefferson.

“Tyranny is a constant in human history,” says Walter R. Newell in his book “Tyrants.”

Newell analyzed three forms of it, writes author Peter Leithart.  https://www.patheos.com/blogs/leithart/2016/03/three-forms-of-tyranny/

“Garden Variety” tyrant (most common in ancient history). Men who claim ownership of an entire country to use for “their own pleasure and profit and to advance their own clan and cronies.”

“Reforming tyrant.” These individuals are “unconstrained by law or democracy.” Honor, wealth, and power are their obsession. They act to improve their society by the unobstructed exercise of their unlimited authority. Think Alexander the Great, Julius Caesar, Nebuchadnezzar, Louis XIV, Napoleon etc… In a position of absolute power, they used violence for specific aims.

“Millenarian tyrant” is Newell’s third class of tyrants, pens Leithart. Here lies modern-day globalists that are fueled to impose an oppressive “millennial blueprint” on the masses in which the individual “will be submerged in the collective and all privilege and alienation will be forever eradicated.” Think Robespierre, Stalin, Hitler, Mao Tse-Tung, Pol Pot, Gaddafi, and modern-day jihadist terrorists.

These types of tyrants are masters of the veil of illusion. They are experts in the craft of propaganda. They appear “to raise up the downtrodden, to end exploitation, to create a society in which men would no longer use their fellow men as tools for their own enrichment or domination,” says Warren H. Carroll in his book, “70 years of the Communist Revolution.”

Just look at fall of democracy in Afghanistan in August 2021. The country now lies under a brutal tyrannical regime. The Taliban promises to eradicate any former law or policy that does not conform to their interpretations of strict religious Sharia law. Their interpretations of Islam are their own, using a religious shroud to justify evil beheadings, the stoning of women, and random executions in front of families. This band of violent insurgents who overran the seat of government in Kabul, claim their death-marked regime is ‘what the people want.’ Now, the Afghan people have no voice. All the news stations in Afghanistan (as of the date of this writing), are under Taliban control for propaganda purposes.

For twenty years, American troops stopped the terrorists’ plans, helping to protect Afghanistan’s form of democracy. Afghan people experienced pockets of freedom like never before. They had a chance to vote, for girls to attend schools, and for their voices to be heard. Now, Afghan citizens live in fear and many in hiding, left behind while the world watched, aghast, as the Taliban executed a lightning -quick campaign towards power. Yes, an unprotected country can be toppled in merely weeks.

Tyrants blind people to the truth of who they are, which is an elite ruling class who holds all the cards. They demand you suppress your own individual interests and limit achievement for the “good of the nation.” “They” know what’s best for you even when it is not.

Hitler’s fascist Germany did not ‘know best.’

Although Hitler had not revealed the full extent of his totalitarian aims before he came to power, as Führer (“Leader”) of the Third Reich, he attempted not only to control all political power but also to dominate many institutions and organizations that were previously independent of the state, such as courts, churches, universities, social clubs, veterans’ groups, sports associations, and youth groups. Even the German family came under assault, as members of the Hitler Youth were told that it was their patriotic duty to inform on anti-Nazi parents. (Britannica)

His government was marked by a radical authoritarian dictatorship, that imposed stringent government controls on the economy and oppressed opposition. Fascists reject free and competitive elections. Instead, Hitler sported an aggressive nationalism to his Nationalist Socialist German Workers’ Party (Nazi) party, poisoned by extreme racism. Yet, Hitler brainwashed followers justifying his evil violence with lies of being a superior race. He created a police state to handle those who opposed; his own countrymen were killed and tortured.

Hitler’s regime conducted the most prolific and inhuman genocide of the Jewish people in history. His raging Anti-Semitism spurred the Holocaust and will forever haunt generations of the earth. Hitler forced his way to absolute power, to become a murderous madman marked by the notorious sign of the swastika. In the end, it all came tumbling down and he fell from Aryan god and fascist king to a shriveling coward hiding in his underground bunker who took his own life.

America’s Founding Fathers emplaced critical safeguards in the governing Constitutional documents preventing any tyrant from using the law of the land to gain absolute power.

The American quest for stability, security, and liberty.

“If you want something you have never had, you must be willing to do something you have never done.” – Thomas Jefferson

Tyranny will never provide stability, because oppressed masses will eventually rebel. As the Founders created the Constitutional structure for a newly formed republic called America, they set about to assure a balance of power in the governance. This helped facilitate a secure and stable system of operating within a framework of laws that ensured individual liberties and rights. The United States Constitution was ratified by 11 of the original states in 1778 and by all 13 original states by 1790. The Bill of Rights was ratified in 1791.

The first three articles establish the three branches of government, Executive, Legislative, and Judicial. Articles four through seven of the Constitution describe the relationship of the states to the Federal Government, establish the Constitution as the supreme law of the land, and define the amendment and ratification processes. (National Archives)

https://www.archives.gov/founding-docs/constitution/what-does-it-say

In this 3-part governmental environment – there could be no Hitler without an overthrow of the republic. It could come in the form of a swift coup or the slow, but steady integration of oppressive ideologies. Our Founders knew well the feel of imperialism, yet had not experienced socialism, communism, fascism, or radical Sharia law. They were inspired, forward-thinking men in revolutionary times, out to eradicate tyranny in any form to occupy their land of inheritance.

Modern-day socialists and communists set out to break and degrade the laws of the republic nation, one by one. Those who decry the Constitution as invalid or outdated are traitors and enemies of America. The concept of freedom will never be outdated.

The Constitution: A steely defense against tyranny.

Anyone with a mind to implant tyranny over the American people will hit a military wall trying to do away with or overthrow the Constitution…American men and women who wear the uniform and go to war swear an oath to protect and defend the revered United States document.

The Oath of Enlistment (for enlisted):

“I, _____, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; and that I will obey the orders of the President of the United States and the orders of the officers appointed over me, according to regulations and the Uniform Code of Military Justice. So help me God.”

The President of the United States swears an oath to “preserve, protect, and defend” the Constitution, which is the solid foundation our government stands upon. Members of Congress are similarly bound to uphold the Constitution. Yet, we see it happening every day, as “factions” threaten the early delegates’ great plan for a free self-governing people.

James Madison, Alexander Hamilton, and John Jay wrote the Federalist papers, a collection of 85 articles and essays to promote the ratification of the United States Constitution. In #10 of the Federalist papers, Madison discussed the “factions” that pose a threat to a republic.

Factions, Madison explained, are groups “united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.” Factions out for political power put their own interests first, not the common good.

Then Madison acknowledged that “the public good is often decided, not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority.”

Failed regimes remind and warn. 

According to Hitler, democracy undermined the natural selection of ruling elites and was “nothing other than the systematic cultivation of human failure.” Joseph Goebbels, Hitler’s minister of propaganda, maintained that the people never rule themselves and claimed that every history-making epoch had been created by aristocrats. (Britannica)

America denounces Goebbels’ obvious lie with 232 years of an enduring constitutional republic creating a nation others look up to and many try to copy.

An enduring question for Americans is this: How do we protect ourselves from tyranny?

These wayward political pundits ignore the failures of the Fascists, Communists, Marxists, or radical Islamists that have tried to conquer the world. It is vital to fix Congress to restore the Founders’ ideal of a republican government. We must stop the crushing of individual exceptionalism and the degradation of guaranteed rights and protections. There must be a halt to anti-constitutional propaganda, and violators of constitutional law must be prosecuted.

What all tyrants of history fail to recognize is the power of the human will. Individual will is given by God to all mankind to make his own choices. Our wills do not savor being suppressed by others who sit on thrones, the Oval Office, or Congress who think they ‘know best’ for everyone and peddle ‘sameness.’ For that alone, the writers of the Constitution have adhered to the designs of God. They gave the American people the opportunities to grow the individual, to expand great potential, to gain knowledge, and to magnify the human experience.

Freedom can only exist in a framework of laws that supports it. The Constitution, if followed, will continue to prove itself on the world stage to survive the attacks of tyranny, which continue to threaten.

Jeanne McKinney is an award-winning writer whose focus and passion is our United States active-duty military members and military news. Her Patriot Profiles offer an inside look at the amazing active-duty men and women in all Armed Services, including U.S. Marine Corps, Navy, Army, Air Force, Coast Guard, and National Guard. Reporting includes first-hand accounts of combat missions in Iraq and Afghanistan, the fight against violent terror groups, global defense, tactical training and readiness, humanitarian and disaster relief assistance, next-generation defense technology, family survival at home, U.S. port and border protection and illegal immigration, women in combat, honoring the Fallen, Wounded Warriors, Military Working Dogs, Crisis Response, and much more. Starting in 2012, McKinney has won multiple San Diego Press Club “Excellence in Journalism Awards,” including eight “First Place” honors, as well as multiple second and third place recognition for her Patriot Profiles published printed articles. Including awards for Patriot Profiles military films. During the year 2020, McKinney has written and published dozens of investigative articles in her ongoing fight to preserve America the Republic, the Constitution, and its laws. One such story was selected for use in a legal brief in the national fight for 2020 election integrity.

 

Click here for American Exceptionalism Revealed 90-Day Study Schedule
Click here to receive our Daily 90-Day Study Essay emailed directly to your inbox

Guest Essayist: Winfield H. Rose


Thanks to the grace of God, the United States is descended from the English political tradition. The last verse of Robert Frost’s poem “The Road Not Taken” comes to mind: “I shall be telling this with a sigh Somewhere ages and ages hence: Two roads diverged in a wood, and I—I took the one less traveled by, And that has made all the difference.” This applies to countries as well as people, and here the two roads are absolute monarchy and constitutional monarchy.

England chose the less-traveled road of constitutional monarchy and “that has made all the difference.” This goes back to the Magna Carta of 1215, the accession of King James I in 1603, the Mayflower Compact of 1620, the English Civil War of 1640-1649, the regicide of King Charles I in 1649, the Glorious Revolution of 1688 and the English Bill of Rights of 1689. In the midst of these very important events was the founding of Virginia, the first permanent English colony in the New World, in 1607, and then Plymouth colony in 1620, eventually to be followed by the other eleven.

These events have in common these principles: (1) the power of the king or government is not absolute but subject to law; and (2) the legislature is the law-making body of the realm and holds the power of the purse.

Fearing for his life, King James II fled to France in December, 1685 whereupon Parliament declared an abdication, that is, the throne was vacant. Parliament then functioned as a constitutional convention by drafting and adopting the English Bill of Rights of 1689 and inviting Mary, the elder daughter of James II, and her Dutch husband William of Orange to assume the throne as joint monarchs subject to the conditions stipulated in the Bill of Rights. Mary and William agreed and did so. This is called the Glorious Revolution, and indeed it was glorious because at this time England became a constitutional rather than an absolute monarchy.

Accordingly, the English government henceforth was divided into three interlocking, interdependent parts: the Crown, the Lords Temporal and Spiritual, and the people represented by the House of Commons.

Charles de Secondat, Baron de Montesquieu was a wealthy, intelligent and energetic Frenchman born near Bordeaux on January 18, 1689 during the reign of Louis XIV and at the very time the Glorious Revolution was unfolding in England. In 1728 he left France to travel abroad. After visiting Italy, Germany, Austria, and other countries, he went to England, where he lived for two years and was greatly impressed with the English political system.

After his return to France in 1731 he began work on his masterpiece, The Spirit of the Laws, one of the most important and best-known works ever written on political philosophy, published in 1748. This book is a comparative study of three types of government: republic, monarchy and despotism, and it is clear he detested despotism.

Montesquieu’s Book XI is titled “Of the Laws Which Establish Political Liberty With Regard to the Constitution” and reads, in part, as follows: “ . . . constant experience shows us that every man invested with power is apt to abuse it,  . . . To prevent this abuse, it is necessary … that power should be a check to power. . . . When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.

“Again, there is no liberty, if the judiciary power be not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be subject to arbitrary control; for the judge would be then the legislator. Were it joined with the executive power, the judge might behave with violence and oppression.

“There would be an end to everything, were the same man or the same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing the public resolutions, and of trying the causes of individuals.” (emphasis added)

It should be clear, then, that, while John Locke was the intellectual father of the Declaration of Independence, Montesquieu was the intellectual father of the United States Constitution. The twin principles of separation of powers and checks and balances permeate it from beginning to end. This includes not only the national government itself but all the state governments and the principle of federalism which defines the relationships between them.

In the 47th Federalist Madison says, “The oracle who is always consulted and cited on this subject is the celebrated Montesquieu. If he be not the author of this invaluable precept in the science of politics, he has the merit at least of displaying and recommending it most effectually to the attention of mankind.”

Madison fully develops the idea in his 51st Federalist: “ . . . the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.  . . . This policy of supplying, by opposite and rival interests, the defect of better motives, might be traced through the whole system of human affairs, private as well as public.” (emphasis added)

The economic situations in the United States and Germany in the early 1930s were uncomfortably similar while the political situations were, though similar in certain respects, different in others. Both countries were suffering from an economic depression with high unemployment and high inflation, plus the hopelessness and despair that went with them. Germany was alienated not only from its administration in office but also from its entire political system, and there was much unrest.

The American people were substantially alienated from their administration in office but not from their entire political system. It was, however, on trial. There was no guarantee it would survive. No one knows what might have happened if Franklin Roosevelt had not been elected in 1932 but he was elected and, as Washington was not Napoleon,  Roosevelt was not Hitler.

There were several important differences between the United States and Germany at this time. One was that the American political system based on Montesquieu’s principles of separation of powers and checks and balances had been in operation for 140 years and had solidified into a strong tradition. Those holding positions in the three branches were dedicated to those principles and  that tradition and were not egomaniacs interested in one-man rule.

We remained on the road less traveled, thank God, but Germany did not. Their tradition was authoritarian, one-man rule and they reverted to it—and made it infinitely worse and more evil—on January 30, 1933, when Hitler took power. Ideas and traditions matter.

Winfield H. Rose, Ph.D., is Distinguished Professor of Political Science Emeritus at Murray State University.

 

Click here for American Exceptionalism Revealed 90-Day Study Schedule
Click here to receive our Daily 90-Day Study Essay emailed directly to your inbox

Guest Essayist: Winfield H. Rose


How the catastrophe of Nazism occurred in Germany remains a question for the ages. It had no single cause, but resulted from a unique conjunction of traditions, events and personalities.

Christianity had existed in Germany for centuries. The Germans had a great civilization based on literature, philosophy, architecture, music and science. But they also had a strong military/warrior tradition going back at least to the Battle of the Teutoburg Forest in 9 A.D. This slaughter of Roman troops was one of the worst military defeats Rome ever suffered and established the Germans as fierce fighters.

The Thirty Years’ War (1618-1648) following the Protestant Reformation caused great loss of life and virtually destroyed Germany. Two centuries were needed for Germany to recover. A great tragedy of this period is the discrediting of European Christianity. Protestants and Catholics did not come to love and respect one another as brothers and sisters in Christ.  After killing each other by the thousands, they decided Christianity and its values were no longer relevant and cast them aside. This was facilitated during the next two centuries by the emigration of many German Christians to the United States, thereby making the remaining population less religious and more secular.

As bad as the religious wars of the 17th century were, England and France retained their national identities whereas Germany did not. For two centuries the national identity of Germany was, at best, unclear and, at worst, lost – except in the minds of two men, one a politician and one a musician. Richard Wagner the musician was born in 1813 and Otto von Bismarck the politician was born in 1815 while the Congress of Vienna was meeting. Both desired German restoration and worked to achieve it.

Three short, successful wars under “iron” Chancellor Bismarck in the 1860s and 1870s enabled him to unite Germany politically and found the autocratic Second Reich in 1871 under Kaiser Wilhelm I. After Bismarck’s dismissal and death, it became even more autocratic under Kaiser Wilhelm II.

Thus, in contrast to France, Britain and the United States, there was no democratic tradition in Germany. German culture included an extreme deference to authority and to authority figures. When Adolph Hitler (1889-1945) established his own one-man rule, Germans were used to it.

The 19th century saw the wars of the charismatic conqueror Napoleon Bonaparte (1769-1821), the philosophers Georg Wilhelm Friedrich Hegel (1770-1831), Karl Marx (1818-1883) and Friedrich Nietzsche (1844-1900), and the composer Richard Wagner who died in 1883. All these except Marx, who was so radical he was expelled from the country, contributed to the strange mix that was to become National Socialism.

Hegel used the term “alienation” to describe a profound disconnect between what we see as real and what we desire as ideal and wish to be real. The greater the disconnect (dissonance, difference), the greater the alienation. It includes unhappiness, sorrow, grief, depression, anger, rage and, very importantly, a compulsion to seek remediation.

To remedy alienation, Hegel exalted the state over the individual and glorified Germanic civilization as the culmination of history, thereby advancing the secularization of society and encouraging and solidifying the natural human ethnocentrism and racism of the German people.

One could say Wagner took up where Hegel left off. Wagner’s musical dramas are set in a mythical, distant and glorious past which has been lost and begs to be restored. What Bismarck did politically, Wagner did culturally – and that was to create a German state (Reich) for Germans.

Nietzsche’s part in this tragic progression was the ideas of “transvaluation of values,” “beyond good and evil,” “God is dead” and “Superman.” The first three terms jointly mean the rejection of Judeo-Christian and Greco-Roman (Western) civilization and values, the rejection of divine and natural law and the redefinition of good and evil (evil is good and good is evil).

Nietzsche differed from Hegel in that, while Hegel thought German civilization was the best possible and the best ever seen, Nietzsche regarded it with scorn and contempt, calling it a “supreme abortion (miscarriage)” which needed to be replaced with a master race of Ubermenschen or “Supermen” who would be as superior to present humans as present humans were to apes. Thus, Nietzsche removed the moral and ethical restraints of civilization and thereby enabled the German people to descend into barbarism in pursuit of mythical glory.

It cannot be determined exactly how much of this history and philosophy Hitler actually knew and understood, but it is safe to say he grasped the basics. Nietzsche had a younger sister who set up a small museum in his memory. There is a picture of Hitler visiting that museum and admiring a bust of Nietzsche (Dagobert D. Runes, Pictorial History of Philosophy, New York: Philosophical Library, 1959, p. 301). It is well known that Wagner was Hitler’s favorite composer and that he frequently played Wagner’s music on a phonograph. Wagner was intensely anti-Semitic and did not accept Jews as true Germans; neither did Hitler, as is well known.  Add to this the popularity of eugenics and social Darwinism and you have a very toxic civic culture.

World War I and its aftermath put the final pieces in place for the rise of Hitler. Hitler himself served in the war and was wounded. He was obsessed with Germany’s defeat and restoration.

The abdication of the Kaiser required by President Woodrow Wilson created a severe leadership vacuum in Germany. The Allied wartime blockade of Germany’s North Sea ports was continued to June 1919, thus disrupting spring planting and worsening Germany’s already dire famine.

The Treaty of Versailles was a disaster. Germany was not allowed to participate and the war guilt and reparations clauses were especially onerous, thereby giving Hitler rallying cries of which he later made extensive use. At its signing, French Marshal Ferdinand Foch said, “This is not peace. It is an armistice for 20 years.” He missed it by three months.  The Weimar Republic which followed and its constitution were seen as imposed by foreign powers and therefore illegitimate.

Inflation was severe. It was said that, before the war, you took your money to shop in a purse and brought your goods home in a wagon but, after the war, you took your money in a wagon and brought your goods home in a purse. The significance of the postwar German economic collapse cannot be overstated.

Hitler exploited the economic collapse of the 1920s but was also “lucky,” if that’s the right word, insofar that there was a model leader in nearby Italy who, according to the conventional wisdom of the day, was showing the world how the postwar European catastrophe could be overcome.  That leader was “Il Duce,” Benito Mussolini, who came to power in 1922 and became Hitler’s prototype autocrat.

The failed “Beer Hall Putsch” of 1923 provided another stroke of luck for Hitler. While he could have been incapacitated or executed, he was imprisoned only for a few months, a short time but long enough to dictate Mein Kampf.

Yet the most vile aspect of Hitler’s reign was his scapegoating of, German Jews. Human beings are always tempted to avoid accepting responsibility for our failures; they are always, people tend to think, the fault of someone else. And Hitler was the worst temptation. Jews and anti-Semitism had existed in Europe for centuries. They had been blamed for outbreaks of the plague and other calamities, so why not, Hitler thought, blame them for Germany’s present troubles?

Finally, Hitler had great oratorical ability and used it to bring all these factors together into the mass movement known as National Socialism (Nazism). Germany had fallen apart and saw itself as the ravished victim of evil forces. Hitler offered change, hope, order, prosperity and restoration. The German people were quick to climb on board but, to their eternal grief and shame, eventually learned they had made a Faustian bargain with the devil. Their slogan was “Ein Volk, ein Reich, ein Fuehrer,” one people, one empire, one leader, but what they got was defeat, destruction and everlasting infamy.

Winfield H. Rose, Ph.D., is Distinguished Professor of Political Science Emeritus at Murray State University.

Guest Essayist: Andrew Langer


We are going to assemble the best thought and broadest knowledge from all over the world to find these answers. I intend to establish working groups to prepare a series of conferences and meetings — on the cities, on natural beauty, on the quality of education, and on other emerging challenges. From these studies, we will begin to set our course toward the Great Society. – President Lyndon Baines Johnson, Ann Arbor, MI, May 22, 1964

In America in 1964, the seeds of the later discontent of the 1960s were being planted. The nation had just suffered an horrific assassination of an enormously charismatic president, John F. Kennedy, we were in the midst of an intense national conversation on race and civil rights, and we were just starting to get mired in a military conflict in Southeast Asia.

We were also getting into a presidential election, and while tackling poverty in America wasn’t a centerpiece, President Johnson started giving a series of speeches talking about transforming the United States into a “Great Society”—a concept that was going to be the most-massive series of social welfare reforms since Franklin Roosevelt’s post-depression “New Deal” of the 1930s.

In that time, there was serious debate over whether the federal government even had the power to engage in what had, traditionally, been state-level social support work—or, previously, private charitable work. The debate centered around the Constitution’s “general welfare” clause, the actionable part of the United States Constitution building on the Preamble’s “promote the general welfare” language, saying in Article I, Section 8, Clause 1 that, “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;” (emphasis added)

Proponents of an increased federal role in social service spending have argued that “welfare” for this purpose means just what politicians today proffer that it does: that “welfare” means social service spending, and that because the Constitution grants Congress this power, such power is expansive (if not unlimited).

But this flies in the face of the whole concept of the Constitution itself—which is the idea of a federal government of limited, carefully-enumerated powers. The Founders were skeptical of powerful, centralized government (and had fought a revolution over that very point), and the debate of just how powerful, how centralized was at the core of the Constitutional Convention’s debates.

Constitutional author (and later president) James Madison said this in Federalist 41:

It has been urged and echoed, that the power “to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defense and general welfare of the United States,’’ amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare. No stronger proof could be given of the distress under which these writers labor for objections, than their stooping to such a misconstruction. Had no other enumeration or definition of the powers of the Congress been found in the Constitution, than the general expressions just cited, the authors of the objection might have had some color for it; though it would have been difficult to find a reason for so awkward a form of describing an authority to legislate in all possible cases.

In 1831, he also said, more plainly:

With respect to the words “general welfare,” I have always regarded them as qualified by the detail of powers connected with them. To take them in a literal and unlimited sense would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators.

This was, essentially, the interpretation of the clause that stood for nearly 150 years—only to be largely gutted in the wake of FDR’s New Deal programs. As discussed in the essay on FDR’s first 100 days, there was great back and forth within the Supreme Court over the constitutionality of the New Deal—with certain members of the court eventually apparently succumbing to the pressure of a proposed plan to “stack” the Supreme Court with newer, younger members.

A series of cases, starting with United States v. Butler (1936) and then Helvering v. Davis (1937), essentially ruled that Congress’ power to spend was non-reviewable by the Supreme Court… that there could be no constitutional challenge to spending plans, that if Congress said a spending plan was to “promote the general welfare” then that’s what it was.

Madison was right to be fearful—when taken into the context of an expansive interpretation of the Commerce Clause, it gives the federal government near-unlimited power. Either something is subject to federal regulation because it is an “item in or related to commerce” or it is subject to federal spending because it “promotes the general welfare.”

Building on this, LBJ moved forward with the Great Society in 1964, creating a series of massive spending and federal regulatory programs whose goal was to eliminate poverty and bring greater equity in social service programs.

Problematically, LBJ formed a series of “task forces” to craft these policies—admittedly because he didn’t want public input or scrutiny that would lead to criticism of the work his administration was doing.

Normally, when the executive branch engages in policymaking, those policies are governed by a series of rules aimed at ensuring public participation—both so that the public can offer their ideas at possible solutions, but also to ensure that the government isn’t abusing its powers.

Here, the Johnson administration did no such thing—creating, essentially, a perfect storm of problematic policymaking: a massive upheaval of government policy, coupled with massive spending proposals, coupled with little public scrutiny.

Had they allowed for greater public input, someone might have pointed out what the Founders knew: that there was a reason such social support has traditionally been either the purview of local governance or private charity, that such programs are much more effective when they are locally-driven and/or community based. Local services work because they better understand the challenges their local communities face.

And private charities provide more effective services because they not only have a vested interest in the outcomes, that vested interest is driven by building relationships centered around faith and hope. If government programs are impersonal, government programs whose management is far removed from the local communities is far worse.

The end result is twofold:  faceless entitlement bureaucracies whose only incentive is self-perpetuation (not solving problems), and people who have little incentive to move themselves off of these programs.

Thus, Johnson’s Great Society was a massive failure. Not only did it not end poverty, it resulted in a devastating perpetual cycle of it. Enormous bureaucratic programs which still exist today—and which, despite pressures at various points in time (the work of President Bill Clinton and the GOP-led Congress after the 1994 election at reforming the nation’s welfare programs as one example), seem largely resistant to change or improvement.

The Founders knew that local and private charity did a better job at promoting “the general welfare” of a community than a federal program would. They knew the dangers of expansive government spending and the power that would accrue with it. Once again, as Justice Sandra Day O’Connor said in New York v. United States (1992), the “Constitution protects us from our own best intentions.”

Andrew Langer is President of the Institute for Liberty, as well as Chairman and Founder of the Institute for Regulatory Analysis and Engagement. IFL is a non-profit advocacy organization focused on advancing free-market and limited government principles into public policy at all levels. IRAE is a non-profit academic and activist organization whose mission is to examine regulations and regulatory proposals, assess their economic and societal impacts, and offer expert commentary in order to create better public policies. Andrew has been involved in free-market and limited-government causes for more than 25 years, has testified before Congress nearly two dozen times, spoken to audiences across the United States, and has taught at the collegiate level.

A globally-recognized expert on the impact of regulation on business, Andrew is regularly called on to offer innovative solutions to the challenges of squaring public policy priorities with the impact and efficacy of those policies, as well as their unintended consequences. Prior to becoming President of IFL and founding IRAE, he was the principal regulatory affairs lobbyist for the National Federation of Independent Business, the nation’s largest small business association. As President of the Institute for Liberty, he became recognized as an expert on the Constitution, especially issues surrounding private property rights, free speech, abuse of power, and the concentration of power in the federal executive branch.

Andrew has had an extensive career in media—having appeared on television programs around the world. From 2017 to 2021, he hosted a highly-rated weekly program on WBAL NewsRadio 1090 in Baltimore (as well as serving as their principal fill-in host from 2011 until 2021), and has filled in for both nationally-syndicated and satellite radio programs. He also created and hosted several different podcasts—currently hosting Andrew and Jerry Save The World, with long-time colleague, Jerry Rogers.

He holds a Master’s Degree in Public Administration from Troy University and his degree from William & Mary is in International Relations.

 

Click here for American Exceptionalism Revealed 90-Day Study Schedule
Click here to receive our Daily 90-Day Study Essay emailed directly to your inbox

Guest Essayist: Patrick Garry


Numerous economic downturns and crises plagued America during the first one hundred fifty years of its existence. The nineteenth century witnessed repeated depressions. Undoubtedly, the Great Depression of the 1930s amounted to the most severe economic crisis ever experienced in the United States. As with all previous crises, however, the country recovered from the Great Depression and lifted the rest of the world into an age of greater prosperity.

Economically, America has transcended the Great Depression, and did so relatively quickly. Constitutionally and politically, however, the Great Depression still haunts the United States. This haunting legacy arose because of actions the federal government took in response to the world-wide economic events of the 1930s. The New Deal agenda pushed by President Franklin D. Roosevelt and his Democratic Party permanently changed the nature and role of the federal government, as well as the public’s expectations and demands on that government.

Contrary to one hundred and fifty years of political and constitutional experience, the New Dealers decided to combat the Great Depression by concentrating huge amounts of power within the executive branch of the federal government, leading to the bureaucratic behemoth that now characterizes the administrative state. This administrative state has produced a government in which individual citizens have little voice or control, thereby leaving that government with little accountability to the public. The administrative state has produced staggering, incomprehensible deficits that will at some point leave some future generation with an insurmountable burden. Because of its size, its distance from individual citizens, and its unaccountable bureaucrats, the administrative state has also spawned a deepening culture of political corruption within the federal government. None of these occurrences, however, would have surprised the constitutional Framers, who tried very diligently to protect against such occurrences.

The United States Constitution was a unique document. It created an exceptional form of government, unknown in the rest of the world at that time. Among its many exceptional features, one of the most important was its power-limiting feature. Although the Constitution established a strong national government, it also imposed an array of limitations on that power to prevent the federal government from becoming so strong that it could threaten the liberty of its citizens. As the Framers foresaw, a government without adequate controls could easily accumulate the kind of power that would then insulate that government from public accountability, providing the conditions rife for corruption and abuses.

Three characteristics of the U.S. Constitution that would later be ignored and even contradicted by the New Deal promoters are: first, the Constitution’s enumerated power scheme, in which only the powers specifically outlined in the Constitution are granted to the federal government; second, the separation of powers scheme, in which the power of each branch of the government – e.g., executive, legislative and judicial – is checked by the other branches; and third, the federalism scheme of the Constitution, in which the power of the federal government is limited by the role and power of the states. By concentrating unprecedented powers in the federal executive branch, the New Deal violated the federalism and the separation of powers dictates of the Constitution. And by giving to that newly empowered central government new and unprecedented authority over subject areas not enumerated in the constitutional delegation to the federal government, the New Deal violated the enumerated powers scheme of the Constitution.

Not only did this constitutional contradiction swell the size and power of the federal government beyond the wise forecasts of the Framers, it also restricted then the vibrancy of self-government in the United States. As the Framers foresaw, self-government thrives when the public engages in its government and actively directs that government. But as the Framers also foresaw, such engagement requires accountability – and accountability is best achieved when government is closer and more open to the public. This closeness and openness characterize state and local governments, but it was just those governments that the New Deal restrained by giving such vast powers and authority to the federal government.

Many of the problems with the federal government today would never occur in families or small business or state or local governments. That is because in those venues there is a greater transparency and accountability. While there might be corruption in state governments, it is nowhere near the scale of corruption at the federal level. The Framers knew this; and therefore to save the federal government from itself, the Framers imposed limitations on the power of that government, because the Framers knew the temptations for excess and abuse that would be created by unlimited power.

The Great Society programs of the 1960s and 1970s replicated the New Deal arguments for more power to be concentrated in the federal executive branch. And not surprisingly, many of the Great Society programs have descended into corruption and waste. The federalism revolution waged by the Supreme Court in the 1990s tried to revive the Constitution’s limited government scheme. Even President Bill Clinton in 1996 admitted that “the era of big government was over.” However, with the 2008 recession, the Affordable Care Act and the covid pandemic, big government came roaring back with a vengeance. Whether this unintended turn in America’s constitutional history can be meaningfully addressed, whether a lasting reform of the New Deal and Great Society distortions of constitutional structure power can be achieved will depend on America’s lasting commitment and embrace of the Framers’ wisdom.

 Patrick Garry is professor of law at the University of South Dakota and is the author of Limited Government and the Bill of Rights and The False Promise of Big Government: How Washington Helps the Rich and Hurts the Poor.

 

Click here for American Exceptionalism Revealed 90-Day Study Schedule
Click here to receive our Daily 90-Day Study Essay emailed directly to your inbox

Guest Essayist: Tony Williams


The average government textbook explains that the American constitutional order has three branches of government: legislative, executive, and judicial which make up the reason for the three branches of government in the foundational principle of separation of powers. Drawing on Enlightenment thinker, Montesquieu, James Madison wrote in Federalist #51 that it was “admitted on all hands to be essential to the preservation of liberty, it is evident that each department should have a will of its own.”

The Founders feared that tyranny would result when the separation of powers was violated and one branch of government became too powerful.  “The accumulation of all powers, legislative, executive, and judiciary, in the same hands… may justly be pronounced the very definition of tyranny.” Scholars have used the terms imperial presidency, imperial judiciary, and imperial Congress to describe a dangerous accumulation of power in one of the branches.

All of this constitutional analysis should remind us that an unofficial fourth branch of government—the administrative state, or simply, the bureaucracy—amassed an incredible amount of regulatory power throughout the course of the twentieth century and into this century. Indeed, if one were to examine a chart of all the regulatory agencies, it would be hard to find an area of American daily life that is not regulated in dozens of ways throughout the day.

The reason for the regulatory agencies makes a certain amount of sense in an advanced industrial society and economy. All Americans want to fly in safe airplanes, drink clean water, and know what they are eating.

The administrative state began in the late nineteenth and early twentieth century with similarly good intentions. Corruption was rife as trusts had undue influence in Congress and the state legislatures. Reformers wanted to create more non-partisan governance with the creation of a civil service freer from the spoils system of the two parties.

Most importantly, the progressives at the turn of the century sought to change the nature of American government from the Founders. Legislative politics and the separation of powers principle, they believed, was too messy and often an impediment to regulating an advanced industrial economy. They wanted rule by objective administrative experts who would apply their academic and scientific expertise for rational, efficient government resulting in progress and an ordered society.

The result was a great expansion of the administrative state. The Interstate Commerce Commission, Food and Drug Administration, and the Federal Trade Commission were only some of the executive agencies that Congress created to regulate and rationalize the economy and society during the Progressive Era. President Woodrow Wilson and Congress continued this trend during World War I with several wartime agencies to manage mobilization efficiently.

The New Deal in the 1930s saw a dramatic increase in regulatory power of the federal government. Among these were numerous executive agencies Congress established during the Great Depression to achieve FDR’s goals of relief, recovery, and reform. These were consistent with the progressive vision of rational and orderly rule by experts. The Federal Communications Commission, National Labor Relations Board, and the Securities & Exchange Commission were only some of the agencies comprising the New Deal administrative state.

The Supreme Court initially thought the administrative state was running amok. In Schechter v. U.S. (1935), the Court ruled that the National Industrial Recovery Act was unconstitutional in part because Congress had delegated too much authority to the executive branch and violated the separation of powers. However, FDR appointed several justices to the Supreme Court, and it soon endorsed the administrative state for decades. In the 1984 Chevron decision, the Court went so far as to assert that courts should defer to administrative agencies interpreting their powers in congressional laws.

During the 1960s and 1970s, the Great Society and administration of President Richard Nixon created more executive agencies to regulate additional parts of the economy and society. The bureaucracy was greatly expanded with a wide variety of anti-poverty agencies and environmental agencies such as the Environmental Protection Agency. The administrative state became so large and powerful that one of the factors in the rise of the modern conservative movement culminating in the ascension of Ronald Reagan to the presidency was the promise of cutting the size of the federal government and thus the bureaucracy.

The rise of the bureaucratic administrative state was problematic for a number of reasons. First, it dramatically increased the scale and scope of federal government well beyond that envisioned by the Founders. Second, it substituted rule by the people and their representatives in Congress for rule by unelected experts in the executive branches. Third, at times, administrative agencies were allowed to set their own rules, enforce them, and decide and rule on disputes thereby amassing the power of all three branches of government.

James Madison and the Framers of the United States Constitution were right to separate the powers of America’s government into three branches. They understood that an accumulation of too much power in a single body would endanger liberty and republican government by violating the principle of a separation of powers as an important check on human nature.

Tony Williams is a Senior Fellow at the Bill of Rights Institute and is the author of six books including Washington and Hamilton: The Alliance that Forged America, with Stephen Knott. Williams is currently writing a book on the Declaration of Independence.

 

 

Click here for American Exceptionalism Revealed 90-Day Study Schedule
Click here to receive our Daily 90-Day Study Essay emailed directly to your inbox

Guest Essayist: Gary Porter
Pres. Theodore Roosevelt in 1904. He influenced Pres. Woodrow Wilson & other progressives to follow. All three 1912 Democratic presidential election candidates claimed to be progressives.


At a Townhall meeting in Hayward, California in 2010, then Congressman Peter Stark conceded: “Yes, the Federal government can do most anything in this country.” This statement would be shocking news to the likes of James Madison, Thomas Jefferson, George Washington, even “big government” Alexander Hamilton. A government which can “do most anything” is certainly not the government the Framers tried to create in 1787. If Congressman Stark was right, the “limited and enumerated powers” government that Madison believed they had designed no longer existed. If a limited government no longer exists in the United States, there has to be a reason, a cause for such a dramatic change.

The cause, in one word, is “progressivism.” Progressives have worked diligently, mostly quietly, to bring us to the point where “the Federal government can do most anything in this country,” and particularly where the federal court system is willing to elevate the progressive political agenda to the status of constitutional law.

This is not intended to be a comprehensive essay on progressivism, books, books and more books are devoted to that subject; but to proceed we must have a common understanding of what progressivism is and what progressives believe with which to compare to the principles of the United States Constitution.

prə-grĕs′ĭ-vĭz″əm, noun, “A political ideology that favours progress towards better conditions in society.”[i]  “As a political movement, progressivism purports to advance the human condition through social reform based on advancements in science, technology, economic development and social organization.”[ii]

Who doesn’t want to better the human condition? to improve our standard of living? Who would object to such a lofty goal? If that is the goal, how does a society work toward bettering its social, economic and humanitarian conditions? “The devil’s in the details.”

“In the United States, progressivism began as an intellectual rebellion against the political philosophy of Constitutionalism as expressed by John Locke and the Founders of the American Republic, whereby the authority of government depends on observing limitations on its just powers. What began as a social movement in the 1880s[iii], grew into a popular political movement referred to as the Progressive era; in the 1912 United States presidential election, all three U.S. presidential candidates claimed to be progressives.”[iv]

The winning progressive of the 1912 presidential election, Woodrow Wilson, is credited with coining the phrase “Living Constitution,” which holds that the Constitution must be reinterpreted frequently to keep it “relevant” to modern times. But to fully understand progressivism’s effect on the presidency, we must go back to America’s first acknowledged progressive President: Theodore Roosevelt.[v] Roosevelt’s approach to presidential power was that“[t]he executive power [is] limited only by specific restrictions and prohibitions appearing in the Constitution or imposed by Congress under it constitutional powers.”[vi] In other words, there are no limitations to presidential power except those specifically mentioned in the Constitution or acts of Congress. To Roosevelt, the Constitution vested the President with near unlimited power.

But Roosevelt and progressives who followed him ran into twin obstacles: the U.S. Constitution and the principle of majoritarianism. The Constitution created a limited-and-enumerated-powers government and required respect for the law, law created by legislative majorities. Majoritarianism requires 51 percent or better support for a policy to become law. Progressives have never been in a majority in the United States – only a small percentage of Americans, about 12 percent of American adults, [vii] today consider themselves “progressive.” But progressives have one trait in abundance: an unwavering belief they are right, and patience for the “long fight.”

Their first objective was to dismantle the restrictions placed on the federal government by the Constitution, and then, knowing that would not be sufficient, to mold the federal judiciary, particularly the Supreme Court, into a body willing to look beyond the law in favor of societal “progress,” a court system willing to follow the philosophy of Supreme Court Associate Justice Thurgood Marshall: “You do what you think is right, and let the law catch up.”[viii] Until recently, they had succeeded famously in both respects.

What do Progressives believe? Although there are political parties called “Progressive” in other countries, notably countries where socialism is ascendant, there is no Progressive Party in the United States. Wikipedia identifies the Democratic Party as the current embodiment of progressivism in the United States.[ix] But within the Democratic Party there are “classical liberal,” moderate democrat, environmental and other factions. Progressives, while making great inroads, are still a minority. Research by Elaine Kamarck at the Brookings Institution in 2018 found that 44 percent of Democrats identified as a “progressive,” compared to 29 percent in 2016 and 26 percent in 2014.[x]

Bottom line: there is no single acknowledged platform or list of progressive beliefs. But here’s my view after considering multiple sources.

Utopianism. If there is one thing that distinguishes progressivism from other forms of political philosophy, it is an unflinching belief in the perfectibility of man and society. Human society has myriad problems; but progressivism holds that they can all be solved if we simply work together – and implement the solutions progressives have come up with. Mankind is innately good and those infrequent deviations when men and women do wrong should be handled carefully and gently – incarceration is usually a last resort (unless politics get involved; witness the January 6th prisoners).

Atheism/Agnosticism. Although a progressive form of Christianity has reportedly emerged in the last few years (focusing on the so-called “Social Gospel”), progressives typically have no use for God, divine revelation, divine providence, or the concept of original sin.

Universalism/Globalism. Progressives believe a single, one-world government is the perfect vehicle to bring about progressive ends as quickly and efficiently as possible.

Statism. Progressives view government as a tool, perhaps the best tool to achieve the perfect society. While they tout “freedom from government interference” they do not hesitate to use the power of government to achieve their societal ends.

Collectivism/Cooperation. Progressivism holds to a diminished view of individualism and private property, replaced by the need for everyone to cooperate to achieve progressive goals, to include forced “cooperation” if necessary.

Historicism. Historicism is a belief that history must be understood in context, and if the proper progressive-anointed context is not present in the traditional way of teaching certain history, the history must be re-interpreted in the “correct” context (the 1619 Project being the perfect example).

Enhanced Group Rights, Diminished Individual Rights. A diminished view of free speech, for example, replaced by limitations on speech in pursuit of “harmony,” “non-offensiveness” and an obsession with “disinformation.” British police arrested someone recently because their repost of a post on Facebook caused someone “anxiety.”[xi]

Social Justice. “Social Justice” is measured by equality of outcome rather than equality of opportunity. Social Justice is of paramount importance to the progressive, and the full strength of government should be employed to achieve it. “Too much economic and political power is concentrated in too few hands.”

Living Constitution. As has been quoted, progressivism is at least partially a response to constitutionalism, the idea that a written constitution both empowers and limits the power of the government it creates. But progressives do not abandon the Constitution altogether when they encounter its limits, they simply re-interpret the document to remove the limits. “Progressivism insists that the principled American constitutionalism of fixed natural rights and limited and dispersed powers must be overturned and replaced by an organic, evolutionary model of the Constitution.”[xii]

A typical response of a progressive to being told that something can’t be done for constitutional reasons was voiced in 2010 by Speaker of the House, Nancy Pelosi: “If the gate Is closed, we will go over the fence, if the fence is too high, we will pole vault in.”[xiii]

Use of the Courts

In a 1912 speech, Theodore Roosevelt complained that the courts often obstruct the will of the people in an unproductive manner. I’m not sure which “people” Roosevelt was talking to, but if you believe this, how do you overcome it? You populate the courts with progressive judges and justices. When you can’t seem to get the Supreme Court to see things your way, you employ a little “arm twisting” such as the famous “Court Packing” threat of FDR.

Perhaps the most compelling proof that progressives see the court as the mechanism for enacting policy preferences which don’t stand a chance in the democratic process was the recent “full-court press” used to try to prevent the confirmation of three conservative justices to the Supreme Court. But even this theater was over-shadowed by the apoplectic reactions that followed the Dobbs decision, in which a conservative-majority court returned the issue of abortion to the democratic process in each state. This, predictably, has led to demands to “pack the court” and return the court to the progressive policy-factory it once was.

Use of the Public Schools

Progressive educator John Dewey, typically called the “father of modern public education,” wrote: “I believe that education is the fundamental method of social progress and reform… a regulation of the process of coming to share in the social consciousness; and that the adjustment of the individual activity on the basis of this social consciousness is the only sure method of social reconstruction.”[xiv] (Emphasis added.) Today, it is safe to say, progressives dominate the U.S. public school systems.  They control the curriculum, administration, library book selections and of course the actual teaching that goes on in most classrooms. According to the Center for American Progress, the public school system is graduating more progressives each June.[xv]

The Constitution’s Challenges to Progressivism

Originalism. There is no question that the Founders intended the Constitution to be interpreted as they understood it. In an 1824 Letter to Henry Lee, James Madison insisted that:

“I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution. And if that is not the guide in expounding it, there may be no security for its faithful exercise.”

Thomas Jefferson’s view was similar:

“On every question of construction, let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed.”

“But the Founders didn’t have to contend with the global threat of climate change” is the frequent retort today. “Certainly, the Constitution must be adapted to deal with this modern threat.” So, who best to “adapt” the Constitution to modern conditions? Why, nine unelected judges in black robes, of course. We certainly can’t leave such an important issue to democracy now, can we?

Checks and Balances. Leaving aside the myth that the Framers created three “co-equal” branches of government,[xvi] the framers did imbed certain safeguards against a single branch of government assuming unwarranted power. “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, selfappointed, or elective, may justly be pronounced the very definition of tyranny.”[xvii] Unfortunately, many of these “checks and balances” have been systematically disassembled by the Supreme Court. For a list of the court decisions which have essentially shredded the Constitution’s limits on governmental power see here or read: The Dirty Dozen, How Twelve Supreme Court Cases Radically Expanded Government and Eroded Freedom, 2008, by Robert A. Levy and William Mellor.

Separation of Powers. This doctrine is another traditional restraint on the accumulation of unintended power which has been at least partially dismantled by the Supreme Court. The 1989 decision in Mistretta v. U.S. found that:

“… our jurisprudence has been driven by a practical understanding that in our increasingly complex society, replete with ever changing and more technical problems, Congress simply cannot do its job absent an ability to delegate power under broad general directives. Accordingly, this Court has deemed it “constitutionally sufficient” if Congress clearly delineates the general policy, the public agency which is to apply it, and the boundaries of this delegated authority.” (Emphasis added.)

In other words, the non-delegation of powers doctrine held by John Locke and others of the Founding Era would be ignored, the people not consulted, and Congress simply given this ability to delegate. Making matters worse was the opinion in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.,[xviii] The Supreme Court declared that federal courts should defer to the decisions of Executive Branch agencies when those agencies interpret the guidance in a statute if the “agency’s answer is based on a permissible construction [emphasis added] of the statute.” Some of these unsupported agency rules are challenged in court and overturned, and Congress has the power to overturn them as well, but a legal challenge is an expensive process, a quarter of a million dollars or more, so not every improper rule is challenged.

The Failures of the Progressive Vision

Progressivism came about as a challenge to constitutionalism. It should be clear by now that progressivism and constitutionalism simply cannot coexist; one must yield.

The basic problem with progressivism is that there is no end state, no way to tell whether progressive policies have worked; until the nebulous, undefinable state of “perfection” is reached, there can be only a steady, monotonous march onward toward “progress.”

Progressivism has brought us a federal government that can regulate every aspect of business, whether it deals with interstate commerce or not; a Code of Federal Regulations exceeding 180,000 pages; $2 Trillion in additional costs to U.S. businesses due to regulation compliance, a cost passed on to customers of those businesses; 4,500 plus federal crimes (compared with four in the original Constitution); the unwarranted taking of private property; in short: a government “that can do most anything in this country.”

Constitutionalism yielded during the Warren Court years and made somewhat of a comeback during the Rehnquist Court. What is disturbing to progressives now is the prospect of a new conservative court rolling back the “progress” progressives have made over the last 40-60 years. If there is reason for hope for constitutionalism today it lies in the present Roberts Court, placed during the Trump administration, with a 6-3 conservative to progressive balance. If the court can survive the progressives’ “full-court press” to change this balance, America might begin to see more of the progressive agenda to dismantle the original intentions of the United States Constitution, dismantled in the years ahead.

For further reading:

Progressivism

America Transformed: The Rise and Legacy of American Progressivism, 2021, by Ronald Pestritto.

Excuse Me, Professor, Challenging the Myths of Progressivism, 2015, Lawrence W. Reed.

Progressivism, A Primer on the Idea Destroying America, 2014, by James Ostrowski.

Plundered, How Progressive Ideology is Destroying America, 2012, by Michael Doffman.

How Progressives Rewrote the Constitution, 2006, by Richard Epstein.

The Progressive Era, Liberal Renaissance or Liberal Failure, 1965, Arthur Mann, ed.

The Supreme Court

Supreme Disorder; Judicial Nominations and the Politics of America’s Highest Court, 2020, by Ilya Shapiro.

Judicial Tyranny, 2014, by Mark Sutherland.

Storm Center, the Supreme Court in American Politics, 2011, by David Obrien.

Packing the Court, The Rise of Judicial Power and the Coming Crisis of the Supreme Court, 2009, by James Burns.

The Dirty Dozen, How Twelve Supreme Court Cases Radically Expanded Government and Eroded Freedom, 2008, by Robert A. Levy and William Mellor.

Men In Black, How the Supreme Court is Destroying America, 2005, by Mark Levin.

Courting Disaster, How the Supreme Court is Usurping the Power of Congress and the People, 2004, by Pat Robertson.

The Tempting of America, 1990, by Robert Bork.

Gary Porter is Executive Director of the Constitution Leadership Initiative (CLI), a project to promote a better understanding of the U.S. Constitution by the American people. CLI provides seminars on the Constitution, including one for young people utilizing “Our Constitution Rocks” as the text. Gary presents talks on various Constitutional topics, writes periodic essays published on several different websites, and appears in period costume as James Madison, explaining to public and private school students “his” (i.e., Madison’s) role in the creation of the Bill of Rights and the Constitution. Gary can be reached at gary@constitutionleadership.org, on Facebook or Twitter @constitutionled.

[i] The American Heritage® Dictionary of the English Language, 5th Edition.

[ii] https://en.wikipedia.org/wiki/Progressivism

[iii] Some writers identify the Progressive Era as 1880 to 1920; I contend the Progressive Era never stopped.

[iv] https://en.wikipedia.org/wiki/Progressivism

[v] Roosevelt was President from September 14, 1901 to March 4, 1909.

[vi] Theodore Roosevelt, An Autobiography of Theodore Roosevelt, ed., Stephen Brennan (New York: Skyhorse Publishing, 2011), 304–10

[vii] Accessed at https://news.gallup.com/poll/141218/americans-unsure-progressive-political-label.aspx Note, 54%of respondents were “unsure” whether the progressive label fit them.

[viii] https://www.azquotes.com/quote/914008

[ix] https://en.wikipedia.org/wiki/Progressivism#Progressive_parties_or_parties_with_progressive_factions

[x] https://www.npr.org/2018/10/29/659665970/as-more-democrats-embrace-progressive-label-it-may-not-mean-what-it-used-to

[xi] https://citizenfreepress.com/breaking/man-arrested-for-causing-anxiety-on-facebook/.

[xii] Bradley D. S. Watson, accessed at: https://amgreatness.com/2021/08/11/how-progressives-rewrote-american-history/

[xiii] Nancy Pelosi, accessed at: https://www.speaker.gov/newsroom/if-the-gate-is-closed-we-will-go-over-the-fence-if-the-fence-is-too-high-we-will-pole-vault-in

[xiv] John Dewey, My Pedagogic Creed, School Journal vol. 54 (January 1897), pp. 77-80

[xv] https://www.americanprogress.org/article/public-opinion-snapshot-millennials-are-a-progressive-generation/

[xvi] It is an irrefutable fact that the powers of the Congress eclipse those of either of the other two branches.

[xvii] James Madison, Federalist 47.

[xviii] Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984)

 

Click here for American Exceptionalism Revealed 90-Day Study Schedule
Click here to receive our Daily 90-Day Study Essay emailed directly to your inbox

Guest Essayist: Will Morrisey


Good government produces good administration, Publius has written. Good administration is what we need from the executive branch, charged as it is with carrying out the laws enacted by the legislature within the framework of the supreme law of the land, the United States Constitution. A good executive must act with energy. To enable executives so to act, the offices they occupy must have unity, duration, adequate provision in terms of money and personnel, and competent powers. Publius therefore defends the Framers of the Constitution in their establishment of a presidency unlike the consular system of Rome, which assigned domestic policy to one consul, foreign (and especially military) policy to another. The American president serves as chief administrative officer for domestic policy as well as Commander-in-Chief of the armed forces. Congress may not manipulate his salary and the president can exercise the power to veto Congressional legislation, thereby maintaining his independence of judgment. He is, then, neither a monarch nor a legislator but a republican executive.

In Federalist 71, Publius presents the reasons for and the institutional means to enable duration in office, “the second requisite to the energy of the executive authority.” There can be no substitute for character, for “the personal firmness of the executive in the employment of his constitutional powers.” Nor can there be any substitute for “the stability of the system of administration which may have been adopted under his auspices” as a consequence of that firmness of character. But no person can exercise such character or carry out such a system without an institutional framework which permits him to do so.

As always, Publius shows the link between the Constitution’s institutional arrangements and human nature. “It is a general principle of human nature that a man will be interested in whatever he possesses, in proportion to the firmness or precariousness of the tenure by which he holds it; will be less attached to what he holds by a momentary or uncertain title, than to what he enjoys by a durable or certain title.” The firmness of the man must be reinforced by the firmness of the office. In regimes whose executives serve at the whim of the legislature, as in many parliamentary systems, why would any person of character take the executive office seriously? Better to be a power broker in the parliament than the hapless holder of fly-by-night executive powers, powers that will not last if you exhibit the slightest hint of independence. And if you accepted such an office, why risk anything to defend powers which are not truly yours to wield? Such an institutional arrangement undermines civic courage, inclining the one who suffers under it, “too little interested in it to hazard any material censure or perplexity from the independent exertion of his powers, or from encountering the ill-humors, however transient, which may happen to prevail, either in a considerable part of the society itself, or even in a predominant faction in the legislative body.”

This defect had already been on display under the Articles of Confederation, which did not separate executive power from the legislative branch. The Americans who wanted to retain the Articles regime against the proposed Constitution were “inclined to regard the servile pliancy of the executive to a prevailing current, either in the community or in the legislature, as its best recommendation.” They want representative government to mirror Athenian-style direct democracy as much as possible, to have it register the opinions and even the passions of the people and their elected legislators. Publius considers such notions as “very crude,” with regard both to the ends and especially the means of government.

The Declaration of Independence set down the just purpose of American government as securing the safety and happiness of the American people, a purpose justified by their natural right to life, liberty, and the pursuit of happiness under the Laws of Nature and of Nature’s God. Much of that is “self-evident,” the Declaration says. Publius agrees: “It is a just observation that the people commonly intend the PUBLIC GOOD.” But as those same people themselves acknowledge, having learned it from experience under the Articles regime, they do not “always reason right about the means of promoting” the public good, “beset as they continually are by the wiles of parasites and sycophants, by the snares of the ambitious, the avaricious, the desperate, by the artifices of men who possess their confidence more than they deserve it, and of those who seek to possess rather than to deserve it.”

If self-government is therefore dangerous, “the republican principle demands that the deliberate sense of the community should govern the conduct of those to whom” the people “intrust the management of their affairs.” Characteristically, Publius attempts to firm up the chance that the distinctively human characteristic, reason, will have the greatest possible authority in government while acknowledging the impassion—Christian would say ‘fallen’–character of human beings.

There will, then, be circumstances “in which the interests of the people are at variance with their inclinations, it is the duty of the persons whom they have anointed to be the guardians of those interests to withstand the temporary delusion in order to give them time and opportunity for more cool and sedate reflection.” Thus to serve the people “at the peril of their displeasure” takes “courage and magnanimity.”

It is important to pause and appreciate the moral structure of Publius’ argument, here. He wants to see the rule of reason in the United States—to the extent possible, given human frailty. The Constitution generally, and a four-year, renewable presidential term in particular, provides an institutional framework for such rule. But neither the rule of reason nor the defense of the Constitution can survive without two other virtues that array themselves against popular passion. Civic courage is easy to understand and to appreciate, if not commonplace. We have all seen examples of men and women, even children, who have refused to buckle under ‘peer pressure.’ Magnanimity is less well understood.

Magnanimity literally means greatness of soul: in Latin, magnus means great, large; anima means soul. The classic description of the great-souled individual comes from Aristotle’s Nicomachean Ethics IV.3. The great-souled man, Aristotle writes, “deems himself worthy of great things and is worthy of them.” This means that he possesses all the cardinal virtues—courage, moderation, justice, and prudence—to a very high degree. Accordingly, he stands ready to withstand the demands of others, however intensely they may clamor, when he sees that those demands are cowardly, immoderate, unjust, or imprudent. He can take the heat, and he can do it without resentment.

A republican regime undergirded by a democratic civil society will test him. He can pass that test, but without a firm institutional foundation on which to stand he will be physically overwhelmed by the majority tide, helpless to resist “the humors of the legislature.” The Articles of Confederation government had folded executive and judicial power into the legislature, giving inadequate support for reason, courage, or magnanimity—the finest human characteristics. “To what purpose separate the executive or the judiciary from the legislature,” as the new Constitution had done, “if both the executive and the judiciary are so constituted as to be at the absolute devotion of the legislative” branch? The powers would then be separated in name only, with the legislature “exert[ing] an imperious control over the other departments,” unbalancing the apparently balanced powers of the federal government as framed by the Constitution.

This is exactly what has been happening under the Articles. The same thing will happen again unless the president enjoys a stable tenure in office. In view of this, “it may be asked whether a duration of four years would answer to the end proposed,” whether such a duration of a presidential term will suffice to resist attempts by legislators to dominate the system. Publius does not pretend that he knows the answer, since a four-year term was untried in previous American governments and the lifelong term of a European monarch—in principle if not always in practice as stable a provision as can be had—was highly undesirable. It is nonetheless reasonable to think that a four-year presidential term “would have a material influence upon the spirit and character of the government.”

Why? Because any person “endowed with a tolerable portion of fortitude” should see that there is “time enough” before the current term expires, and the prospect of re-election draws near, for the people and their legislative representatives to have calmed down and to be ready to assess the president with equanimity. True enough, this would mean that he might not dare to resist popular disapproval so readily as his term drew to an end, but for most of the time he would be able to hold steadily to his constitutional duties and best judgment. At the same time, unlike a monarch, a president won’t stay in office long enough “to justify any alarm for the public liberty.” Which is not to say that his enemies won’t try to raise such alarms.

Publius’ understanding of the presidency not only departs from the conception of executive power which prevailed under the Articles, it also contradicts the new conception of the presidency advanced by the Progressives, more than a century later. President Woodrow Wilson rejected the United States Constitution as an antiquated and constricting product of a bygone era, and equally rejected its moral foundation in the laws of Nature and of Nature’s God. In place of natural right, he substituted historical right, claiming that the course of events, guided by divine Providence, provided the true moral light for humanity. In view of this continuing historical progress, the Constitution must be reconceived as an ‘elastic’ or ‘living’ document, to be reinterpreted by political leaders such as himself who placed themselves on the cutting edge of that progress. In place of magnanimity, Wilson substituted compassion, not so much a virtue as a sentiment, one intended to carry the people along on a tide of emotion with slogans like ‘I feel your pain.’ The president, then, should serve not so much as the executor of Congressional legislation within a stable constitutional framework but as the principal leader of the nation, the person who senses where public opinion should go next, appealing more to their passion than their prudence in the hope of induing the people to follow him to that ever-new, ever-higher destination.

As a result, the Progressives raised expectations to unfulfillable heights, grafting their own unusual brand of moving-target ‘constitutionalism’ onto the old Constitution, with predictably confusing and self-contradictory results that have persisted to this day.

Will Morrisey is Professor Emeritus of Politics at Hillsdale College, and Editor and Publisher of Will Morrisey Reviews.

 

 

Click here for American Exceptionalism Revealed 90-Day Study Schedule
Click here to receive our Daily 90-Day Study Essay emailed directly to your inbox

Guest Essayist: Joerg Knipprath


At the 1896 Democratic Party convention in Chicago, a former Congressman from Nebraska, William Jennings Bryan, gave a stirring oration in favor of the party’s “pro-silver” political platform. Filled with passion and a near-revolutionary fire, the speech concluded with a warning to those who wanted the United States to maintain a gold standard for the dollar, “You shall not press down upon the brow of labor this crown of thorns; you shall not crucify mankind upon a cross of gold.” Bryan underscored this patently religious analogy by posing at its conclusion with his arms outstretched like someone nailed to a cross. The convention erupted in pandemonium. The ecstatic reaction of the delegates resulted in the “Boy Orator of the Platte River” receiving the party’s nomination for president of the United States at age 36, the youngest major party nominee ever. He became the Democrats’ presidential standard bearer twice more, in 1900 and 1908, again the only major party nominee to do so. He lost each time.

In addition to the Democratic Party nomination, Bryan received that of the more radical, mostly rural-based Populist Party, which favored federal government intervention in the economy. The Populists split after the 1896 election, with most supporters voting for Democrats, while others, typically urban workers, drifted to the Socialist Party. Although historians have long debated the direct influence of the Populist Party on the Progressive movement of the turn of the 20th century, there are clearly identifiable connections between them in regards to economic and political reforms. One difference, however, is in their class identification. The Populist movement was working class and agrarian. The Progressive reformers were upper-middle class urbanites, many from the Midwest. Related to that difference was the greater support for Progressivism among intellectuals and “scribblers,” which produced a more coherent political program and a stronger ideological framework. Ultimately, this produced far greater political success for the Progressive agenda—and more lasting repercussions.

As that passage from the “Cross of Gold” speech suggests, Bryan had a strong evangelical and Calvinist bent. He had a religious conversion experience as a teenager and in his entire life remained a theological conservative who preached a social gospel. His resort to religious imagery and apocalyptic language was not uncommon among Progressives. Theodore Roosevelt could thunder to the assembled delegates at the Progressive Party convention in 1912, “We stand at Armageddon, and we battle for the Lord,” as his enraptured supporters marched around the hall, singing “Onward, Christian Soldiers” and similar spirited hymns.

Those Progressives who were more skeptical of religion nevertheless had similarly messianic visions of reform which would deliver the country from its ills and lead to the Promised Land. The forces for change would be a democratized political structure invigorated by mass participation; a concerted program to attack the root causes of societal dysfunctions, from poverty to alcohol, narcotics, gambling, and prostitution; laws to prevent exploitation of the large urban working class; and, most fundamental, a rational system of policy-making controlled by a strong executive and a stable bureaucracy of technological and scientific experts. As presidential nominee Woodrow Wilson announced in his campaign platform in 1912, “This is nothing short of a new social age, a new era of human relationships, a new stage-setting for the drama of life.” Certainly nothing picayune or transitory about that!

The first of those goals was accomplished over time with the popular election of Senators through the 17th Amendment, and through the adoption by many states of the initiative and referendum process, primary elections for nominations for public office, more expanded “home rule” for localities, and non-partisan elections for local offices. Further, the half of American women excluded from the franchise received it through the 19th Amendment, adopted in 1920. On the other hand, by the late 1920s, the Progressives’ nativism eliminated the previous practice in a number of states of letting non-citizen immigrants vote.

The second came in the form of state laws against vice. Lotteries became illegal. Prostitution, which was ubiquitous at the turn of the 20th century typically in the form of brothels, was already against the law; those laws began to be enforced more vigorously. Another of America’s periodic movements to ban alcohol got under way. Because state laws often proved unable to control interstate markets of vice made possible through easier modes of transportation, the federal government became involved. Narcotics were regulated through taxation under the Harrison Narcotics Tax Act of 1914. The interstate transportation of lottery tickets was prohibited in 1895 through a federal law upheld by the Supreme Court in Champion v. Ames in 1903. The Mann Act, or White Slave Traffic Act of 1910, prohibited taking a woman across state lines for immoral purposes. That law was upheld by the Supreme Court in Hoke v. United States in 1913 and extended to non-prostitution private dalliances in Caminetti v. United States in 1917. After 27 states declared themselves “dry,” and others adopted “local options” to prohibit alcohol, temperance groups, especially those connected to upper-middle class women’s organizations, succeeded in having the 18th Amendment adopted in 1919. That national ban on production, sale, and transportation of alcohol for drinking was quickly followed by enabling legislation, the Volstead Act, that same year.

The third area of social reform was advanced through the adoption of maximum hour laws, minimum wage laws, unionization protections, and anti-child labor laws around the turn of the 20th century. Some such efforts, especially by Congress, initially came a cropper before the Supreme Court as violations of the United States Constitution. They fared better during the next wave of Progressivism under President Franklin Roosevelt in the 1930s.

The fourth, a government and society directed by an unelected technocratic elite of policy-making experts, lay at the heart of the Progressive movement. It proved to be a long-term project. To understand the “Progressive mindset” requires a closer examination of two men, Woodrow Wilson and Herbert Croly. There were other influential intellectuals, such as Walter Lippmann (who wrote A Preface to Politics in 1913, among many other works) and Brooks Adams (who was a grandson of President John Quincy Adams and wrote A Theory of Social Revolution that same year), but Wilson and Croly were renowned.

Thomas Woodrow Wilson was dour, humorless, and convinced of the fallen nature of all but the elect few. For human progress to flourish, he postulated the need for strong leaders with proper principles who would provide the discipline and vision for the moral guidance of the weak at home and abroad. Calvinist in appearance, outlook, and family background (his father and grandfather having been Presbyterian ministers), he embodied the caricature of a Puritan divine. Those traits also made him a perfect Progressive.

Before becoming president of the United States, Wilson was a professor at Princeton University, later becoming its president. He also was elected governor of New Jersey. During his academic tenure, he wrote several influential books which set forth his criticisms of American constitutional structure. His proposed solutions cemented his bona fides as a Progressive.

Wilson was strongly influenced by 19th century German intellectual thought, especially Hegel’s views of the State as the evolutionary path of an Idea through history, and by contemporary adaptations of Darwinian theories to social science. Indeed, so enamored was Wilson of German philosophy and university research that his wife, Ellen, learned the language just to translate German works of political science for him.

Wilson enthusiastically embraced the nascent ideology of the State. He characterized that entity as organic and contrasted it with what he described as the mechanical nature of the Constitution with its structure of interacting and counterbalancing parts. As he wrote in Constitutional Government in 1908, “The trouble with [the Framers’ approach] is that government is not a machine, but a living thing. It falls, not under the theory of the universe, but under the theory of organic life. It is accountable to Darwin, not to Newton.”

The “organic” State tied to the people in some mystical union must not be shackled by a fusty piece of parchment with its artifice of checks and balances. An entirely new constitutional order must be created that reflects the inevitable ascendancy of the State in human affairs. If that was not a realistic option due to reactionary political forces or sentimental popular attachments, the parchment must be broadly amended. During Wilson’s first presidential term, constitutional amendments to authorize a federal income tax and to elect Senators by popular vote were approved.

Beyond formal amendment of the Constitution, the various components of the government had to be marshaled into the service of Progressivism. Thus, Congress must pass far-reaching laws that increase state power at the expense of laissez-faire individualism. The result was a series of federal regulatory laws in union-management affairs, antitrust, child labor, tax, and—through the creation of the Federal Reserve system—banking. That activism was replicated in many states. The era of big government had arrived.

As usual, the Supreme Court took longer. Though the Court upheld various particulars of Progressive legislation, the organic theory of the state was not embodied forthrightly in its decisions until the later New Deal years and the post-Second World War emergence of the “Living Constitution” jurisprudence. Adherents to the Progressive deification of the State, then and now, have sought to remake judicial doctrine by untethering it from formal constitutional structure in favor of ideological dogma. Their efforts have focused on an expansive interpretation of Congressional powers, disregard of the prohibition against excessive delegation of power to bureaucracies, and a transformation of the Equal Protection Clause into a contrivance for “positive” equality. On that last point, success has been slow in coming. But since every political entity necessarily has a constitution, for Progressives it is beyond cavil that their “organic state” requires a progressive living constitution, one that prioritizes social justice and secures equality of condition. Exempting, perhaps, the governing elite.

That left the Presidency. Wilson’s early work, Congressional Government from 1885, reflected his contempt for American separation of powers and urged constitutional change to a parliamentary-style system with centralized power and an expanded federal bureaucracy. He dismissed the president as a mere “clerk of the Congress.” Over the next two decades, his perceptions about the Presidency changed significantly. Wilson regarded the administrations of Grover Cleveland and Theodore Roosevelt as exemplary. His last major work, Constitutional Government, published in 1908, focused on the Presidency as the engine for change.

Wilson’s eventual views of the Presidency were thoroughly 20th century. He treated the formal constitutional powers of the office as minor matters and regarded its occupant as increasingly burdened by obligations as party leader and as executor of the laws and administrator of Congressional policies. That burden had become impossible for a single man, a refrain frequently heard before and since. This fact of political life would only become more pressing with the inevitable—and welcome—evolution to a more powerful and controlling State.

Therefore, a president will and must leave the performance of those duties increasingly in the hands of subordinates. The appointment of trusted officials was more important than the selection of wise men of different opinion to give him counsel, as George Washington did, or of leaders of prominent factions within the party coalition, as was the practice of, among others, Abraham Lincoln. Instead, as Wilson wrote, presidents must become “directors of affairs and leaders of the nation,—men of counsel and of the sort of action that makes for enlightenment.”

Theodore Roosevelt’s “bully pulpit” construct of the Presidency was the new model. The traditional chief executive dealt with the congressional chieftains to influence policy as it emerged within those chambers in response to the broadly-felt needs of the times. Instead, the modern president would bypass the ordinary channels of political power and appeal to the public to shape policy to his creative vision. Wilson wrote, “The President is at liberty, both in law and in conscience, to be as big a man as he can. His capacity will set the limit….” This Nietzschean conception of the Presidency as a vessel for its occupants to exercise their will to power is quintessentially fascist. The focus on the charismatic and messianic leader as the ideal of government and the vehicle for progress to a utopian just society is a hallmark of American progressivism to this day and has also characterized the more virulent forms of collectivism. There are telling appellations:  Il Duce Mussolini, Der Fuehrer Hitler, Vozhd Joe Stalin, El Líder Castro, and North Korea’s Kims (Great Leader, Dear Leader, and Respected Leader). All convey the same meaning. Personality cults inevitably accompany Progressive-style leaders.

Wilson’s descriptions of the Presidency and the reality of political practice had a core of truth, lest his prescriptions not be plausible. To get to those prescriptions, however, he set ablaze many constitutional straw men. Though he paid lip service to the Constitution’s framers’ sagacity, he understated their practical appreciation of the office. Alexander Hamilton wrote several Federalist Papers that extolled the need for energy and accountability in the Presidency which he argued were furthered by the Constitution’s structure of the unitary executive. Through his Pacificus Letters, Hamilton became the foundational advocate of a theory of broad implied executive authority on which later presidents relied, including Wilson’s model, Theodore Roosevelt. George Washington shaped the contours of the Executive Branch by his actions within the purposely ambiguous contours of presidential powers under the Constitution. There were serious debates in the Washington administration about the nature of the president’s cabinet and the constitutional relationship between the president and the officers, debates that were generally resolved in favor of presidential control over those officers.

Wilson decried what he saw as a lack of accountability in the Constitution’s formal separation of powers. Yet it was his system where the president is “above the fray,” while little-known and uncontrolled subordinates carry out all manner of critical policies without, allegedly, his awareness. Events over the past two years have amply demonstrated the flaws of rule by credentialed, but unaccountable “experts” at all levels of government. Their decrees, too often based on misunderstood or even fabricated “evidence” and produced in a closed culture implacably hostile to dissent, affected Americans in profound economic, psychological, and social ways. Long-cherished individual rights were brushed aside, selectively, by this pretended clerisy through appeals to the greater health of the society and the common good, appeals which were frequently shown not to affect the behavior of the elite elect. All the while, politicians sought to deflect responsibility onto those bureaucrats.

Herbert Croly was perhaps the most important intellectual of Progressivism, next to Wilson. That seems odd, given the tortuous language and convoluted emotive passages that characterize his work. The Promise of American Life, published in 1909, is Croly’s most significant contribution to public debate, one that supposedly so influenced Theodore Roosevelt it is said to have been the catalyst for Roosevelt’s return to politics as a third-party “Bull Moose” presidential candidate in the 1912 election. Whereas Wilson dealt with constitutional structure and politics, Croly focused on political economy.

In Promise, Croly described himself and his vision as Hamiltonian. But it painted as “Hamiltonian” something that Alexander Hamilton would have foresworn. Croly argued for organization of the economy through coordination among large nationalized corporations, powerful and exclusive labor unions, and a strong and activist central government. This was the classic corporatist model of “rationalizing” the economy. It embraced the essence of fascist political economy and, with some tinkering, of socialist and Progressive systems. Whereas Hamilton proposed to use government incentives to unleash the entrepreneurial and inventive spirit of Americans to create wealth which ultimately would benefit all, Croly wanted the national government to throttle such entrepreneurial opportunity in favor of large entities, enhance the powers of the few, and use public policy to legislate a welfare state for the poor. However, haphazard social welfare legislation would be inadequate. As noted, the program had to be comprehensive of the whole of society. Independent small businesses, as elements within traditional American republicanism, were the bane of Progressive true believers in mass organization. Theirs would be a coalition of the wealthy few, an administrative elite, the working class, and the mass of poor against the broad middle.

Another book, Progressive Democracy from 1914, extended Croly’s Progressive canon. It rested on the usual Progressive premises, such as the omnipotent, all-caring, and morally perfect Hegelian God-state that would be the inevitable evolutionary end of Progressive politics. It posited the notion—so common in Progressive and other leftist theory—of stages of human social and political development that have been left behind and whose outdated institutions are an impediment to ultimate progress. Hence, Croly insisted, the Constitution’s structure of representative government and separation and division of powers needed to be, and would be, changed. Unlike the societal realities of the late 18th century which had produced American republicanism in the form of representative government within a federal structure, “In the twentieth century, however, these practical conditions of political association have again changed, and have changed in a manner which enables the mass of the people to assume some immediate control of their political destinies.”

The new political mechanism was direct democracy, the most authentic expression of popular will. It was beloved of leftists of all stripes. At least in theory. However, Croly considered reforms such as the initiative, referendum, primaries, and popular election of Senators to be misdirected and inauthentic if they were used only to restrict government power and to correct government abuses. As such, they were still shackled by old conceptions about the primacy of individual rights and by the suspicion of powerful government that had characterized the earlier period of Jeffersonian republicanism. “If the active political responsibilities which it [direct democracy] grants to the electorate are redeemed in the negative and suspicious spirit which characterized the attitude of the American democracy towards its official organization during its long and barren alliance with legalism [the Constitution as a formal system of checks and balances that controls the actions of the political majority], direct democracy will merely become a source of additional confusion and disorganization.”

There were, then, bad and good direct democracy. The good form was one that produced the proper, Progressive social policy, and accepted the dominance of powerful state organs which could accomplish that policy: “Direct democracy…has little meaning except in a community which is resolutely pursuing a vigorous social program. It must become one of a group of political institutions, whose object is fundamentally to invigorate and socialize the action of American public opinion.” Note some key words: A political system must be measured by “meaning,” such as the quintessentially Progressive “Politics of Meaning,” long associated with manifestos of the American Left. “Vigor” and “action,” two words that were markers of Progressive ideology and rhetoric at the personal, as well as the political, level. Wilson, the two Roosevelts, and John and Robert Kennedy strove mightily to present themselves as embodying those very characteristics, often to hide physical limitations. Finally, “social” or “socialize,” as the antidote to the traditional American insistence on the rights of individuals that were derived from sources outside the State and which trumped the demands of the collective.

In that “good” form, popular participation was, in effect, a thermometer to measure the temperature of the public’s support for an activist political program. Croly advised, “A negative individualistic social policy implies a weak and irresponsible government. A positive comprehensive social policy implies a strong, efficient and responsible government….A social policy is concerned in the most intimate and comprehensive way with the lives of the people. In order to be successful, it must rest on the basis of abundant and cordial popular support.” Instead of a structure constrained by the text and the received traditions of fundamental law, government would be limited only by vague measures of its policies’ popularity.

Despite Croly’s perfunctory disclaimer, popular participation was to be little more than a plebiscite on actions to be taken by a legislature otherwise unrestrained by the formal structures of the “Law.” “The government must have the power to determine the Law instead of being circumscribed by the Law,” he wrote in Progressive Democracy. As Croly—and Wilson— recognized, legislatures would not be up to the task of supervising such an increasingly intrusive paternalistic State. Hence, a powerful administrative apparatus was required. That signature component of the modern regulatory state—the vast, unelected bureaucracy—was necessarily beyond the control of the people. True, it might be a dictatorship of the technocratic elite, but it would be a benevolent one, we are assured, always loyally and selflessly laboring for our weal.

But like H.G. Wells’ society of Eloi and Morlocks in The Time Machine, the Progressive state was not as benign as its propagandists depicted it on the surface. The Progressives had a strong Darwinian bent. If Woodrow Wilson identified the State as an organism governed by the biological laws of Darwin, those laws raised some uncomfortable topics. Evolution and change are the constants of such a system; evolution requires adaptation to change. But in the State, unlike nature, adaptation could not be left to chance but must be directed rationally. Where survival of the fittest was the rule, only the fittest could rule. That the government was not under more direct control of the people was due to what Croly euphemistically described as the small size of the fund of social reason.

In view of that scarcity of social reason, Croly explained, “[the] work of extracting the stores of reason from the bosom of society must be subordinated to the more fundamental object of augmenting the supply of social reason and improving its distribution.” This was a task critical to the success of government unconstrained by the old Constitutional structures. “The electorate must be required as the result of its own actual experience and unavoidable responsibilities to develop those very qualities of intelligence, character, faith and sympathy which are necessary for the success of the democratic experiment.”

While Croly proposed that education would provide the means of human progress and the nurturing of social reason among the mass of people, there were those who were unfit for such efforts. Croly, like Woodrow Wilson and unlike William Jennings Bryan, believed in the need for state regulation of marriage and reproduction to combat crime and insanity and to promote the propagation of the truly fittest. When he was governor of New Jersey, Wilson signed a law of just such tenor that targeted various “defectives” for sterilization. Therein is mirrored one of the traits commonly attributed to the progressive intellectual. He professes to idolize humanity and the principle of popular government, but he despises humans and distrusts individual autonomy and political choice.

Joerg W. Knipprath is an expert on constitutional law, and member of the Southwestern Law School faculty. Professor Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. He has also spoken on business law and contemporary constitutional issues before professional and community forums, and serves as a Constituting America Fellow.

 

Click here for American Exceptionalism Revealed 90-Day Study Schedule
Click here to receive our Daily 90-Day Study Essay emailed directly to your inbox

Guest Essayist: Andrew Langer


In the previous essay, the Stalinist era of Soviet history was juxtaposed against the concerns of the Founders as discussed in the Federalist Papers. In this essay, that same era is examined within the context of the United States Constitution as adopted and ratified, and to look at the “failures” of the Stalin regime vis a vis America’s system of constitutional governance.

But it might be a mistake to call Stalin’s reign “a failure,” per se. Certainly, it was a failure insofar as the adherence to democracy or the protection of individual rights. One can also say that aspects of Soviet policy as compared to the revolutionary goals of improving the lives of “the people” were abject failures.

But in terms of doing what Stalin and his comrades were intending to do regarding creating a state in which power was concentrated in the hands of a few? They were brutally successful at that. In fact, it was only Stalin’s death in 1953 at the age of 74 that brought an end to his proximate reign, and it was the chaotic aftermath in the wake of Stalin’s death (and the power struggle that ensued) that brought some reforms to the Soviet Union. It wasn’t any greater adherence to some kind of principle of individual rights and limited government.

Keeping in mind that the Soviet Union did have a series of “constitutions”—including one in 1924 and another in 1936, as Stalin had truly consolidated his power. While these constitutions claimed to guarantee some measure of rights (as well as outlining a series of social and economic entitlement programs), they left intact other political machinations guaranteeing one-party rule and the concentration of power in the hands of very few.

In fact, it was after the passage of the Soviet Constitution of 1936 that some of the bloodiest, most-horrifying years of Stalin’s reign began. The so-called Great Purge not only swept up millions of innocents, it also swept up many of the architects of the 1936 Constitution itself!

Two of the most-basic differences between our constitutional system and the Soviet system are the adherence to basic concepts of due process rights, as well as the assurance of open debate and the protection of dissenting views. The denial of both within the Soviet Union allowed for the government to use the military and secret police to brutally repress conflicting views as well as killing and imprisoning millions more in both secret prisons as well as a system of forced-labor prisons known as the “Gulag.”

The head of the secret police under Stalin, Lavrentiy Beria, was noted for saying, “Show me the man and I’ll show you the crime.”

In other words, we don’t need due process or a rule of law. If we want to arrest someone or otherwise suppress dissent, we can simply make them disappear by accusing them of a crime, and because we don’t need to actually prove that crime, they can be taken away.

It is worth noting that two American socialist activists, John Reed and Emma Goldman, both of whom were eager supporters of the 1917 Revolution (and were attempting to bring similar revolutionary fervor to the United States), became privately disillusioned with the direction of the post-Soviet era under first Lenin and then Stalin—most notably because of the lack of democracy in practice and the suppression of dissent.

Under the American system, power is diffused, checked and balanced.  Under the Soviet system, especially under Stalin, power is concentrated—and the politics of the CPSU (Communist Party Soviet Union) ran through every element of daily life, with the Politburo (a central committee of the highest-ranking members of “The Party”) making policy and dictating that policy through the ranks of the Soviet bureaucracy.

Setting aside the secret police, at the time known as the NKVD (and later the KGB), the politics of communism (and adherence to party doctrine) also played a role in military command.

Under our system, the military is meant to be entirely free from the political machinery of our system—our military personnel are supposed to advance on their own merit, the military is an instrument of policy, and the guidance of that policy is balanced between the legislative and executive branches. The President is Commander-in-Chief, but only Congress can declare war, for instance.

During the Soviet era, not only was the military largely under the direction of the Premier (the Soviet leader, also known as the General Secretary) and the Politburo, but each individual unit was given a “political officer,” known as a “Zampolit,” who would ensure that Marxist-Leninist dogma was injected into military affairs, as well as recommend advancement or punishment for military members depending on their adherence to that dogma.

It is also worth noting that the abuse of power by the NKVD and the interference by the Politburo in military affairs led to Field Marshal Gregoriy Zhukov’s support of Nikita Khrushchev in his bid for power following Stalin’s death, since Zhukov was deeply concerned for what might happen should Beria, the head of the secret police, gain greater power under Stalin’s successor, Georgy Malenkov.

In the end, it is not only our Constitution, but the perspective in how we approach government and governance in the United States, that fundamentally sets us apart from any communist or socialist system—whether under Stalin or Krushchev or Brezhnev, or in Maoist China or Castro’s Cuba or North Korea led by a Kim.

We approach governance from the perspective that rights are naturally occurring in man and that power flows from the citizenry to the government, whose powers are carefully enumerated and tightly constrained. These other systems believe that government grants rights to their citizens, and that absent action by that citizenry, it is assumed that the government retains all power to act.

There were no checks on power in Stalin’s USSR—millions died or suffered as a result of it.

Andrew Langer is President of the Institute for Liberty, as well as Chairman and Founder of the Institute for Regulatory Analysis and Engagement. IFL is a non-profit advocacy organization focused on advancing free-market and limited government principles into public policy at all levels. IRAE is a non-profit academic and activist organization whose mission is to examine regulations and regulatory proposals, assess their economic and societal impacts, and offer expert commentary in order to create better public policies. Andrew has been involved in free-market and limited-government causes for more than 25 years, has testified before Congress nearly two dozen times, spoken to audiences across the United States, and has taught at the collegiate level.

A globally-recognized expert on the impact of regulation on business, Andrew is regularly called on to offer innovative solutions to the challenges of squaring public policy priorities with the impact and efficacy of those policies, as well as their unintended consequences. Prior to becoming President of IFL and founding IRAE, he was the principal regulatory affairs lobbyist for the National Federation of Independent Business, the nation’s largest small business association. As President of the Institute for Liberty, he became recognized as an expert on the Constitution, especially issues surrounding private property rights, free speech, abuse of power, and the concentration of power in the federal executive branch.

Andrew has had an extensive career in media—having appeared on television programs around the world. From 2017 to 2021, he hosted a highly-rated weekly program on WBAL NewsRadio 1090 in Baltimore (as well as serving as their principal fill-in host from 2011 until 2021), and has filled in for both nationally-syndicated and satellite radio programs. He also created and hosted several different podcasts—currently hosting Andrew and Jerry Save The World, with long-time colleague, Jerry Rogers.

He holds a Master’s Degree in Public Administration from Troy University and his degree from William & Mary is in International Relations.

 

Click here for American Exceptionalism Revealed 90-Day Study Schedule
Click here to receive our Daily 90-Day Study Essay emailed directly to your inbox

Guest Essayist: Andrew Langer
Interior, Gulag Museum in Moscow, used during the Great Purge under Joseph Stalin’s reign killing millions of innocents.


The reign of Joseph Stalin as the leader of the Soviet Union from 1922 until his death in 1953 made real just about every fear the Federalists and Anti-federalists discussed regarding concentrated power and government run amok during the debates over the adoption and ratification of the United States Constitution.

Through the entirety of the Federalist Papers, Alexander Hamilton, James Madison, and John Jay were constantly debating the balancing of interests, and the push/pull between a central government strong enough to both defend the nation of several states and address the common needs of those states, yet not so powerful as to run roughshod over the rights of those states and the residents therein.

Interestingly enough, the fact that our Founders were able to so openly debate the nature of the early American experiments in governance is completely alien to what occurred in the post-revolutionary transition from the formerly tsarist Russia into the Soviet Union first under Vladimir Lenin and then under Stalin.

Unlike the open debates of our Founders, and the reliance on the consensus-building governance of the American political system (built, as it was, on the examples of the liberalized British system), when the Tsar was overthrown and the soviet government established in Russia, the Bolsheviks immediately set-out to remove or otherwise neutralize opposition voices and consolidate power—and did so using a combination of military power and adopted post-tsarist secret police that could use force and intimidation to back-up any effort at domination.

So while Jay, Madison, and Hamilton could agree and disagree with one another in very public discussions, and the three of them could have ongoing conversations regarding the elements of the Constitution with their allies and opponents, Stalin’s system left it up to a handful of men to, literally, dictate the course of the Soviet Union in the years (and then decades) after the Russian Revolution of 1917—and then support their decisions with either direct military force or the force of their secret police, the NKVD.

The post-Revolution Bolsheviks had outlawed alternative political parties (even alternative factions of socialism, like the “Mensheviks,” the other dominant socialist viewpoint in during the 1917 Revolution), the dissemination of information was through the central government, and a vibrant system of “informing” on ones fellow Soviet citizens was created, in which people could be arrested upon the scant denouncing of their neighbors—or because the denounced said or did something that the central government did not like.

In Federalist 46, Hamilton summed up the general fear of constitutional skeptics in the late 18th century:

“The only refuge left for those who prophesy the downfall of the State governments is the visionary supposition that the federal government may previously accumulate a military force for the projects of ambition… That the people and the States should, for a sufficient period of time, elect an uninterupted succession of men ready to betray both; that the traitors should, throughout this period, uniformly and systematically pursue some fixed plan for the extension of the military establishment; that the governments and the people of the States should silently and patiently behold the gathering storm, and continue to supply the materials, until it should be prepared to burst on their own heads, must appear to every one more like the incoherent dreams of a delirious jealousy, or the misjudged exaggerations of a counterfeit zeal, than like the sober apprehensions of genuine patriotism.”

Interestingly enough, Madison had answered his own question earlier in Federalist 46 when he wrote:

“The disquietude of the people; their repugnance and, perhaps, refusal to co-operate with the officers of the Union; the frowns of the executive magistracy of the State; the embarrassments created by legislative devices, which would often be added on such occasions, would oppose, in any State, difficulties not to be despised; would form, in a large State, very serious impediments; and where the sentiments of several adjoining States happened to be in unison, would present obstructions which the federal government would hardly be willing to encounter. But ambitious encroachments of the federal government, on the authority of the State governments, would not excite the opposition of a single State, or of a few States only. They would be signals of general alarm. Every government would espouse the common cause. A correspondence would be opened. Plans of resistance would be concerted.”

But for a nation in which power is concentrated in the hands of very few, where dissent is suppressed beyond the point of imprisonment, and where that power is undergirded with both direct military force and the anxiety produced by the specter of secret police, there is no opportunity for “plans of resistance” or any concerted correspondence.

Worse, “dissent” could take many forms—and not even have to be proved, in order for punishment to be meted out. Stalin used his military to massacre civilians and put political pressure on Soviet republics and non-republic satellite states. And between Stalin and the head of the NKVD (the Secret Police), Lavrentiy Beria, millions more were simply “disappeared.” Beria is famous for the quote, “Show me the man and I’ll show you the crime,” a statement that will be discussed in the essay on Stalin and the protections guaranteed in the U.S. Constitution.

The Founders were rightly skeptical of what could happen when government power was not hemmed in by lawful constraints—and what happens when people are not able to debate and exercise true dissent. The warnings debated in the Federalist Papers were made manifest in the brutality of the Soviet Union’s Stalinist era and, frankly, through the oppressions of Nikita Khrushchev and Leonid Brezhnev, and other socialist leaders.

Andrew Langer is President of the Institute for Liberty, as well as Chairman and Founder of the Institute for Regulatory Analysis and Engagement. IFL is a non-profit advocacy organization focused on advancing free-market and limited government principles into public policy at all levels. IRAE is a non-profit academic and activist organization whose mission is to examine regulations and regulatory proposals, assess their economic and societal impacts, and offer expert commentary in order to create better public policies. Andrew has been involved in free-market and limited-government causes for more than 25 years, has testified before Congress nearly two dozen times, spoken to audiences across the United States, and has taught at the collegiate level.

A globally-recognized expert on the impact of regulation on business, Andrew is regularly called on to offer innovative solutions to the challenges of squaring public policy priorities with the impact and efficacy of those policies, as well as their unintended consequences. Prior to becoming President of IFL and founding IRAE, he was the principal regulatory affairs lobbyist for the National Federation of Independent Business, the nation’s largest small business association. As President of the Institute for Liberty, he became recognized as an expert on the Constitution, especially issues surrounding private property rights, free speech, abuse of power, and the concentration of power in the federal executive branch.

Andrew has had an extensive career in media—having appeared on television programs around the world. From 2017 to 2021, he hosted a highly-rated weekly program on WBAL NewsRadio 1090 in Baltimore (as well as serving as their principal fill-in host from 2011 until 2021), and has filled in for both nationally-syndicated and satellite radio programs. He also created and hosted several different podcasts—currently hosting Andrew and Jerry Save The World, with long-time colleague, Jerry Rogers.

He holds a Master’s Degree in Public Administration from Troy University and his degree from William & Mary is in International Relations.

 

Click here for American Exceptionalism Revealed 90-Day Study Schedule
Click here to receive our Daily 90-Day Study Essay emailed directly to your inbox

Guest Essayist: J. Eric Wise


The Red Army from the time of its formation through its incarnation as the Soviet Army and to the time of its collapse was forever fighting wars. From 1917 to 1922 the Red Army fought numerous civil wars for Soviet dominance of Russia, as well as the Polish-Soviet War to mop up the residual Polish state following the First World War.

But by 1922, the Soviet communists realized that a large army taxed the ambitions of the new Soviet state and so reduced the Red Army to a standing army of 800,000.

Leader of the Soviet Union, Joseph Stalin, would take this small army and build it to a strength of 29 million at the end of the Second World War. This massive army would after the Second World War become the Soviet Army which would be reduced to a leaner 11 million man army.

As the burden of maintaining a large land army grew, the Soviet Army shrunk to between 2.8 and 5.3 million. The final collapse of the Soviet Union occurred when the cost to the people of the Soviet Union of maintaining and equipping this army left them without consumer goods and in some cases necessities.

What is the key lesson of Stalin’s expansion of the military?

The first lesson, one supposes, is that war is not merely an instrument of the state but an instrument of the military. Stalin’s Soviet Union was perpetually at war. The Red Army battled Ukrainian insurgents, and was involved in the Spanish Civil War, the war in China, and fought with Japan. Before joining the Allies in the Second World War, the Soviet Army invaded Poland, partitioning it with Germany, and invaded Finland, with worse than mixed results. By the time of the German invasion of Operation Barbarossa, the Red Army was 6,000,000 men or more of whom a majority of whom were captured or killed by the invading army. The Red Army and then the Soviet Army served as a base of power for Soviet tyranny. And war was a means for the Red Army and the Soviet Army to demonstrate their importance to tyrannical power.

What can we as Americans learn from it?

Following the First World War, the United States promptly de-mobilized. The material prepared for war was scrapped and the United States Army was quickly reduced to a small corps of officers and enlisted men around which a larger army of citizen soldiers could later be built.

When the Second World War arrived, on December 7, 1941, the United States Armed forces numbered about 1.8 million. Four years later, in at the end of the war in 1945, the United States armed forces numbered approximately 12 million.

Following the Second World War, the United States armed forces were again demobilized, and by 1950 the core strength of the United States Army was about 600,000 men. With mobilization for the Korean War and the Vietnam War the armed forces of the United States numbered between 2.6 and 3.5 million. And following the Cold War the United States armed forces came down in strength to about 1.5 million men, the level it has remained for almost three decades.

President Dwight Eisenhower warned in his farewell address of a growing “Military-Industrial Complex” which threatened the liberties and prosperity of Americans. He meant that the military and the industries that supplied it had become their own interest group in American politics. The military and the industries supporting it promoted policies, and yes, wars, which served the interest of the military and the interests of power.

Abraham Lincoln, in his Lyceum Address, noted that “We find ourselves in the peaceful possession, of the fairest portion of the earth, as regards extent of territory…” He meant, among other things, that the United States is blessed to have a territory protected by two oceans and to have very little in the way of neighboring military threats.

It was this territorial advantage, as was noted in Federalist 29, which allowed the United States unlike European powers, to dispense with standing armies.

It is important to take pride in the patriots that serve our country in uniform. It is equally important to not conflate that pride with an empty nationalism that needlessly feeds a large military, a lesson Joseph Stalin teaches us.

Eric Wise is a partner in the law firm of Alston & Bird.

 

 

Click here for American Exceptionalism Revealed 90-Day Study Schedule
Click here to receive our Daily 90-Day Study Essay emailed directly to your inbox

Guest Essayist: Stephen Tootle


World War I, known as the “Great War” by contemporaries, tested whether a Constitution written in the 18th century could handle problems presented by the 20th. President Woodrow Wilson found himself frustrated by the constraints put upon him by the Founders—just as the Founders intended. By limiting the powers of the executive branch and creating structures rooted in pluralism, the foundational wisdom baked into the United States Constitution limited President Woodrow Wilson’s attempts to undermine and undo our political, diplomatic, and constitutional traditions. Although the executive branch has broad authority in foreign policy and during wartime, its powers are not limitless. Those constitutional limits became even more important when a war was global in scope and America had a President who resisted them.

President Wilson came into the presidency hostile to the idea of enacting the Constitution as written or intended.[1] Unlike any previous President (save perhaps Andrew Jackson when grumpy), Wilson believed that the only limit on presidential power was “his capacity” and that his control of foreign policy was “absolute.”[2] After his election in 1912, he could test those theories in earnest. When the Great War began in 1914, Wilson thought he had discovered a way to use the war to transform the world for the better.

According to Wilson, all wars could be prevented with a world association to protect borders, ensure government control of arms manufacturing, and prevent aggressive war for territorial gain.[3] Believing that he could create world peace, Wilson stretched his constitutional wartime powers to their limits. His administration imprisoned political opponents, censored authors, closed newspapers, commandeered whole sectors of the industrial and agricultural economy, and planned for a future peace agreement at odds with our history, politics, culture, and Constitution.

Wilson’s plan (according to him) required the mandate of the American people in the 1918 congressional elections. With that in mind, he explicitly attacked his opponents and asked Americans to “sustain” him and “say so in a way which it will not be possible to misunderstand.”[4] They answered, but their answer did not sustain him. Republicans took both houses of congress.

Undaunted by this rejection, Wilson negotiated the Treaty of Versailles and went to the Senate for its ratification. Congressional hearings revealed the unworkability and radicalism of the treaty. Americans had some common-sense questions about ditching their traditions. Would Americans be obligated to automatically fight and die in wars anywhere and everywhere to protect any border? Would the people and Congress no longer have a say in the declaration of war? Would foreign nations have sovereign authority over American foreign policy? Could foreign nations preclude the United States from maintaining military preparedness or anticipating threats? Would an international body interfere with the individual rights of Americans? As in any debate, good points mixed with frivolous and absurd ones as the politicians with varying interests delayed ratification. The treaty may have been ratified if Wilson had consented to protecting the Constitution, but he would not.  Wilson had said he would “consent to nothing” and that “the Senate must take its medicine.”[5] But that was simply not the case. Under the Constitution, the Senate would have its say.

President Wilson could command armies and negotiate the peace treaty, but the Constitution and its adherents ensured that he could not rule as a king or a dictator. The legislature—reflecting the conflicting interests and passions of the American people—used their constitutional powers to prevent Wilson from enacting his plans. In his last days in office Wilson lamented, “Men thought I had all the power. Would to God I had such power.”[6]

Modern readers may recoil at the abuses of the Wilson administration during the war, but someone with a broader global perspective should understand that the proper question should be, “Why were they not worse?” The pluralism inherent in our Constitution does not prevent evil from existing in the world—doing so would require

abolishing freedom– but it does check the spread of evils. Would-be dictators claiming the righteousness of their causes will always claim it is worth it to sacrifice our commitment to pluralism in the service of a grand solution to a grand problem. Our Founders understood that perfection in governance is an impossibility, but as Wilson’s example shows, even the would-be dictators can have their abuses limited. Despite Wilson’s machinations to the contrary, the Constitution limited his ambitions and left the United States standing firmly on its old foundation while the Old World Order collapsed.

Stephen Tootle is a Professor of History at the College of the Sequoias in Visalia, California and Honored Visiting Graduate Faculty in History and Government at Ashland University in Ashland, Ohio. His writings have appeared in National Review, Presidential Studies Quarterly, The Claremont Review of Books, The Journal of the Gilded Age and Progressive Era, and other publications. He gives talks on politics and political history for the Ashbrook Center and the Bill of Rights Institute and is the co-host of The Paper Trail Podcast, a weekly public affairs podcast published by the Sun-Gazette.

[1] https://teachingamericanhistory.org/document/the-new-freedom/

[2] https://nationalsecurity.gmu.edu/wp-content/uploads/2019/03/Constitutional-Government-Chapter-III_-The-President-of-the-United-States.pdf

[3] Walter McDougall, Promised Land, Crusader State: The American Encounter with the World Since 1776, (Boston: Houghton Mifflin Company, 1997), 132.

[4] Woodrow Wilson, in John Morton Blum, Woodrow Wilson and the Politics of Morality, (Boston: Little, Brown and Company, 1956), 154-155.

[5] McDougall, 142.

[6] McDougall, 145.

 

Click here for American Exceptionalism Revealed 90-Day Study Schedule
Click here to receive our Daily 90-Day Study Essay emailed directly to your inbox

Guest Essayist: Thomas Bruscino


Federalist Papers 6 and 7 are at first glance an odd place to go when it comes to explaining the onset of World War I. Their topic is the threat of internal war among the states absent the adoption of the unified federal republic in the Constitution. But the fundamental principles expressed, especially that the “causes of hostility among nations are innumerable,” will resonate with generations of World War I students who have tried to catalogue the many causes of the Great War.

Publius’s point is that independent states will disagree about much and eventually fight over something. That was especially true in the semi-united states, with their close proximity to one another, the unclaimed and disputed lands to the west, their uneven economic power, and their shared and unshared debts. What is worse, in order to get an advantage in these disagreements, the states might enter into smaller alliances with each other or with European powers, thus becoming “prey to the artifices and machinations of powers equally the enemies of them all.”

Even the broadly democratic and commercial nature of the states would not help, despite the claims of “visionary or designing men, who stand ready to advocate the paradox of perpetual peace between the States, though dismembered and alienated from each other. The genius of republics (say they) is pacific; the spirit of commerce has a tendency to soften the manners of men, and to extinguish those inflammable humors which have so often kindled into wars. Commercial republics, like ours, will never be disposed to waste themselves in ruinous contentions with each other. They will be governed by mutual interest, and will cultivate a spirit of mutual amity and concord.”

If true, asserts Publius, then that should be true of all states, not just republics. But it wasn’t true. “Has it not, on the contrary, invariably been found that momentary passions, and immediate interest, have a more active and imperious control over human conduct than general or remote considerations of policy, utility or justice?”

There they are in Federalists 6 and 7, the many causes of the Great War laid out in principle: security and proximity, economic competition, domestic politics, imperial rivalries, confusing alliance politics, and honor and passion (in monarchies and democracies alike). Publius even anticipated and rejected the arguments of people like Ivan Bloch and Norman Angell that rational calculations about the destructiveness of warfare, especially in the interconnected modern economic world, would or should forestall war.

Given these great truths, Publius argued that the best hope for stopping war among the American states was to unite them under the proposed federal constitution. It did not always work—rebels literally drew states into a war against the nation. But it mostly worked. The overwhelming majority of the disputes among American states have not led to war.

Which leads to another question: was the proposed solution viable for the rest of the world’s nations? Did they just need to be gathered together in some sort of “Confederative Republic” to ensure peace?

In principle, maybe, and the principle is as far as Publius goes for the wider world. The Federalist Papers focused on the principles behind the best government for the United States, and on this issue they weren’t even sure the federal republic would work, let alone for the far more divided wider world. The Constitutional system Publius proposed was exceedingly fragile. That is why the principles elucidated in the rest of the Federalist Papers went far beyond the causes of war between states.

Perhaps that truth best resolves the seeming paradox of how Woodrow Wilson, an explicit critic of the Constitutional system, came to advocate for a seemingly Publius-like worldwide “Confederative Republic” in the League of Nations. Wilson wanted lasting peace among nations, and he believed that it was only possible if nations gathered together under a cooperative worldwide government of sorts. On its face, it appears that Wilson agreed with the principles of the Federalist Papers, but only on this narrow issue. But the Founders believed that the American Constitutional Republic only had a chance of preserving peace among the states if all of the principles undergirding it, those expressed across the Federalist Papers, remained in place.

Which brings us to Federalists 74 and 75, on the treaty making power of the president under the Constitution. For reasons explained in those documents, the executive needed a strong role in making treaties. As is often the case in the Federalist Papers, Publius argued for more expansive federal, and in this case, executive, power. But that was only because the countering argument gave exclusive power to the legislature. Publius never imagined that treaty making, or any other power, would go exclusively to the executive. There must be balance, or the whole fragile experiment would collapse.

This balancing principle, so essential to the Federalist Papers and the Constitution, Wilson could never abide. He wanted the power for himself. In this instance above all others, his reach exceeded his grasp. The Senate did not approve his treaty. The United States never entered the League.

The American decision to reject the League has been treated as a missed opportunity to preserve the fragile peace earned at Versailles. But Wilson was the master of his vision’s undoing, precisely because in envisioning the League he rejected the principles of the Federalist Papers. His League was not a balanced constitutional republic, but rather an oligarchy with the trappings of democracy, requiring the enlightened leadership of a few great men. First among those men, of course, would be Woodrow Wilson himself.

The League of Nations never had a chance to maintain peace, not because the United States foolishly rejected Wilson’s new utopian vision, but because the balanced American constitutional system saw it for what it was: an unbalanced system simultaneously so offensive to sovereign states and utterly toothless as to magnify all the worst rivalries among nations. It was the Old World Order made worse, with monarchies replaced by totalitarian dictatorships. Publius, in all of the Federalist Papers, knew better than to try that. Would that Woodrow Wilson have listened.

Thomas Bruscino is Associate Professor of History in the Department of Military Strategy, Planning, and Operations at the United States Army War College. He holds a Ph.D. in military history from Ohio University and has been a historian at the US Army Center of Military History in Washington, DC and the US Army Combat Studies Institute at Fort Leavenworth, and a professor at the US Army School of Advanced Military Studies. He is the author of A Nation Forged in War: How World War II Taught Americans to Get Along(University of Tennessee Press, 2010), and Out of Bounds: Transnational Sanctuary in Irregular Warfare (CSI Press, 2006), and numerous book chapters. His writings have appeared in the Claremont Review of Books, Army History, The New Criterion, Military Review, The Journal of Military History, White House Studies, War & Society, War in History, The Journal of America’s Military Past, Infinity Journal, Doublethink, Reviews in American History, Joint Force Quarterly, and Parameters.

The views and opinions presented are those of the authors and do not necessarily represent those of the U.S. Army War College, the U.S. Army, or the Department of Defense.

 

Click here for American Exceptionalism Revealed 90-Day Study Schedule
Click here to receive our Daily 90-Day Study Essay emailed directly to your inbox

Guest Essayist: Joerg Knipprath
Domenica del Corriere, Italian newspaper, drawing by Achille Beltrame depicting Gavrilo Princip assassination of Archduke Franz Ferdinand of Austria & his wife Sofie, in Sarajevo, Bosnia, June 28, 1914.


Supporters of the proposed United States Constitution of 1787 frequently warned that there was no mechanism under the Articles of Confederation to prevent what they saw as the inevitable commercial rivalries between the states from escalating into armed conflict. Such rivalries had begun to appear through protectionist trade laws enacted by various states. Another event was the dispute between Virginia and Maryland over fishing and navigation in Chesapeake Bay and the Potomac River. The end, the Federalists charged, would surely be the dissolution of the union into some number of quarreling confederations.

The Anti-federalists had several responses. First, Number IX of the Articles authorized Congress, on petition by any state, to provide for the appointment of a court to resolve any conflict between that state and another. Second, they pointed to the Mount Vernon Conference of 1785 which had settled those very divisive claims between Virginia and Maryland. Third, they declared that it was fanciful to claim that republics, especially those with commercial relations as close as those within the Confederation, would go to war with each other. The history of republics wagered against such eventualities, they asserted. As William Grayson, a moderate opponent of the Constitution, put forth at length before the Virginia ratifying convention, the states were bound by mutually reinforcing commercial bonds and interests. He sarcastically described the Federalists’ panicky and hyperbolic claims as predicting that Pennsylvania and Maryland would attack like Goths and Vandals of old, and that “the Carolinians, from the south, (mounted on alligators, I presume), are to come and destroy our cornfields, and eat up our little children!” Such specters were “ludicrous in the extreme.” Others repeated Grayson’s contentions even more forcefully, often combined with sneering attacks on the writers of The Federalist.

Alexander Hamilton, among others, rejected Grayson’s dismissal of the danger. In essay No. 6 of The Federalist, he asserted that immediate national interests, including economic advantage, are more likely to precipitate war than more general and remote objects, such as justice or dominion. He asked rhetorically,

“Have republics in practice been less addicted to war than monarchies?…Are not popular assemblies frequently subject to the impulses of rage , resentment, jealousy, avarice, and of other irregular and violent propensities?…Has commerce hitherto done any thing more than change the objects of war? Is not the love of wealth as domineering and enterprising a passion as that of power and glory? Have there not been as many wars founded upon commercial motives, since that has become the prevailing system of nations, as were before occasioned by the cupidity of territory or dominion?”

It was as to these questions that Hamilton invoked the guide of experience for answers.

That experience he found in the history of Sparta, Athens, Rome, and Carthage. All of them he classified as republics, the last two as commercial republics. He detailed the numerous ruinous wars in which they engaged. Moving forward in time, he then indicted the commercial republic of Venice for its wars in Italy and the 17th-century commercial Dutch Republic for its wars with England and France. Britain came in for scorn as particularly bellicose for commercial advantage. Worse yet, Hamilton charged, the king was at times dragged into wars he did not want, by “the cries of the nation and importunities of their representatives,” so that there have been “almost as many popular as royal wars.” He singled out wars for commercial advantage between Britain and France and Britain and Spain. One of those wars between Britain and France overthrew a network of alliances which had been made two decades earlier. He acidly asked, “Is it not time to awake from the deceitful dream of a golden age, and to adopt as a practical maxim for the direction of our political conduct, that we, as well as the other inhabitants of the globe, are yet remote from the happy empire of perfect wisdom and perfect virtue?”

In addition to commercial incentives for war, Hamilton pointed to personal motives of rulers and other prominent individuals, or to intrigues hatched by influential advisers, as prompting wars between republics. Thus he blamed the Peloponnesian War, so disastrous to Athens, on the personal motives of the great statesman Pericles. England’s ill-advised war with France Hamilton assigned to the machinations of Henry VIII’s chief minister, Cardinal Wolsey, and his pursuit of political influence.

Whatever the merits of Hamilton’s predictably slanted analysis of specific historical events, his message was that political theory disproved by experience is not a sound basis for public policy. A more recent scenario which fit his skepticism about pacific republics was the Great War from 1914 to 1918, which led to the collapse of the 19th-century European political order and to revolutionary political and social change. The antagonists were the Central Powers of Germany, Austria-Hungary, and Ottoman Turkey against the Triple Entente of Britain, France, and Russia. The latter group was eventually joined by Italy, Japan, and the United States. Of the major participants, Germany, Britain, France, and the United States were commercial and industrial powerhouses. They were also outright republics or had sufficient political power vested in parliamentary bodies to qualify as quasi-republican constitutional monarchies. Each also had substantial overseas territories, Britain by far the most. Of the rest, Russia and Japan were rising industrial and commercial nations. In particular, Germany and Britain had considerable commercial interaction, but it likely was exactly that commercial and colonial competition which the British saw as a threat. The prewar German naval buildup did nothing to calm British nerves.

There was also a complicated system of alliances which emerged shortly before the war. This reshuffling of international arrangements changed the dynamics of the relatively stable post-Napoleonic international order in Europe which had even survived disruptive processes of unification in Germany and Italy and disunion in the old Austrian Empire. True, there had been revolutionary tremors and limited wars, such as between Prussia and Denmark, and Prussia and Austria, and the Franco-Prussian War of 1870-71. Skillful diplomacy, in particular by the German Chancellor Otto von Bismarck, had prevented any conflict of an existential nature from arising. Bismarck had isolated France after 1871 through alliances with Russia, Austria-Hungary, and Italy, first through the Three Emperors’ League, and then through the Triple Alliance of 1882 and the Reinsurance Treaty of 1887. Relations with Britain were preserved through family relationships and Britain’s preoccupation with her empire overseas. He had also smoothed frictions between the rival empires, Russia and Austria-Hungary, through the Congress of Berlin in 1878, and among various colonial powers through a conference in the same city in 1884.

Even after Bismarck was forced out of office, it appeared that strengthened international legal norms would prevent wars. International arbitrations settled disputes. Two Hague Conventions, the London Naval Conference of 1909, and the London Conference of 1912 convinced “the right kinds” of Europeans that large-scale war was anachronistic. The foreign offices of the various governments, staffed with forward-looking and educated internationalists, surely would extend the great-power stability of the 19th century’s Concert of Europe. Ignored was that these multinational conferences and conventions left some number of participants dissatisfied and nursing grudges. This was particularly true for the Balkan countries. While trying to establish their independence from the crumbling Ottoman Empire, they warred with the Turks, the Austro-Hungarians, and each other and resented their fates being controlled by larger powers. Over time, these perceived affronts to national honor during a time of heightened national consciousness overrode the rational self-interest served by commercial considerations. Moreover, various treaties and diplomatic agreements overlapped and indeed conflicted with each other. Alliances increasingly shifted around, which begot international uncertainty during an age of domestic demographic changes, increasing political militancy, and unequal industrial and technological prowess.

This new system of alliances had another potentially destabilizing element. It allowed the relatively weaker participants to act like big players on the international stage, counting on their more powerful allies to back them up. Instead, the bravado and exaggerated sense of national honor of less important states dragged the major powers into a disastrous conflict. Everything changed when a Bosnian Serb nationalist, supported by secret nationalist societies and Serbian military intelligence, assassinated the reform-minded presumptive heir to the Austrian throne, Archduke Franz Ferdinand, and his wife in Sarajevo, Bosnia, on June 28, 1914.

After some delay, during which it was hoped that the assassination might become just another deplorable act that would result in an appropriate punishment for the captured perpetrators, the Austrians responded. Having received some halting assurances from the German government that they would back Austria-Hungary’s response to Serbia, the Austrians sent an ultimatum to the Serbs. Serbia only partially accepted the Austrian demands, mobilized its army, and briefly sent troops into Austro-Hungarian territory. In quick response, Austria began partial mobilization of its army and, on July 28, 1914, declared war on Serbia.

At this stage, the conflict might yet have become another limited skirmish. But the Russian government, some of whose ministers had been informed of the plot ahead of time and whose military intelligence likely helped the plotters, had promised the Serbs that Russia would come to Serbia’s aid against any attack by Austria-Hungary. When Austria-Hungary began partial mobilization, Russia within two days ordered full mobilization of its forces. Fearing the large number of Russian troops, Austria-Hungary in turn mobilized fully. Germany, coming to her ally’s assistance, did likewise on July 31, 1914. At the same time, Germany issued a demand of neutrality to Russia. When Russia failed to acquiesce, a state of war existed on August 1. France, pursuant to a treaty with Russia from 1892, had rejected German demands for neutrality and had ordered a general mobilization the previous day. On August 3, 1914, Germany declared war on France. Britain, pursuant to her treaty obligations to France under the Triple Entente of 1907, declared war on Germany on August 5, 1914, after the latter ignored Britain’s demands for withdrawal from occupied Belgium. Italy, as was her wont during 20th-century wars, initially refused to stand by her treaty obligations to Germany and Austria-Hungary and eventually switched sides to the Entente.

The war took on a dynamic of its own. Occasional peace feelers went nowhere, in part because of objections by military leaders. There was, however, another equally significant hurdle, namely, political opposition based on the respective publics’ sentiments that their sacrifices demanded something more than a muddled armistice. It must be remembered that the war initially was very popular and welcomed with an almost giddy celebration of patriotic zeal by the citizenry of the combatants. Hamilton’s observation about monarchs having “continued wars, contrary to their inclinations, and sometimes contrary to the real interests of the state” due to public pressure, was being realized.

The Great War, infelicitously dubbed “the war to end all wars,” ended in the collapse of the Ottoman, Russian, German, and Austro-Hungarian monarchies. It also severely damaged the British and French empires around the world. The revolutionary chaos it unleashed and the national resentments its end ignited soon produced totalitarian movements and another world war. The tens of millions killed in those wars and the even higher number murdered by those ideological totalitarian regimes during the 20th century are a grisly monument to man’s potential to do evil, often cheerfully. The war should have put paid to the conceit that the world of human self-interest and passion can be readily subordinated to a legal artifice designed by a cadre of internationalists. Such idealism sounds marvelous in a university faculty lounge or in a graduate seminar in international relations, but, as Margaret Thatcher observed, “The facts of life are conservative.”

As fundamental challenges to the post-World War II United States-led international order have arisen over the past two decades, much debate has erupted over what system will replace it. The current conflict in Europe has once again tested the notion that commercial relations will make war obsolete. Russia has been dissuaded neither by Western economic pressures and commercial ostracism nor the military aid by NATO to Ukraine from taking a course of action which her government and people see, rightly or wrongly, as important to their national identity. One hopes that these broader fundamental geopolitical changes, such as the apparent emergence of a multi-polar international order, do not lead to the type of destruction World War I caused a century ago. But such hopes must rest on diplomacy based on experience, not on smug nostrums about pacific republics or the bonds of commerce.

Joerg W. Knipprath is an expert on constitutional law, and member of the Southwestern Law School faculty. Professor Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. He has also spoken on business law and contemporary constitutional issues before professional and community forums, and serves as a Constituting America Fellow.

 

Click here for American Exceptionalism Revealed 90-Day Study Schedule
Click here to receive our Daily 90-Day Study Essay emailed directly to your inbox

Guest Essayist: Samuel Postell


The United States Constitution created many precautions against disunion and faction, but did not provide a failsafe solution; throughout the antebellum period statesmanship, compromise, and institutional development secured union until slavery and secession shattered the union.

As was argued in the last essay, the framers embraced the principle of union and framed a representative system to combat faction and disunion. As the Anti-federalists became increasingly weak after the ratification of the Constitution, Washington’s administration pursued policies to bolster union.

The Constitution created institutions meant to draw the country together and to prevent factions from controlling governmental power as was done under the Articles of Confederation. Publius argued that the Constitution embraced a number of improvements from modern political science to perfect republican government and cement union. The tools from modern political science were enumerated in Federalist 9:

a. The regular distribution of power into distinct departments.

b. the introduction of legislative balances and checks.

c. the institution of courts composed of judges holding their offices during good behavior.

d. the representation of the people in the legislature by deputies of their own election.

e. the ENLARGEMENT of the ORBIT within which such systems are to revolve, either in respect to the dimensions of a single State or to the consolidation of several smaller States into one great Confederacy.

However, Publius argued that there were further Constitutional precautions to retain the “excellencies of republican government” and “lessen or avoid” its imperfections. Throughout The Federalist, Publius explains additional precautions woven into the constitutional structure. He points to “auxiliary precautions” to act as a sort of safety net to ensure that the violence of faction is limited if it penetrates any branch of the federal government. The term “auxiliary precautions” echoes an earlier formulation in James Madison’s essay Vices of our Political System written at the behest of George Washington before the Federal Convention. In that essay, Madison argues that the Articles allowed minority factions to overrun the state governments. The essay made the distinction between the great desideratum[1] (creating a sovereign neutral and powerful enough to stop injustice without becoming tyrannical) and the auxiliary desideratum (getting the noblest characters to be elected, rule, and act according to proper motives). Thus, the most important object of the Constitution is the creation of an impartial and limited federal government to secure rights, and a secondary object is to ensure that the system is administered by virtuous citizens. Although Madison argued that creating a limited impartial government was fundamental, the framers believed that no free government could be maintained without proper administration from good rulers. The auxiliary precautions of the Constitution attempt to mitigate the harm that a faction might inflict if it gains power.

As was argued in the last essay, an important aspect of securing an impartial government is distributing and maintaining the partitions of power, which requires that weak branches be fortified and strong branches be weakened. When Publius considers the branch that most needs fortified against, he settles upon the legislative because it was often the legislatures that dominated the state governments under the Articles. In Federalist 48, he arrives at the conclusion that “in a representative republic, where the executive magistracy is carefully limited both in the extent and duration of its power; and where the legislative power is exercised by an assembly, which is inspired by a supposed influence over the people with an intrepid confidence in its own strength; which is sufficiently numerous to feel all the passions which actuate a multitude; yet not so numerous as to be incapable of pursuing the objects of its passions, by means which reason prescribes; it is against the enterprising ambition of this department, that the people ought to indulge all their jealousy and exhaust all their precautions.” Notice the similarity between Publius’ description of a legislature in Federalist 48 and a faction in Federalist 10. A legislature has a “supposed influence over the people,” it is a joint assembly which gives it the convenience of “concert,” it is numerous and can become impassioned through proceedings, yet it is small enough to make plans to “approach its passion.” In other words, the legislature gives a faction the power to exact its designs if it can properly organize itself. Publius therefore sought to limit it with auxiliary precautions such as a bicameral house with short terms, staggered elections, and two relatively large bodies. Note that Publius’ assessment is almost the opposite of Alexis de Tocqueville’s, who fears a soft despot seizing executive power and capitalizing from the lack of civic virtue among the people.

Despite Publius’ fears about the legislature, throughout Washington’s first term it became clear that the legislature was too weak to organize itself and pursue an agenda; instead of driving legislation, it looked to the president. For instance, in 1791 Congress called upon Secretary of Treasury Alexander Hamilton to help frame economic legislation. The House spent several days debating the propriety of considering Hamilton’s economic plans but did not bother drafting or proposing any of its own. The numerous House of Representatives was so unorganized and heterogeneous that it was not capable of creating any bills to put on the floor for a vote. Perhaps Publius underestimated the natural strength of the legislature in large republics. Did he not understand the distinction between this federal legislature set over a large sphere and encompassing a variety of interests and the state legislatures encompassing small territories with homogenous interests under the Articles?

By Thomas Jefferson’s presidency the congress was no less dysfunctional. It was consensus that Congress was weak and it looked to the presidency or the cabinet to drive federal policy. How different was this arrangement from the oligarchies in the state legislatures Madison criticized under the Articles? How much safer were minority rights from factions under this Constitution where the executive wielded such power?

Why was the Congress so weak? President Jefferson noted that representatives “are not yet sufficiently aware of the necessity of accommodation and mutual sacrifice of opinion for conducting a numerous assembly.” An anecdote puts Jefferson’s criticism a bit more sharply: after Jefferson’s message in December of 1805 was referred to the committee of the whole, it took almost a full session to determine a single resolution. After the message was referred to the Committee of the Whole, a section on harbor defense was approved and turned to committee. The Committee on Defense determined measures, and then on January 23 the report was taken up by the Committee of the Whole. The Committee on Defense decided on a sum for harbor defense, the Committee of the Whole disagreed, then appointed a committee of two to call upon the president for more information. In February the discussion was resumed. The House passed two resolutions: one sum for harbors and one sum for gunboats. A committee was then appointed to draft a bill in accord with these resolutions. On April 15, the committee began its debate on the bill to appropriate the money for harbor defense. The process in 1805 led four different committees to discuss two resolutions for defense over the course of five months: and that was just one plank of a bill, considering one part of the president’s annual message, in just the House of Representatives! James Sterling Young notes that the biggest problem was that “Any legislator had the privilege of bringing forward, at any moment, such measures as suit his fancy; and any other legislator could postpone action on them indefinitely by the simple expedient of talking.”

In addition to institutional problems, the representatives lacked the revolutionary unity common at the time of the Founding. One representative noted, “The more I know of [two senators] the more I am impressed with the idea how unsuited they are ever to co-operate, never were two substances more completely adapted to make each other explode.” On one hand a New England representative claimed of his Southern colleagues that they were “accustomed to speak in the tone of masters” and that the Westerners had “a license of tongue incident to a wild and uncultivated state of society. With men of such states of mind and temperament, men educated in New England could have little pleasure in intercourse, less in controversy, and of course no sympathy.” A Southern representative remarked of his New England colleagues that “not one possesses the slightest tie of common interest or of common feeling with us.” In addition to feelings of discord, there were physical altercations brought about by the pains of living in common boarding houses. An incident is recorded in Miss Shields’ house when John Randolph, “pouring out a glass of wine, dashed it in [Rep. Willis] Alston’s face. Alston sent a decanter at his head in return, and these and similar missiles continued to fly to and fro, until there was much destruction of glassware.”

How were we to call ourselves a republic if the representative branch could not govern themselves at their own tables, let alone within the chambers of Congress? In Publius’ lifetime as in our own, Congress needed to develop institutional tools to overcome its weakness and become a functional branch of government. This was necessary if the ambition of the legislature was to become sufficient to check the ambition of the executive branch and preserve our republican form of government.

Throughout the Antebellum Period, Congress developed institutional tools which allowed it to enact legislation without relying solely on the executive branch for direction. The most important institutional changes from the American Revolution through the Antebellum Period were rules, committees, coalitions, compromise, and statesmanship through oratory. Although I will not have the length to discuss each development in depth, I will cover some of the most important developments in Congress throughout the Antebellum period.

Henry Clay was the most seminal figure in developing the institutional reforms which allowed Congress to assume the role of legislative leader. On November 4, 1811, Clay was elected Speaker of the House on his first day as a member and on the first ballot. He won seventy-five votes, while William Bibb won thirty-eight, and Nathaniel Macon won three. Mary Parker Follett remarks that “Clay was elected more than any other Speaker as leader of the House. Never before and only once since has a member been distinguished with the honor of an election to the chair upon his first appearance in the House.” The caucus that met before electing Clay Speaker was clear about its intentions. One of Clay’s partisans asserted that the House was in need of a Speaker who would “bridle” John Randolph. Another member said that “he (Randolph) disregards all rules.” Another man asserted that the Speaker “must be a man who can meet John Randolph on the floor or on the field, for he may have to do both.” Clay would eventually do both. One of Randolph’s favorite tactics was to bring his hunting dogs to the chamber where he would use them to intimidate other members and cause disruptions when proceedings were not to his liking. One of Clay’s very first acts as Speaker was to institute a rule barring animals from the chamber during business. In 1826 the two men dueled after Randolph insulted Clay, but both missed their marks, and unhurt met each other halfway to shake hands (something that the two could never manage to do politically).

Clay’s early rules were a sign of his prerogative as legislative leader: he believed that the majority in Congress, elected by a majority of the people, should be equipped with the tools to govern. This principle animated him throughout his congressional career, but also required that he attain more power as Speaker to silence the minority. Mary Parker Follett claims that Clay’s leadership aimed at producing order. She writes, “The new principles set forth during Clay’s long service were: first, the increase of the Speaker’s parliamentary power; secondly, the strengthening of his personal influence; and thirdly, the establishment of his position as a legislative leader.” Clay drew criticism as he increased his power but it was also clear that he was capable of passing policies that advanced the country into the boom of the industrial revolution.

The most radical change in the House of Representatives during the antebellum period was a change that still characterizes it today: the creation of standing committees to expedite business and develop policy expertise. Between the War of 1812 and the Civil War, the House increasingly relied on standing committees to debate and amend measures. As this reliance on standing committees steadily expanded, the House’s relationship with standing committees changed: measures were first referred to committee for consideration and only after being reported by committee were they debated by the full House. This expedited the law-making process because the Committee of the Whole allowed any member to debate on any bill and delay the majority; a liberty that the minority would slowly lose through the Clay Speakership. But how much did the committee structure grow during the Antebellum period? At the time of the Founding the House of Representatives had only one standing committee and relied on ad-hoc committees. By 1810 the House had 10 standing Committees. In 1816 the Senate established 12 permanent committees. By the Civil War the House had 39 standing committees and the Senate had 22.

The new developments in Congress ensured that independents like John Randolph would play an increasingly smaller role in policy-making and that coalitions would play an increasingly greater role. Henry Clay believed in a system animated by coalitions because he believed that such a system provided the opportunity for compromise and energy within the legislature. According to Clay, a coalition-led process of deliberation and choice, as opposed to a member-centered process, meant that creating consensus and collapsing distinctions about factious issues would be more common, and policies of pressing concern would be passed expeditiously. However, in organizing the Congress Henry Clay empowered it to act more efficiently. Did this new energetic Congress exceed the limitations Publius intended for the Federal Government?

In the early 1830s John Calhoun argued that the policies enacted by the energetic Congress harmed the interests of the minority; further, he argued that the people of a state should be able to nullify a federal law if its people deemed it oppressive. He argued that the energetic Congress, passing tariffs that harmed southerners and using federal funds for roads that empowered manufacturers at the expense of farmers, had wielded unchecked power to favor Northern interests. He wrote, “The Government of the absolute majority instead of the Government of the people is but the Government of the strongest interests; and when not efficiently checked, it is the most tyrannical and oppressive that can be devised.” He argued that the state of South Carolina should be able to nullify and ignore the Federal Tariff laws on imports. However, South Carolina never nullified the federal tariff; Andrew Jackson threatened to use the army to collect tariffs and congress passed a Force Bill allowing him to do so, and Henry Clay passed a Compromise Tariff which would reduce the tariff over time to appease the state of South Carolina.

The Southerners deemed tariff laws oppressive, but nothing stoked the flames of disunion more than Congressional action upon slavery in the territories. Although South Carolina never effectively nullified the federal tariff, over the next thirty years the Southern states developed a constitutional theory of secession to combat the power of Congress which they deemed oppressive of their property rights and economic interests. In 1850, Jefferson Davis declared in the Senate, “every breeze will bring to the marauding destroyers of southern rights the warning ‘Woe, woe to the riders who trample them down!’” He argued that Congress had used its power to the detriment of Southern interests, and that they deserved extra protection for slavery or they may secede from the union. Of slavery, he argued, “This is the most delicate species of property that is held: it is the property that is ambulative; property which must be held under special laws and police regulations to render it useful and profitable to the owner.” When Abraham Lincoln was elected, Jefferson Davis argued that Lincoln’s hostility toward the expansion of slavery allowed the Southern states to secede from the union. He argued “Secession belongs to a different class of remedies. It is to be justified upon the basis that the States are Sovereign. There was a time when none denied it.”

As Dr. Eric Sands articulated for this study, in his essay on the Civil War and consequences of secession, Lincoln argued that secession was unconstitutional and threatened the principle of self-government. He argued that there could be no form of republican government if the losers of an election were free to secede in order to avoid the consequences of unpopular political beliefs. He said that the union was Perpetual; he argued that the Constitution intended that the union endure forever, and that the doctrine of secession was contrary to the most fundamental premise of the Constitution.

However, Davis and others argued that over the course of the Antebellum Period, the federal government had expanded its Constitutional power and used those powers oppressively toward the interests of the slave states. Lincoln argued that Davis was wrong; States were not sovereigns under the Constitution, and the common interests of union superseded their individual interest in the expansion of slavery and the protection of slaves as property.

Despite the philosophic differences, it is clear that as Congress lost the ability to collapse differences through virtue and statesmanship, and promote union through compromise, the union was destined to dissolve. The framers admitted that this was the case; that representative self-government relied upon a functional representative branch of government that protected and advanced the interests of citizens. Is our Congress capable of compromise, statesmanship, and advancing our common interests today? Perhaps the tools that quelled disunion throughout the Antebellum period could help solve our congressional crisis today.

Samuel Postell serves as Executive Director of The Center for Liberty and Learning at the Founders Classical Academy of Lewisville, Texas. Mr. Postell graduated from Ashland University with undergraduate degrees in Politics and English. He earned his master’s degree in Political Thought from the University of Dallas and is working on his dissertation to complete his Ph.D. Mr. Postell is writing a book on Henry Clay and legislative statesmanship, a subject about which he frequently writes and publishes. He has also conducted studies for Ballotpedia and has frequently contributed to Law and Liberty and Constituting America. At Founders Classical Academy he teaches courses on Government and Economics, and has taught courses on American Literature and Rhetoric.

[1] Desideratum is Latin, meaning “thing desired.”

 

Click here for American Exceptionalism Revealed 90-Day Study Schedule
Click here to receive our Daily 90-Day Study Essay emailed directly to your inbox

Guest Essayist: Samuel Postell


In his First Inaugural Address, Abraham Lincoln argued that “the Union is much older than the Constitution.” What did Lincoln mean when he spoke of the Union? The Declaration of Independence explains that the Americans were “one people” because they were providentially, philosophically, and hence politically united. In addition to referring to the Americans as one people, it also references the American people using the collective “We.” Furthermore, the document calls itself a “unanimous” declaration of the “united” States of America. The authors saw the separate colonies as previously united, and unanimity implied that they were “of one mind.” In short, the Declaration expressed that the Americans were one people capable of governing themselves. Because the Americans were united as one people and were arbitrarily ruled by another, the Declaration asserts that they have a duty to assert their independence by appealing to their Creator and natural laws of justice. Therefore, the principle of union, the rallying cry of Abraham Lincoln, Daniel Webster, Henry Clay, and George Washington, is one of the bedrock principles of the American founding.

Whereas the Declaration expresses the existence of unity at the time of the founding, many of the Federalist Papers contemplate the importance of a strong or firm union. For example, Federalist 9 asserts in its first line that “A FIRM Union will be of the utmost moment to the peace and liberty of the States, as a barrier against domestic faction and insurrection.” Additionally, Federalist 10 asserts that “Among the numerous advantages promised by a well-constructed union, none deserves to be more accurately developed than its tendency to break and control the violence of faction.” In other words, at the time of ratification, one of the most salutary effects of the United States Constitution was that it bolstered the existing unity between the American people and thereby combated faction and disunion. As discussed in previous essays, in Federalist 9 and 10, Publius argued that the particular kind of union created by the Constitution was the key to subverting the violence of faction, the primary vice of the political system under the Articles of Confederation.

But union was not only an important principle at the time of the signing of the Declaration and the ratification of the Constitution. The Declaration sets forth “self-evident truths” that are meant to guide the American people through time. The principles explicitly enumerated are “life, liberty, and the pursuit of happiness.” However, in Washington’s Farewell Address he emphasized the principle of “union” as that which secured the principles of the Declaration. In the Farewell Address, Washington counseled the American people: “The unity of government which constitutes you one people is also now dear to you. It is justly so; for it is a main pillar in the edifice of your real independence, the support of your tranquility at home, your peace abroad, of your safety, of your prosperity, of that very liberty which you so highly prize.” He told the people that “it is of infinite moment that you should properly estimate the immense value of your national Union to your collective and individual happiness; that you should cherish a cordial, habitual, and immovable attachment to it; accustoming yourselves to think and speak of it as of the palladium of your political safety and prosperity; watching for its preservation with jealous anxiety; discountenancing whatever may suggest even a suspicion that it can in any event be abandoned; and indignantly frowning upon the first dawning of every attempt to alienate any portion of our country from the rest, or to enfeeble the sacred ties which now link together the various parts.” In other words, Washington argued that union was the principle that secured the self-evident truths for which the Americans had fought in the Revolutionary War. According to Washington, the principle of union was necessary to secure the rights to life and liberty as well as the freedom to pursue happiness. Washington believed that if union failed, then the American experiment failed, and if the American experiment failed, then the prospect of liberty and self-government everywhere was in danger. Therefore, he urged the people to cherish the principle of union.

But why cherish union? Washington believed that patriotism and a dedication to union were necessary to preserve the blessings of the Revolution. For example, when he wrote to a society of Quakers who refused to defend the country in war, he told them that religious liberty was contingent upon the maintenance of the union. He wrote, “We have Reason to rejoice in the prospect that the present National Government, which by the favor of Divine Providence, was formed by the common Counsels, and peaceably established with the common consent of the People, will prove a blessing to every denomination of them. To render it such, my best endeavours shall not be wanting.” In the Farewell Address, Washington argued that the people ought to remain dedicated to the principle of union because “Citizens by birth or choice of a common country, that country has a right to concentrate your affections.” In other words, Washington argued that America was the common country of North, South, East coast, and unsettled West. Patriotism was a necessary virtue for men of all sections and all religious sects. Washington worried the rights for which men fought and died in the Revolution may be short lived without the virtue of patriotism and self-sacrifice for the principle of union.

Furthermore, Publius argued that the Americans were destined to become united. In Federalist 2, Publius argued that “Nothing is more certain than the indispensable necessity of Government.” But what kind of government was necessary? Publius argued that “It is well worthy of consideration therefore, whether it would conduce more to the interests of the people of America, that they should, to all general purposes, be one nation, under one federal government, than that they should divide themselves into separate confederacies, and give to each the head of each, the same kind of powers which they are advised to place in one national Government.” Publius believed that if the Constitution and the principle of union was rejected, then they would become like the “petty republics of Greece and Italy… kept in a state of perpetual vibration, between the extremes of tyranny and anarchy.” Publius foresaw that unless the Constitution be ratified and the principle of union secured, the country would become a loose confederacy like the European Union instead of a firm band of friends. Instead of creating a system of petty republics on the basis of confederacy, Publius argued that the Constitution would create a great republic on the basis of union. The Federalists argued that the constitutional union was fitting because the Americans had a common destiny, a common philosophy, and a common goal.

But why should the sections, which had different and contradictory economic interests, agree to subject themselves to a common government which would wield power? Isn’t it true that one section would, upon election, sometimes be given the opportunity to abuse their fellow country-men in different quarters, comprising different interests? Publius dealt with this problem in two ways. First, he argued that the American people were more similar than different. Second, the principle of federalism allowed the states to embrace their particular interests through state law, while allowing the federal government to legislate according to the “great and aggregate interests” of the country.

Publius argued that among the sections, the people were homogenous in their principles and character, even if they embraced different economic interests across the sections. He argued that Providence had prepared the American people for union. He wrote, “It has often given me pleasure to observe that Independent America was not composed of detached and distant territories, but that one connected, fertile, wide, spreading country was the portion of our western sons of liberty. Providence has in a particular manner blessed it with a wide variety of soils and productions, and watered it with innumerable streams for the delight and accommodation of its inhabitants.” Publius also remarked 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 their general Liberty and Independence.” In short, Publius argued that “This country and this people seem to have been made for each other.” In Federalist 2, Publius admitted that among the sections there were “slight shades of difference.” However, he argued that the common character and principles of the Americans trumped the consequential differences of economic interest across the sections. Furthermore, Publius and the Federalists believed that the American people would triumph over their differences through their common councils, given enough time.

However, Publius argued that the principle of federalism allowed for harmony in cases where the diversity of state interests clashed; by limiting the federal government to specific and enumerated purposes, the Constitution embraces the “slight shades of difference” among the states. For example, in Federalist 10, Publius makes a distinction between “local circumstances” and “national objects.” He argued that the representative must balance his attention to the local concerns of constituents and the “permanent and aggregate interests of the community.” He remarked that “the federal Constitution forms a happy combination in this respect; the great and aggregate interests being referred to the national, the local and the particular, to the state legislatures.” In other words, Publius believed that a limited government, embracing the principle of federalism, could unite American citizens in common matters while allowing the citizens of states to legislate according to their particular circumstances, habits, and interests.

But what was the alternative to union? One unpopular alternative among the Anti-federalists was the creation of a confederacy consisting of equal powers for each section of the union. In Federalist 5, Publius argued that the creation of a sectional confederacy was both impracticable and unwise. He predicted that the different sections would become jealous of the most powerful, and would scheme against their neighbors. Rather than cooperation, there would be competition between the sections. Rather than trust, there would be skepticism. Publius writes, “Distrust naturally creates distrust, and by nothing is good will and kind conduct more speedily changed, than by invidious jealousies and uncandid imputations.”

So, what was Publius’ solution to the different passions and interests that tended toward disunion? Publius’ most famous solution is the creation of the extended republic wherein the factions are multiplied, dispersed, and allowed to drown one another out. But also important is the way in which power is divided. The division of power is best explained in Federalist 51, where Publius explains that in the Constitutional system “ambition must be made to counteract ambition.” Publius first sought to quell factious differences by diminishing them through the extended sphere, but then sought to vent factious passions through the system of representation. The Constitution controls the violence of faction in a number of ways (the most important of which is the creation of an enlarged sphere, or a large republic), but here are four general ways the Constitutional system intended to deal with the difficulty of sectional faction by allowing “ambition to counteract ambition”:

  • First, the Constitution divides power between the state and federal government which allows local interests to pursue their ends without interfering with the self-government of other localities. The federal government and local government, each jealous of their powers, will compete for sovereignty through the courts and public forums.
  • Second, when federal legislative power is exercised, it is divided. This means majority factions cannot easily exact their designs because a bill must pass both houses.
  • Third, the Senate’s mode of election and representation are meant to balance the power of more populous states in the House.
  • Fourth, Publius imagined that representatives would “enlarge and refine public opinion” meaning that the representative would be less susceptible to the passions of local or sectional factions.

The Constitutional system successfully combated sectional faction under the pressures of the slavery question and Congress proved capable of balancing factious interests until states from the south rejected the Constitutional system and seceded from the union. In the next essay, I will consider how the Constitution and the Congress successfully combated the tendency toward disunion throughout the Antebellum period.

Samuel Postell serves as Executive Director of The Center for Liberty and Learning at the Founders Classical Academy of Lewisville, Texas. Mr. Postell graduated from Ashland University with undergraduate degrees in Politics and English. He earned his master’s degree in Political Thought from the University of Dallas and is working on his dissertation to complete his Ph.D. Mr. Postell is writing a book on Henry Clay and legislative statesmanship, a subject about which he frequently writes and publishes. He has also conducted studies for Ballotpedia and has frequently contributed to Law and Liberty and Constituting America. At Founders Classical Academy he teaches courses on Government and Economics, and has taught courses on American Literature and Rhetoric.

 

Click here for American Exceptionalism Revealed 90-Day Study Schedule
Click here to receive our Daily 90-Day Study Essay emailed directly to your inbox

Guest Essayist: Eric Sands


The Civil War was the greatest trauma to affect the United States in its history. The horrors of that conflict and the issues it brought to light continue to haunt the nation today and scholars continue trying to make sense of the turmoil that gripped the nation. One of the residual problems left over from that era is the doctrine of secession, or the ability of a state to rescind its membership in the Union and leave by itself or with other states. This, of course, is what eleven states tried to do in 1861 precipitating the bloody, awful war that followed. But is there a “right” of secession in the United States Constitution? How would a right of secession square with prevailing ideas of the Union? What response can be given to states claiming a right to secede from the Union? These and other questions required serious consideration in the 1860s and were answered most clearly by Abraham Lincoln.

The argument for secession begins with a claim that the states are the constitutive elements of the American political system. The states “made” the Union and thus never relinquished their essential sovereignty when the Constitution was formed. Under this view, the states were the parties to the original social contract that gave rise to the Union and thus are the entities that most legitimately judge whether the terms of that contract have been honored. When Southerners began to perceive that the terms of the contract were being violated over the slavery issue in the 1850s, a movement grew for the Southern states to withdraw their consent to be governed and to “peacefully” leave the Union to form their own political organization. In total, eleven states joined this movement and created the essential breach that inaugurated the Civil War.

President Lincoln was thrust into the role of defender of the Union and had to meet the secessionist argument head on. In his First Inaugural Address, Lincoln criticizes the secessionists for putting too much emphasis on the Constitution in articulating their understanding of the Union. According to Lincoln, the Union did not originate with the Constitution. Instead, “the Union is much older than the Constitution. It was formed in fact, by the Articles of Association in 1774. It was matured and continued by the Declaration of Independence in 1776. It was further matured and the faith of all the then thirteen states expressly plighted and engaged that it should be perpetual, by the Articles of Confederation in 1778.” Finally, the quest for “a more perfect” Union was embodied in the Constitution in 1787.

The Union, therefore, according to Lincoln, was perpetual. “Perpetuity is implied, if not expressed, in the fundamental law of all national governments. It is safe to assert that no government proper, ever had a provision in its organic law for its own termination. Continue to execute all the express provisions of our national Constitution, and the Union will endure forever.” The essence of secession is thus suicide, and it is inconceivable that the Founders would have incorporated such a concept into the constitutional system. No association of states could hold together if some of them were free to leave whenever the mood struck them. Moreover, secession would not leave the Union “more perfect;” it would leave the Union less perfect, which is not consistent with the intentions of the Constitution set out in the preamble. Accordingly, it cannot be said that the Founders endorsed something like secession in the constitutional system.

Even more, secession ignores the Declaration of Independence and the first words of the Constitution. The Declaration, when speaking of the need to separate from Great Britain, does not talk about colonies or states doing the separating. The language of the Declaration is that “one people” must separate. Clearly, then, the act of separating is not a function of state sovereignty but an act of popular sovereignty, a Union of people that has been forged in shared struggle and oppression and now seeks to liberate itself from tyranny. Likewise, the first words of the Constitution are not “we the states” but “we the people.” It is the people forming a new government out of their sovereignty, not the sovereignty of the states. The states, of course, are to be partners in this new government and significant roles are delineated to them in the constitutional system. But power is ultimately held by the people, the Union is made up of the people. The people may thus dissolve the Union if they ever chose to do so, but the states may not.

Lincoln reinforces these points in his Message to Congress in Special Session. He calls secession “sugar-coated rebellion” and denies any revolutionary character to it. Instead, it is a “sophism” deriving its “currency from the assumption that there is some omnipotent and sacred supremacy pertaining to a State – to each State of our Federal Union. Our States have neither more nor less power than that reserved to them in the Union by the Constitution, no one of them ever having been a State out of the Union.” The original thirteen became a Union before completing their separation from Great Britain. And the others came into the union from a condition of dependence. Thus, the reverence given to “states” is based on mist and shadows and does not match this history of the American regime. In short, the states only possess those powers granted to them by the Constitution, and this does not include the power of secession.

Eric C. Sands is Associate Professor of Political Science and International Affairs at Berry College.  He has written a book on Abraham Lincoln and edited a second volume on political parties.  His teaching and research interests focus on constitutional law, American political thought, the founding, the Civil War and Reconstruction, and political parties. 

 

Click here for American Exceptionalism Revealed 90-Day Study Schedule
Click here to receive our Daily 90-Day Study Essay emailed directly to your inbox

Guest Essayist: Andrew Langer


“[T]he theory of the Communists may be summed up in the single sentence: Abolition of private property.”  –The Communist Manifesto, Chapter 2

In addressing the inequities of 19th century European society, two German philosophers, Karl Marx and Friedrich Engels, building on the writings of ancient Greek philosophers in creating classless and egalitarian societies and the philosophies undergirding experimental communal living in the 19th century (inspired by philosophers like Charles Fourier), first articulated the political and economic system we now know as “communism” in their “Communist Manifesto.”

At the time of publication of the Communist Manifesto’s first edition (1847), there had been scant movement around the world toward liberal democracy (political systems that value liberty and the protection of individual rights for all citizens)—there had been our own revolution in the United States, liberalization in the United Kingdom, and a series of revolutions in France that had seen the nation swing from monarchy to republic to empire to monarchy, back and forth for decades.

As such, tremendous inequality remained among the populations of most European nations—and, perhaps not ironically, it was the year after the Communist Manifesto was first published, in 1848, that there was a series of revolutions in nations across Europe. In no uncertain terms, they cannot be characterized as communist revolutions, but much more in the vein of classical liberalism, rejecting monarchies and hierarchical societies for those that more highly valued individual rights.

Nonetheless, to the uninitiated, the ideas enshrined in the Communist Manifesto can be tremendously alluring—the idea of a society without classes, where all goods and property are owned in common, where the balance between work and life can be described as “from each according to his abilities, to each according to his needs,” a statement written by Marx in his 1875 work, “Critique of the Gotha Programme.”

The concept of abolishing private property is a pernicious enough sentiment. But coupled with the idea of the community picking and choosing what some individual’s abilities are as well as determining what that individual’s needs are, and you have a political and economic philosophy that, when put into action in a society, inevitably leads to both oppression and poverty.

Bound up in Marx’s 1875 statement is the essence of force and coercion.  Regardless of whether it is the “state” acting (and in Marxist philosophy, the state-centered transition phase between capitalism and communism is “socialism”), or the communistic society, you’re talking about force—the state determines what your “abilities” are, and you are forced to give of those abilities to society at large, regardless of your own feelings in the matter.

At the same time, the idea that the society then determines what your needs are, and that you’re unallowed to own property of your own, means that they can use the heavy hand of coercion to achieve their goals.

Moreover, the abolition of private property hamstrings the ability of a society to achieve economic prosperity and promotes political instability. Richard Pipes in his seminal work, “Property and Freedom,” looked at societies across history and, looking at how those societies protected private property, demonstrated the interrelationship between the protection of private property and the successful longevity of a nation. Peruvian economist and political scientist Hernando DeSoto, in “The Mystery of Capital” engages in something similar, but instead of looking through history, he looks at more recent examples around the world.

If you own your own private property, you can both use it to invest in some entrepreneurial idea, and you can utilize the property itself to support yourself and your family. Because you have a reliance on legal systems to protect that property, you can have hope in your future, and that hope creates that political stability.

The contrast is straightforward: if you don’t protect private property, if your society is centered on coercion and giving up your individual rights to the collective, this leads to oppression and economic stagnation. It is why just about every society founded on the principles outlined in the Communist Manifesto has failed, and others only remain because of brutal oppression or because they’ve adopted certain measures of state-sponsored capitalism.

Our own United States Constitution creates a classless society, starting with the idea that there is total equality among citizens. All of the rights (enumerated and unenumerated) apply to everyone, regardless of income level, race, etc. More importantly, it is predicated on the idea that those rights pre-exist the government, and aren’t bestowed by that government, that the Constitution itself is a restraint on government power and not the other way around.

Bound up in this is the 5th Amendment to the Constitution: “No person shall be deprived of life, liberty or property without due process of law… nor shall private property be taken for public use, without just compensation.”

This is a stark and fundamental departure from Marx and Engels—as opposed to abolishing private property, our Constitution makes it clear that government can only take private property from individuals provided that three things happen:

(1) The property is being taken for a legitimate public use.

(2) That due process is accorded to the property owner.

(3) That if 1 and 2 are adhered to, that “just” compensation is given to the property owner.

Setting aside instances in which these three tenets are abused by government, from a constitutional perspective, this is a clear departure from communist philosophy.

And it undergirds other rights as well. Keep in mind, the several constitutions of the Soviet Union, for instance, protected things like free speech. But since the constitutions of the USSR didn’t protect private property, that right was held cheaply since the state could just confiscate the presses of a critical press and threaten the journalists themselves if they didn’t adhere to the “party line.”

The same can be said of other individual rights: freedom of religion, freedom of assembly, the right to keep and bear arms. Besides outlawing most private gun ownership outright, the state could use their coercive powers to keep these other individual rights “in check.”

By guaranteeing rights, and recognizing that power flows from the people to their government and not the other way around, and that regardless of who you were all adults had the same rights, our Founders created the classless society Marx dreamed of. It was the flawed vision of Marx and Engels that failed, because they didn’t understand how their approach could be fundamentally abused and used to oppress, that spawned a nightmare.

Andrew Langer is President of the Institute for Liberty.

 

 

 

Click here for American Exceptionalism Revealed 90-Day Study Schedule
Click here to receive our Daily 90-Day Study Essay emailed directly to your inbox

Guest Essayist: Jay McConville


When I was a boy, I loved baseball. Unfortunately, having been born in Queens, New York, my chosen team was the NY Mets who, at that time, were the laughingstock of the major leagues. I still have faint memories of my father agonizing over their 89 losses in 1968, which, as bad as it was, was their best year since joining the league in 1962. At no time during those years had they finished better than ninth.

Then something amazing happened. In one of the greatest sports upsets in history, the 1969 “Amazing Mets” rose from the depths of the standings to become World Series Champions. I still remember that final game and cheering for all my favorite players. Yet, while they played amazing baseball, credit for the miracle season is most often given to Gil Hodges, the team’s manager. Joining only in 1968, he had quickly established a common vision for the team. His leadership enabled them to overcome their past, silence their critics, and play like champions. As announcer Curt Gowdy said during the last inning of the ’69 series, one word described the Mets: “inspired.”[1] It was Gil Hodges who inspired them, and his common vision put them on the road to success.

“From day one, spring training, Gil Hodges had a plan…He made each and every one of us better,” said outfielder Cleon Jones. Pitching Ace Jerry Koosman added, “Gil Hodges had one set of rules. There weren’t two sets of rules, and we each had to abide by those rules. That was a way of drawing teammates together.”[2] It worked, and the laughingstock team became World Champions.

You might wonder what this story has to do with the United States Constitution. Well, maybe not much. There is one thing, however, that I think it shows. An inspirational vision and a clear mission are critical to the success or failure of any organization. Successful leaders unlock the potential of others by articulating such a vision, one that can be shared by all and that is fair and equal across the board. History also tells us that the wrong vision, the wrong mission, can lead to disaster.

The Declaration of Independence and the United States Constitution established our nation’s vision and mission. The brilliant leaders who crafted those documents united a diverse people, established the most successful nation in history, and changed the face of government forever.

The vision so beautifully articulated in our founding documents was that all men were sovereign over themselves and equal before the law, and that because of this innate human value, governments were instituted among them only by their consent. It was a vision that had been long in the making. Thomas Jefferson, tasked by the Continental Congress to draft the Declaration in June 1776, had studied the writings of the Greeks, the Magna Carta (1215), English Common Law, Coke’s Institutes of the Laws of England (1600-1615), John Locke, and Montesquieu (1689-1755), among others. Like James Madison, John Adams, and the other Founders, he knew the importance of individual sovereignty in guarding against the depredations of the state. The vision in the Declaration was a bold assertion of those rights. “We hold these truths to be self-evident, that all men are created equal, and that they are endowed by their creator with certain unalienable rights…”[3] His phrase “life, liberty, and the pursuit of happiness,” which was lifted from John Locke’s Two Treatises of Government (1690) (“life, liberty, and estate”)[4], established that forever more the individual would be sovereign, protected from the tyranny of government by the fact of his humanity.

While Jefferson did not attend the Constitutional Convention in 1787, that vision was certainly reflected in the Constitution’s checks and balances, controls on federal power eventually acceptable to both Federalists and Anti-federalists alike. The critical nature of these was most famously, and most articulately, laid out in Federalist 51, and James Madison’s famous words: “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.”[5] Madison, a Federalist, advocated for a strong central government, yet recognized the risk in power being concentrated in the hands of fallible men.

Later, the Bill of Rights was added, providing ten amendments to further clarify the vision of a free and sovereign citizenry. The Anti-federalists insisted that those amendments be included, to document for all time the limited scope of government. This unifying vision survives to this day, enshrined in the due process protections in the 14th Amendment, and reflected in many Supreme Court decisions limiting the government’s reach.

That vision was both positive and unifying, and it brought our young nation together. The then national motto, adopted in 1782, reflected the belief that the individual was the core of the nation. E Pluribus Unum (from many, one) ushered in a dramatic change in the nature of governance. There was no king, no emperor, and no aristocratic class to rule. “We the people” were sovereign and independent, yet also tied together in a common pursuit.

And what was that pursuit? Equal in importance to the vision was a unifying mission: to achieve “a more perfect Union.” This would be accomplished by establishing “Justice,” insuring “domestic Tranquility” providing for the “common defense,” promoting the “general Welfare,” and securing “the Blessings of Liberty to ourselves and our Posterity.”[6] Articulated in the Constitution’s preamble, that is a mission worth serving, and one that hundreds of millions have pledged their lives to.

It is informative to contrast America’s vision and mission to that articulated in another extremely impactful document, the “Communist Manifesto.”[7] First published in London in 1848, it was translated into multiple languages, and, importantly, released in Russian in 1863. Like the United States’ founding documents, the manifesto ushered in a revolution in governance, which took hold first in the Soviet Union in 1917, and then spread throughout the world. While written mostly by Karl Marx, “its economic analysis was strongly influenced by [Friedrich] Engels’s ‘practical experience of capitalism’ in his family’s cotton firm…in 1842-44.”[8] It is therefore important to note that the world was experiencing extreme upheaval during the 1840s. Major social, political, and economic strife fed the development of the text, which explains some of its dark character. The serf societies were ending, farmers were moving to cities in response to the budding industrial revolution, the European aristocracy was losing its power to a rising class of business entrepreneurs, while everywhere workers struggled to find a place in new, rapidly changing, and often soul-deadening, industries. As historian of the manifesto, George Boyer, writes, “despite its enormous influence in the 20th century, the Manifesto is very much a period piece…It is hard to imagine it being written in any other decade of the 19th century.” Regardless, its impact was global and long-lasting. The 1917 Soviet Revolution adopted Marxism as its guiding vision, which eventually led to a rapid expansion of communism in the 20th century.

Yet what was that vision? Was it to inspire great things, like that of the Declaration of Independence and the U.S. Constitution? No, it was not. The Communist Manifesto[9] inspired, in a word, tyranny. A review of some of its text demonstrates why.

First, there was no message of equality of all men. The document focuses on class conflict, and the struggle of one class to destroy the other. “Society as a whole is more and more splitting up into two great hostile camps, into two great classes directly facing each other – bourgeoisie and proletariat.” The mission would only be achieved when “they” (the bourgeoisie) were destroyed.

Second, there was no commitment to individual sovereignty (life, liberty, and especially property) seen in the U.S. documents. “The abolition of bourgeois individuality, bourgeois independence, and bourgeois freedom is undoubtedly aimed at” and “…you reproach us with intending to do away with your property. Precisely so; that is just what we intend.” Gone was the concept of unalienable rights.

Third, the vision did not inspire unity, but instead served as a justification to use raw power to achieve dominance, power that would be wielded by the state. “The proletariat will use its political supremacy to wrest by degrees all capital from the bourgeoise, to centralize all instruments of production in the hands of the state, i.e., of the proletariat organized as the ruling class…”

And finally, the power of the state was to be absolute, and the revolution violent. “Of course, in the beginning this cannot be effected except by means of despotic inroads on the rights of property…”

In contrast to E Pluribus Unum, consent of the governed, equality before the law, protection of individual life, liberty, happiness, and property, and limits on the tyrannical impulses of government, the Communist Manifesto provided vision and mission focused on class conflict, rule by force, destruction of the opposition, the end of property rights and individual rights, all to be instituted by the unlimited “despotic” power of government.

The Victims of Communism Memorial Foundation has done extensive research documenting the damage done by tyrannical communist governments. They cite 100 million deaths at the hands of these regimes over only a 100-year span. Inspired and enabled by the Communist Manifesto, these regimes destroyed societies in a quest of a property-free utopia that was unachievable. In so doing they imprisoned, tortured, banished, and killed over a hundred million of their own citizens, while foisting war and chaos on the world. Thirty years after the fall the Soviet Union, “millions of people worldwide — one-fifth of the world’s population — still live under communist tyranny.”[10]

It has become somewhat fashionable to say that communism, or “socialism,” is a good idea (or theory) that could work if we just implemented it correctly. The Communist Manifesto gives lie to that claim. The vision is destruction, the mission tyranny. The result predictable. How many more need to die before we finally accept this fact?

It is also fashionable to criticize the United States for our failure to live up to our vision and mission. We are beset, and have been since our founding, with a multitude of problems and challenges. Slavery, social upheaval, war and civil war, domestic strife and crime, poverty, natural and manmade environmental disasters, depressions, recessions, and so much more. Have we failed in our mission? I think it is important to remember the 1969 Mets. In that miracle year, they gave up 1,217 hits, including 119 Home Runs, let in 541 runs, batted only .242, struck out 1089 times, and lost 62 Games. Yet they were World Champions.

Our shared mission is to “promote a more perfect union.” The word “more” is important. Our mission is not a utopian dream of perfection, instead it inspires us toward progress. Progress, not perfection. The road may be twisted and rocky, but we are well along it to establish justice, peace at home and abroad, improve the general welfare and pass the blessings of our liberty onto our future generations. Each generation’s task is to make our nation “more perfect.” For all our faults, our unifying vision and mission have set us apart among nations and made us the example for others to emulate.

What we need now is to trust in that vision, not abandon it for one proven toxic and deadly.

We need to rededicate ourselves to creating a more perfect union, not descend into the politics of resentment and strife found in the Communist Manifesto.

As future President, Calvin Coolidge, said in his “Have Faith in Massachusetts” speech in 1914, “We need a broader, firmer, deeper faith in the people – a faith that men desire to do right, …a reconstructed faith that the final approval of the people is not given to demagogues…but to statesmen ministering to their welfare, representing their deep, silent, abiding convictions.”[11]

E Pluribus Unum, Consent of the Governed, All Men Created Equal, and a More Perfect Union.

Jay McConville is a military veteran, management professional, and active civic volunteer currently pursuing a Ph.D. in Public Policy and Administration at the L. Douglas Wilder School of Government and Public Affairs, Virginia Commonwealth University. Prior to beginning his doctoral studies, he held multiple key technology and management positions within the Aerospace and Defense industry, including twice as President and CEO. He served in the U.S. Army as an Intelligence Officer, and has also been active in civic and industry volunteer associations, including running for elected office, serving as a political party chairman, and serving multiple terms as President of both his industry association’s Washington DC Chapter and his local youth sports association. Today he serves on the Operating Board of Directors of Constituting America. He holds a Bachelor of Arts in Government from George Mason University, and a Master of Science in Strategic Intelligence from the Defense Intelligence College. Jay lives in Richmond with his wife Susan Ulsamer McConville. They have three children and two grandchildren.

[1] Team of Destiny – The Final 3 Outs of the 1969 World Series, New York Mets, https://www.youtube.com/watch?v=JyDiuRDf918

[2] The Greatest Season: The 1969 Miracle Mets Trailer, MyMar Entertainment and Media, https://www.youtube.com/watch?v=KSh9XcgVrt0

[3] Declaration of Independence: A Transcription, National Archives, retrieved from https://www.archives.gov/founding-docs/declaration-transcript

[4] Bernstein, William (2004). The birth of plenty: How the prosperity of the modern world was created, McGraw Hill

[5] The Federalist No. 51, [6 February 1788], Founders Online, National Archives, https://founders.archives.gov/documents/Hamilton/01-04-02-0199. [Original source: The Papers of Alexander Hamilton, vol. 4, January 1787 – May 1788, ed. Harold C. Syrett. New York: Columbia University Press, 1962, pp. 497–502.]

[6] Constitution of the United States, Constitution Annotated, United States Congress, retrieved from https://constitution.congress.gov/constitution/

[7] Hutchins, Robert Maynard ed. (1989). Great books of the western world: Marx. Encyclopedia Britannica, Inc.

[8] Boyer, George (1998). The historical background of the Communist Manifesto. Journal of Economic Perspectives, Vol. 12, No. 4, Fall 1998, https://www.aeaweb.org/articles?id=10.1257/jep.12.4.151

[9] All quotations from Hutchins (1989), pp. 413-434

[10] Victims of Communism Memorial Foundation, https://victimsofcommunism.org

[11] Coolidge, Calvin (1914). Have faith in Massachusetts. Calvin Coolidge Presidential Foundation,  https://coolidgefoundation.org/resources/have-faith-in-massachusetts/

 

Click here for American Exceptionalism Revealed 90-Day Study Schedule
Click here to receive our Daily 90-Day Study Essay emailed directly to your inbox

Guest Essayist: Tony Williams


Even decades after the fall of the Soviet Union and collapse of other communist states, the old canard that communism is a great idea that has never really been tried refuses to be thrown into the dustbin of history along with its failed regimes. Sympathizers with Marxist views cling to this belief despite all contrary evidence over the past century.

To give the view its due, however, the belief rests upon the presupposition that communism has only been introduced into largely agrarian societies rather than the advanced industrial societies rife with the class conflict and consciousness envisioned by German philosopher and communist Karl Marx. Therefore, orthodox Marxism has never truly been introduced by a violent revolution of the oppressed proletariat overthrowing the bourgeoisie. Nevertheless, this is because Marx’s progressive view of history and scientific socialism was simply wrong on several points and his theory had numerous flaws, particularly in its understanding of human nature.

The communists who followed Marxism believed that human nature is good and perfectible, and that human beings were capable of building utopias once oppressive institutions were destroyed and the internal contradictions of capitalism resulted in revolution. The Greek etymology of the word utopia means “no place.”

The American Founders were influenced by ancient and Christian thought that understood human nature to be imperfect (due to vice or sin) but capable of virtue. They consequently established a republican United States Constitution that controlled the government as well as the governed while protecting liberty. Separation of powers, checks and balances, federalism, bicameralism, and regular elections are proof that the Founders sought to limit the vagaries of human nature.

The other mistake of communism is the belief that humans are only shaped by an economic determinism and class conflict. This is an absurd reductionism. Human beings are much more complex creatures and are driven by politics, culture, religion, community, ties of kith and kin, and providing for their families rather than just economic inequality and alienation.

In Federalist #10, James Madison acknowledged that factions formed as a result of differences over property. The divisions over property were based upon “the diversity in the faculties of men” and their passions. He understood therefore that they would always exist. Madison noted that a zeal for political opinions, religious views, and a host of other things in society also divided people.

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

The answer was that neither of these was desirable. So, Madison offered the alternative of controlling or mitigating the effects of factions by expanding the sphere of the republic and allowing differing views to flourish. Communists instead chose to destroy liberty and sought to force the people to have the same opinions through cult of personalities, cultural revolutions, reeducation and indoctrination, and rewritten history.

Communism has always been imposed by a small revolutionary intellectual vanguard upon a mostly unwilling peasantry. The Russian Revolution, for example, occurred when only perhaps two percent of the population was employed in industry, and Russian Marxist Vladimir Lenin himself was frustrated that the peasantry did not demonstrate any class consciousness. They were often strongly attached to the Tsar and the Russian Orthodox Church. Widespread opposition to the Bolshevik regime in the wake of the Russian Revolution resulted in a bloody civil war that left millions dead and the opposition summarily crushed.

Moreover, communism has never been led by the proletariat after the state “withered away” in Marx’s terminology. Instead, the communists formed one-party dictatorships and police states with unlimited power that were much more oppressive than the regimes they overthrew. Indeed, they unleashed unimaginably horrific genocides. Perceived enemies of the state and their families were executed and thrown into the gulag. Communist states starved people to death by the millions.

Contrarily, one of the main principles of the American Revolution was the transformative concept of popular sovereignty where the people rule. Elites certainly comprised the leadership of the American Revolution in the halls of legislatures and conventions and one cannot ignore slavery, but Founders created a republic in which the people elected representatives and could serve in different levels of government themselves. The Declaration of Independence was anchored in the principle of popular rule and right to overthrow a tyrannical government that violated their rights.

Marxism also got several things spectacularly wrong about humans as economic actors. Most fundamentally, people want to enjoy a higher standard of living and consumer goods rather than wanting to overthrow the free enterprise system. The massive food lines experienced by the people living under communism while party apparatchiks ate caviar in their summer dachas bred a lot more resentment than capitalist inequality.

In advanced capitalist societies, workers have generally enjoyed the protections of the social safety net—such as pensions, 401(K)s, Social Security, unemployment, health benefits—provided by employers and tax-supported welfare states. While these government programs expanded the purposes and scope of government beyond that envisioned by the Founders, they are much less intrusive than communist states. Moreover, industrial regulations have provided workers with numerous safety and health protections. Workers have also organized into labor unions to bargain or strike for better wages, hours, and working conditions or control over the shop floor. All these developments have negated scientific socialism.

Marx wrote the Communist Manifesto during some of the worst ravages of early industrialization including oppressed workers, unsafe and unhealthy conditions in factories and mines, great danger of mutilation and death, widespread environmental degradation, and great poverty and squalor in industrializing societies. In the twentieth century, those problems characterized communist regimes instead of modern capitalist societies. Meanwhile, capitalism has plainly lifted billions out of poverty through dynamic growth, innovation, and widespread prosperity.

Communism was responsible for an estimated 100 million deaths. It suppressed human flourishing in the arts and sciences by extinguishing liberty, created widespread suffering with decrepit economic systems, imposed crushing police states, and destroyed the institutions of civil society. Most of the American Founders understood that such utopian schemes were doomed by their flawed understanding of human nature, self-governance, and civil society. The American founding vision built a constitutional order with self-governance and a healthy civil society that allowed individuals to thrive.

Tony Williams is a Senior Fellow at the Bill of Rights Institute and is the author of six books including Washington and Hamilton: The Alliance that Forged America, with Stephen Knott. Williams is currently writing a book on the Declaration of Independence.

 

 

Click here for American Exceptionalism Revealed 90-Day Study Schedule
Click here to receive our Daily 90-Day Study Essay emailed directly to your inbox

Guest Essayist: James C. Clinger


The American Constitution was crafted in a deliberate way to prevent the failures of the government under the Articles of Confederation and to stop the harmful events that the Founders could see abroad and throughout history. Of particular concern was the need to empower the president to execute the law in a faithful manner. At the same time, the United States Constitution would limit executive power in order to prevent the rise of a dictator. Such safeguards have not always been found in the constitutions or governmental structures of other nations, and ambitious political figures, such as Napoleon Bonaparte, have taken advantage of every opportunity to amass more and more power, often at great cost to their own countries and also to the detriment of neighboring states.

The Articles of Confederation provided for virtually no executive authority. The American Constitution took another approach, both authorizing executive power but also constraining its exercise with a combination of institutional checks and balances. With the exception of the power to veto bills passed by Congress, which appears in Article I, the bulk of the presidential powers listed in the Constitution are found in Article II. This article is much more brief than the text of Article I, which applies to legislative powers, and approximately half of the text of Article II deals with qualifications for office and the manner of election, rather than powers and duties of the office. Some observers may infer from the small amount of verbiage in Article II compared to Article I that the legislature holds far greater power than the executive. In fact, James Madison wrote in Federalist #51, “In republican government, the legislative authority necessarily predominates.”[1] Other observers believe that while the actual text of Article II is terse, the specifically listed powers are broad, and additional powers may be implied from those that are explicitly stated. Within Article II, the president of the United States is “vested” with executive power. There has been considerable debate on whether that vesting refers to holding the explicit powers that are later listed, or whether this provides authority to carry out general powers that are deemed to be executive. What “executive” action actually entails is not completely clear. The word “executive” is derived from the Latin words ex sequi, which in English means to follow or to carry out.[2] This suggests that an executive, including a president, is primarily a follower acting on behalf of someone or something else. Nevertheless, many Americans think of the modern president as more of a leader than a follower.

The first powers listed in the first clause of Article II authorize the president to be commander-in-chief of the armed forces of the United States. It also indicates that the president “may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices.”   Notably, the Constitution does not say that the president can tell principal officers what to do. The president is also given the power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment. The president is not given clemency powers for state offenses.

The second clause of Article II authorizes the president “to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law.” By law, the Congress may “vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.”

These provisions, commonly known as the advice and consent clause, have been at the center of various controversies during American history. The clause indicates that the president may appoint “officers” of the United States, but it does not define what an officer is. Furthermore, while the clause explicitly provides for presidential appointment, it nowhere authorizes the president to remove the appointees that he has appointed.[3] As a practical matter, the federal courts have concluded that the president has at least some removal power implied by the executive powers vested in Article II,[4] but there have been a number of disputes about this question resolved somewhat inconsistently by the Supreme Court in cases such as Myers v. United States,[5] Humphrey’s Executor v. United States,[6] and Seila Law, LLC v. Consumer Financial Protection Bureau.[7]

The Constitution also gives the president the power to “make” treaties, subject to the approval of two-thirds of the senate, but it is not specific about the enforcement of treaties or their termination. During the War of Independence, the United States entered into a treaty allying itself with France. A few years later, after the French Revolution had become brutal and bloody, President George Washington issued a proclamation of neutrality, effectively voiding the treaty. This was controversial in its time, since the Constitution did not seem to authorize that sort of unilateral action, and also because there were many prominent figures in government, such as Thomas Jefferson, who were at least initially sympathetic to the French Revolution. In support of Washington’s action, Alexander Hamilton penned seven letters for publication making the case for the neutrality proclamation. Using the pen name, Pacificus, Hamilton sparred with James Madison, with whom he had written many of the Federalist Papers. Madison, writing under the name Helvidius, was recruited to oppose Washington’s position by Jefferson, who was then serving as secretary of state.[8]

Article II also imposes obligations upon presidents, as well as confers powers. Presidents are required to inform Congress “from time to time” of the State of the Union. The chief executive is also obliged to recommend, for the consideration of Congress, such measures which the president deems as “necessary and expedient.” When Congress is not in session, the president is authorized to call a special session of one or both houses of Congress. The president is also empowered to receive all foreign ambassadors. This has been construed to mean that the president has exclusive authority to recognize foreign governments.

Finally, Article II also demands that the president “take care that the laws be faithfully executed.” This appears to be a broad, encompassing authority and responsibility to carry out federal law, even those that are not supported by the president. While there is some inherent discretion in all enforcement, the president does not have any general authority to dispense with laws enacted by the legislature, as was the case in some monarchical systems.

The Constitution also constrains the chief executive and all other officers by providing for their impeachment and removal for the offenses of “Treason, Bribery, and other High Crimes and Misdemeanors.” This suggests that no executive can flout the law without consequences. It also provides for a means of removing an officer without resorting to a coup or assassination.

Many countries do not so carefully curb the powers of their executives, or they lack the will or the ability to enforce these constraints. In France in 1799, the newly established government, called the Directory, fell to a coup which was encouraged from within. The plural executive body was joined by a bicameral legislature made up of a Council of Five Hundred and a Council of Elders. One director, Abbe Emmanuel Sieyes, plotted a coup that would force out most of the directors and lead to the creation of a consulate, headed by a military leader as first consulate while he exerted actual control. Although not Sieyes’ first choice, the popular and successful General Napoleon Bonaparte was selected to serve as first consul. The general’s brother, Lucien Bonaparte, served as president of the Council of Five hundred, as expected to assist the coup. The coup succeeded in sweeping away the Directory, but Napoleon was not content to serve Sieyes’ interests. Very quickly, Napoleon rather than Sieyes was firmly in control, with no internal dissent permitted.[9]

Napoleon was not curbed by constitutional constraints upon his executive power. He suppressed the critical press and created his own propaganda machine.[10] The emperor was able to use his military to crush internal dissent, stop brigandage, and thwart foreign invasions.[11] Unconstrained by prior legal limitations on his conduct, the emperor designed his own legal system, the Code Napoleon, and imposed it upon his own nation. Ultimately, Napoleon’s own limitless ambition led to his undoing, but not until thousands had died in his pursuit of conquest. Of course, the United States has also had its own constitutional crises, most notably in the Civil War, which also cost much in blood and treasure. But under the Constitution, the United States has been freed of the folly of a dictatorship led by a single tyrant. The Constitution’s limits on the executive have thus far staved off that calamity.

James C. Clinger is a professor in the Department of Political Science and Sociology at Murray State University. Dr. Clinger teaches courses in state and local government, Kentucky politics, intergovernmental relations, regulatory policy, and public administration. Dr. Clinger is also a member of the Murray-Calloway County Transit Authority Board and a past president of the Kentucky Political Science Association. He currently resides in Hazel, Kentucky.

[1] The Federalist Papers, Number 51

[2] Rohr, John A. 1997. “Public Administration, Executive Power, and Constitutional Confusion.” International Journal of Public Administration 20 (4/5): 887

[3] Tillman, Seth Barrett. 2010. “The Puzzle of Hamilton’s Federalist No. 77.” Harvard Journal of Law & Public Policy 33 (1): 149–67.

[4]  Prakash, Saikrishna.  2006.   “New Light on the Decision of 1789,”    Cornell Law Review. 91:1021-1078.

[5] 272 U.S. 52

[6] 295 U.S. 602,

[7] 140 S. Ct. 2183

[8] Young, Christopher J . 2011. “Connecting the President and the People: Washington’s Neutrality, Genet’s Challenge, and Hamilton’s Fight for Public Support.” Journal of the Early Republic 31 (3): 435–66.

[9] Rapport, Michael. 1998. “Napoleon’s Rise to Power. (Cover Story).” History Today 48 (1): 12–19.

[10] Dwyer, Philip G. 2004. “Napoleon Bonaparte as Hero and Saviour: Image, Rhetoric and Behaviour in the Construction of a Legend.” French History 18 (4): 379–403.  See also Forrest, Alan. 2004. “Propaganda and the Legitimation of Power in Napoleonic France.” French History 18 (4): 426–45.

[11] Devlin, Jonathan D.  1990.  “The Directory and the Politics of Military Command: The Army of the Interior in South-East France.”  French History,  4 (2):, 199–223.   See also Brown, Howard G. 1997. “From Organic Society to Security State: The War on Brigandage in France, 1797-1802.” Journal of Modern History 69 (4): 661-695.

 

Click here for American Exceptionalism Revealed 90-Day Study Schedule
Click here to receive our Daily 90-Day Study Essay emailed directly to your inbox

Guest Essayist: James C. Clinger


The United States and France had complicated and seemingly inconsistent relations in the years preceding and shortly following the American Revolution. In the 1750s, the American colonists and the British military fought the French in the French and Indian War. But in the 1770s, the French provided invaluable assistance to the American cause in the fight against the British in the War of Independence. During that war, the newly formed United States entered into a treaty allying itself with France, but after another revolution broke out in France in the 1790s, America’s first president, George Washington, issued a neutrality proclamation, effectively negating the treaty.

While the revolution raged in France, American politicians staked out positions of support or denunciation of the increasingly bloody regimes that replaced the government that had aided their cause in the fight for independence. A few years later, a new government and a new powerful figure, Napoleon Bonaparte, ruled over France. His rule made a considerable mark in the United States, for he was responsible for ceding enormous territory to the new nation in what has become known as the Louisiana Purchase in 1803. A few years later, the wars Bonaparte stirred up in Europe carried over to the western hemisphere in what is known now as the War of 1812, in which Americans once again fought the British, the primary enemy of France in that era.

The foreign affairs of these two nations are not so much the focus of this essay as they are illustrations of the implications of domestic events in each nation. During these years, the new nation of the United States and the relatively old nation of France each experienced dramatic changes in their constitutional development. These developments left the United States with an energetic yet institutionally constrained executive leading the government of a federal republic. In France, an emperor dominated the political scene of a unitary state in which the executive controlled both the legislature and the judiciary. This essay will explore how and why two nations with such intertwined histories took such divergent paths.

In 1984, the political scientist, Donald S. Lutz, published an article reporting his findings from research that examined which European authors were most frequently cited in the writings of America’s founders both before and after the revolution. The author most commonly cited was Charles-Louis de Secondat, Baron de Montesquieu, the author of a book published in English under the name The Spirit of the Laws.[1] In that work, Montesquieu developed a modern theory of what we now call the separation of powers. Montesquieu also made a case for an independent and secure court system, not subject to the will of the executive, the legislature, or any particular private interest. Montesquieu had significant impact in the design of the federal constitution, as well as the constitutions of many American state constitutions. He also had considerable influence in Britain. Ironically, his influence in his native France was not as deep or long-lasting as his impact abroad.

The first American national charter, The Articles of Confederation, did not display any interest in a separation of powers. The government established a unicameral legislative body which could, by committee, appoint one of their number as a president with little power.[2] There were no courts for the central government. State courts would handle legal disputes within their states’ boundaries, and the confederation congress would hear cases involving boundary disputes between states.[3] All of this changed with the ratification of the new constitution. While there was some overlap and sharing of functions between the legislative, executive, and judicial branches, to a great extent these institutions were kept separate, establishing a check against the mischief that might temporarily prevail in a single branch. The specific details of those checks will be discussed in the next essay. Suffice it to say now, that the institutional design of the constitution took into account the issues about which Montesquieu had written approximately a half century earlier.

In the Federalist Papers, the design of the United States Constitution was defended before a skeptical audience. James Madison, author of Federalist Paper #38, argued that no matter what flaws could be found in the new constitution, it was surely superior to the Articles of Confederation. In Madison’s words,

It is a matter both of wonder and regret, that those who raise so many objections against the new Constitution should never call to mind the defects of that which is to be exchanged for it. It is not necessary that the former should be perfect; it is sufficient that the latter is more imperfect. No man would refuse to give brass for silver or gold, because the latter had some alloy in it. No man would refuse to quit a shattered and tottering habitation for a firm and commodious building, because the latter had not a porch to it, or because some of the rooms might be a little larger or smaller, or the ceilings a little higher or lower than his fancy would have planned them. But waiving illustrations of this sort, is it not manifest that most of the capital objections urged against the new system lie with tenfold weight against the existing Confederation?[4]

One particularly noteworthy aspect of the new framework was provision for a president heading an executive branch of government. According to Alexander Hamilton, the constitution provided for “energy” in the executive through both the powers assigned to the office and the manner in which the officeholder would be selected. In Hamilton’s words, “The ingredients which constitute energy in the Executive are, first, unity; secondly, duration; thirdly, an adequate provision for its support; fourthly, competent powers.”[5] Under the Constitution, there is one chief executive, consistent with the unity principle. The president would serve fixed, four-year terms, consistent with the duration precept. Whether the support for the executive would be adequate would largely depend upon the appropriations of money by Congress. Hamilton believed that the powers vested in the president in Article II of the Constitution were “competent,” although at various times in history this claim has been challenged.

The political transformation of France took a different course. In 1789, while the American constitution was being drafted, France was a somewhat centralized monarchy, but with considerable autonomy exercised in its provinces. A National Assembly served as a constituent assembly, but it was unable to handle some pressing economic and political problems that were growing in the 1780s. The financial costs of war, including the American Revolution, had made the government almost bankrupt, despite the general trend of economic and population growth that the country enjoyed in prior decades. Crops failed in much of France in 1788, and prices for food and many other items spiraled up dramatically. The comptroller general of finances, Charles-Alexandre de Calonne, proposed a substantial tax increase on the upper classes to cover the budget deficit, but the National Assembly refused to approve this proposal, instead calling for the gathering of the Estates-General, which had not met since 1614. The Estates General was a body representing the clergy, the aristocracy, and the commoners. When the Estates General met in Versailles, the Third Estate, representing the commoners, declared itself the National Constituent Assembly and began to write a new constitution. King Louis XVI reluctantly accepted the new body and urged the nobles and the clergy to join it. Behind the scenes, the king sought out armed forces to oppose it.[6]

The new constitution did provide for some separation of powers in which the assembly was preeminent, but the king could appoint and remove his own ministers. The nobles lost their titles and hereditary privileges, and the franchise was extended to most adult men. The provinces lost much of their power to eighty-three newly created departements, which were roughly equal in size and uniform in their organization. Each departement was further divided into districts, cantons, and communes. Originally, each departement elected its own officials, but eventually these units became tools of the central government.[7]

The Assembly declared that all church property was at the “disposition of the nation.” The government then issued bonds, called assignats, that were secured by the value of the land. Later, all property owned by emigrants to France were also declared to be national lands. These securities were tradable, and functioned for a while as a paper currency.   As the volume of assignats increased, so did inflation. By 1790, the Assembly required all sitting priests and bishops to take an oath of submission to the government. The bishops overwhelming refused to do this, but about half of the parish priests took the oath. Many clerics left the country, and about two-thirds of the country’s military officers resigned their commissions. As dissent became more prevalent, the government attempted to control the press. More radical factions began to subvert the role of the elected assembly, arguing that demonstrations, petitions, and public protests were superior methods of expressing the will of the people.[8]

Though his powers were limited, the king was still formally the head of state until August of 1792. The country was facing armed resistance from without and within, and more radical elements were gaining power.  After militants stormed the royal palace in Paris, the Assembly suspended the king. Immediately afterward, more than half of the Assembly’s deputies fled the city. As Prussian troops advanced toward the capital, French troops marched out to face them. With much of the elected government gone and most of the military absent from the city, mobs took over the city’s prisons, held sham trials, and killed over a thousand inmates, almost half the local prison population. A National Convention was held, which had as its first order of business the determination of the fate of the king. The Convention unanimously ruled that the king was guilty of treason, and by a much closer vote ordered his execution. Later his Austrian-born wife, Marie Antoinette, was also sent to the guillotine. With each bloody act, the revolution generated more resistance, and as more officials fled the government, or were imprisoned for their perceived disloyalty, the more radical the remaining officeholders became. Ultimately, some of the more blood-thirsty of the revolutionaries, such as Maximilien Robespierre, fell out of favor and were executed themselves without trial.[9]

After Robespierre’s death, the National Convention designed a new, somewhat more conservative constitution in 1795. This new government had a bicameral legislature and a plural, five-member executive called the Directory. Each director was supposed to serve one-year terms. The short duration of the Directory and the plural nature of its membership were not in keeping with Hamilton’s views regarding an ideal executive branch. The new government was beset with dramatic inflation and serious military threats, as well as challenges from radical dissidents. The legislature ultimately forced out four of the five directors. The new directors looked to form a new kind of constitution to provide stability in 1799. This new constitution provided for three ruling consuls, but only the first held substantial power. The constitution was approved by plebiscite. As first consul, the directors eventually chose a young, military hero who had managed to lead French armies to victory despite a depleted officer corps and a mass of enlisted soldiers who were recruited through a very unpopular conscription process. This person’s name was Napoleon Bonaparte. He was initially named consul, but soon made clear that he wished to exceed his constitutional limits. By 1804, Napoleon was named emperor by several government agencies and subsequently was approved as emperor in a national plebiscite.[10]   Napoleon was to wield more concentrated power than any extant monarch in the world. His rise to power demonstrates both the failure of France’s constitutional design and its commitment to enforce constitutional provisions.

James C. Clinger is a professor in the Department of Political Science and Sociology at Murray State University. Dr. Clinger teaches courses in state and local government, Kentucky politics, intergovernmental relations, regulatory policy, and public administration. Dr. Clinger is also a member of the Murray-Calloway County Transit Authority Board and a past president of the Kentucky Political Science Association. He currently resides in Hazel, Kentucky.

[1] Lutz, Donald S. “The Relative Influence of European Writers on Late Eighteenth-Century American Political Thought.” The American Political Science Review 78, no. 1 (1984): 189–97. https://doi.org/10.2307/1961257.

[2] Articles of Confederation, Article IX

[3] Articles of Confederation, Article IX

[4] The Federalist Papers, Number 38

[5] The Federalist Papers, Number 70

[6] Encyclopedia Britannica, French Revolution.  https://www.britannica.com/event/French-Revolution. Accessed July 10, 2022.

[7] Encyclopedia Britannica, Restructuring France.  https://www.britannica.com/place/France/Restructuring-France.  Accessed July 10, 2022.

[8] Ibid.

[9] Ibid.

[10] Ibid.

 

Click here for American Exceptionalism Revealed 90-Day Study Schedule
Click here to receive our Daily 90-Day Study Essay emailed directly to your inbox

Guest Essayist: Adam Carrington


World history displays many instances of political rule by one person. We can point to ancient instances such as Julius Caesar or modern ones like Joseph Stalin. Napoleon Bonaparte ranks among the most famous of these men. He rose in the ranks of the French army during the 1790s by showcasing his brilliant military mind on the battlefield. He then expanded beyond a generalship to become France’s First Consul starting in 1799, then its Emperor beginning in 1804. Only his eventual defeat at Waterloo finally stopped his ever-increasing power.

Napoleon’s success in particular may tempt some to support the political rule of one. Unencumbered by others, this man first conquered France, then nearly did so to the rest of Europe. He instituted a legal code in his name that formed the basis for the modern French bureaucracy (and influenced many other governmental systems). One might see his example and think that one man can get much done if given the authority. We may not see Napoleon as acting justly. However, if the right man with the right principles got his power, then he could do much good.

We should resist this temptation. Our American system of government rejected rule by one man or even by one institution filled with men for a reason. Revisiting those reasons reminds us of the wisdom of that choice.

First, we must remember the famous quote of Lord Acton, a Nineteenth century British politician and historian. He declared, “All power tends to corrupt and absolute power corrupts absolutely.” The reason power tends to corrupt is not merely the enticement it holds to do ill. James Madison in Federalist #51 noted that men were not angels. He made sure to include in that appraisal those persons who hold governmental office. Power corrupts because human beings are fallible. They possess in themselves the temptation to abuse authority, to help themselves and their friends while hurting their enemies. The more power they can wield, the harder to resist the allure of using it for nefarious ends. Thus, one might better say that power reveals and nurtures corruption, a point the American Founders understood well and sought to address.

Our system of government does so by taking political power and dividing it in two ways. First, we divide government powers within a government. We call this mechanism separation of powers. We give one institution the power to make laws, another to enforce them, and still a third the authority to interpret and apply laws to legal disputes. The Founders hoped that this system would make for effective government that did good things. They also hoped the system would moderate the excesses of human nature. It would do so less by trying to remake human beings, something the Founders thought impossible and itself a temptation to exercise too much corrupting power. Instead, they hoped that they could channel human ambition, human love for power, in ways that offset one another. The branches would exercise checks and balances on their sister institutions. If one person or group gained too much authority, the others possessed means to keep us from falling into rule by one man or one group of persons.

But the rejection of one-man rule went beyond stopping moral vice from reigning. The Founders understood that brilliant humans come along from time to time. We were blessed during their time with a reservoir of such brilliance beyond a normal generation of human beings. Thomas Jefferson, Alexander Hamilton, and James Madison only scratch the surface of the number of great men who lived, thought, and acted in America’s fight for independence and her subsequent struggle to establish a lasting republic.

However, despite their best intentions, none of the Founders got everything right. They each had blind spots intellectually, as all humans do. Some even had moral ones to accompany the intellectual. However, we suffer little from those blind spots in our form of government. We do not because we do not have one founder. We have many. While some political communities had a first, sole lawgiver, we had the Continental Congresses and the delegates to the Convention of 1787. The Bible says that “iron sharpens iron.” So these men sharpened one another’s ideas, refining them in constructing our principles and our institutions. By that combined wisdom, they built a more just and a more lasting system of government. They did so in a way a Napoleon, ruling alone, could not.

That all said, we did have one man who towered above the rest during our Founding. That man was George Washington. He commanded our armies to victory in the Revolutionary War. He served as the unanimous choice of the country to be our first president. He could have been a Napoleon. He might have established himself as the only ruler of the country, making our system dependent on his person. He did not. Instead, he focused his mighty efforts always to build a system of government. He fought for principles that would outlive him and his generation. And, when he had finished his part of these tasks, he did what many found unthinkable: he gave up power. He returned to his home a citizen while the republic continued to operate without him.

This greatness we never saw in Napoleon. Upon his death, Napoleon is reputed to have said about France, “they wanted me to be their Washington.” In other words, they wanted him to exercise power, then willingly give it up for the country’s sake. This he did not do. It seems his own ambitions made such a choice impossible for him.

Each year, we celebrate our independence on the 4th of July. Let us express our thanks that we did not and do not live under a Napoleon, that we have and continue to reject rule by one person. And let us further celebrate our one indispensable man, the one who ruled and gave up that rule so his country would last. Let us celebrate our anti-Napoleon, our George Washington.

Adam M. Carrington is an Associate Professor of Politics at Hillsdale College. There, he teaches on matters of Constitutional law, American political institutions, and separation of powers. His writing has appeared in such popular forums as The Wall Street Journal, The Hill, National Review, and Washington Examiner. His book on the jurisprudence of Justice Stephen Field was published in 2017 by Lexington. Carrington received his B.A. from Ashland University and his M.A. and Ph.D. from Baylor University. He lives in Hillsdale with his wife and their two daughters.

 

Click here for American Exceptionalism Revealed 90-Day Study Schedule
Click here to receive our Daily 90-Day Study Essay emailed directly to your inbox

 

Guest Essayist: Daniel A. Cotter
Storming of the Bastille 1789 by Jean-Pierre Houël, French Revolution


While the drafting of the Constitution of the United States and the French Revolution overlapped, some of the wisdom and differences in the two revolutions help to explain a U.S. Constitution that is designed to prevent regime failure.

One element different between the two revolutions was geographic. Our American Revolution took place on our soil, far away and across the pond from our monarchy rulers, while the French Revolution took place within the country.

More fundamentally, the desired objectives were different in the two revolutions, and that in turn contributed to the ways in which the American Constitution contained provisions to address. The French focused on replacing or changing the existing government. The Americans, on the other hand, wanted to break away and form a government removed from Great Britain. With that in mind, starting with the Declaration of Independence, through the Revolutionary War, and culminating in the Constitution in 1787, the founding fathers inserted wisdom into the form of government and the United States Constitution to help prevent failures they observed in French government.

Learning also from the shortcomings of the Articles of Confederation, which were ratified in 1781 and remained in effect until the Constitution was ratified in 1789, the designers of the Constitution insisted upon branches and a robust system of checks and balances, something lacking in the French structure. The Federalist Papers #51 makes this of vast importance for consideration of the Constitution (emphasis added):

“TO WHAT expedient, then, shall we finally resort, for maintaining in practice the necessary partition of power among the several departments, as laid down in the Constitution? The only answer that can be given is, that as all these exterior provisions are found to be inadequate, the defect must be supplied, by so contriving the interior structure of the government as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places. Without presuming to undertake a full development of this important idea, I will hazard a few general observations, which may perhaps place it in a clearer light, and enable us to form a more correct judgment of the principles and structure of the government planned by the convention. In order to lay a due foundation for that separate and distinct exercise of the different powers of government, which to a certain extent is admitted on all hands to be essential to the preservation of liberty, it is evident that each department should have a will of its own; and consequently should be so constituted that the members of each should have as little agency as possible in the appointment of the members of the others. Were this principle rigorously adhered to, it would require that all the appointments for the supreme executive, legislative, and judiciary magistracies should be drawn from the same fountain of authority, the people, through channels having no communication whatever with one another. Perhaps such a plan of constructing the several departments would be less difficult in practice than it may in contemplation appear. Some difficulties, however, and some additional expense would attend the execution of it. Some deviations, therefore, from the principle must be admitted. In the constitution of the judiciary department in particular, it might be inexpedient to insist rigorously on the principle: first, because peculiar qualifications being essential in the members, the primary consideration ought to be to select that mode of choice which best secures these qualifications; secondly, because the permanent tenure by which the appointments are held in that department, must soon destroy all sense of dependence on the authority conferring them. It is equally evident, that the members of each department should be as little dependent as possible on those of the others, for the emoluments annexed to their offices.”

Conclusion

The United States Constitution’s wisdom is shown in many ways, including with the checks and balances that exist in the Constitution. The careful drafting in 1787 has helped to ensure a continued Constitution that has separations of powers built in and that has ensured that, unlike France and the uncertainty of its revolution and subsequent history, our grand experiment continues 235 years later.

Daniel A. Cotter is Attorney and Counselor at Howard & Howard Attorneys PLLC. He is the author of The Chief Justices, (published April 2019, Twelve Tables Press). He is also a past president of The Chicago Bar Association. The article contains his opinions and is not to be attributed to anyone else.

 

Click here for American Exceptionalism Revealed 90-Day Study Schedule
Click here to receive our Daily 90-Day Study Essay emailed directly to your inbox

Guest Essayist: J. Eric Wise


The motto of the French Republic is Liberté, égalité, fraternité, meaning liberty, equality, brotherhood.

What’s not to like?  Pass the baguettes and butter.

It is derived from the motto of the French Revolution, which has a little something extra: Liberté, égalité, fraternité ou la mort.

Now, wait a minute.  That means liberty, equality, brotherhood or death.

The French Revolution distinguished itself in the final category of its motto. No sooner had the First Republic been created than an eruption of accusations of treason, anticlerical sentiment, massacres and public executions took place. Not satisfied to overturn the ruling caste that had governed from Versailles, and the chateaus and churches of France, the revolutionaries set about to kill them.

In France 1793, no less than 16,000 death sentences were handed down, and 10,000 were sent to prison to die there, in most cases without a trial. Ou la Mort became the Terror. Little explanation is needed as to why “ou la mort” is now gone from the national motto.

The United States took a very different path. That is not to say there were not hard feelings. When the fighting ended and the American Revolutionary War came to a close in 1783, some 70,000 loyalists were expatriated to Britain and the remaining North American British colonies in places like coastal Quebec Prince Edward Island, and Nova Scotia.  But they were not killed.

They were not even really persecuted. Always hungry for people, as soon as the loyalists left, the United States made efforts to recruit them back, supposing their industry and connections, harnessed in a spirit of reconciliation, could aid the new nation in finding its feet.

So, we ask ourselves, what was the difference between the French Revolution and the American Revolution that one should culminate in a river of blood and another in practical reconciliation and a compact, the United States Constitution, which has remained the charter of the new nation for 250 years?

The first place to look is the Declaration of Independence. The principles of the Declaration had percolated in American thought for 100 years or more before their expression in that revolutionary document.  As Calvin Coolidge noted in his famous July 4 speech,

“A very positive echo of what the Dutch had done in 1581, and what the English were preparing to do, appears in the assertion of the Rev. Thomas Hooker, of Connecticut, as early as 1638, when he said in a sermon before the General Court that—‘The foundation of authority is laid in the free consent of the people.’ ‘The choice of public magistrates belongs unto the people by God’s own allowance.’”

The American Revolution was rooted not in deduction from mere abstract principle but by a process of induction from a practice spanning several generations. No understanding of the principles of equality and rights to life, liberty and the pursuit of happiness could be easily twisted into a murderous rage as would happen in France.

We see this in the words of Federalist #1:

“It has been frequently remarked that it seems to have been reserved to the people of this country, by their conduct and example, to decide the important question, whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force.”

The meaning of the abstract principles of the Declaration of Independence was universally understood to impose a requirement of deliberation, not execution of enemies, on the new government. It was so understood because that was the habit of the American people to think of it that way. They would no sooner leave the house without their pants than think to solve a political problem other than by organizing, deliberating and deciding by some method of majority rule.

The new Constitution which was to be adopted constituted a second appeal to necessity. The Articles of Confederation had been, truly, an abject failure. The country was unable to control debtor and creditor contests and its economy was moribund, a victim of both the violence of these disputes and the weakness of its central government.

However, the new nation chose not to turn upon itself and its various perceived internal enemies but to debate over a new Constitution, to be ratified by consent through a new ratification process, that was not contemplated by the Articles of Confederation, and in fact violated its express terms. In Federalist #40, Publius emphasizes the need to alter and abolish the dysfunctional government by a process of consent rather than force.

From this spirit, a new government was brought forth based on the notion of deliberation and consent, structured around mechanisms to harness the baser incentives of men to promote the habits of deliberative government.

When Benjamin Franklin identified the new form as “a republic, if you can keep it” he implied that the continual fostering and renewal of the habits of deliberative government was the spirit of the American Revolution and the essential ingredient for the continued success of the United States.

J. Eric Wise is a partner in the law firm of Alston & Bird.

 

 

Click here for American Exceptionalism Revealed 90-Day Study Schedule
Click here to receive our Daily 90-Day Study Essay emailed directly to your inbox

Guest Essayist: Tony Williams


At first glance, the American and French revolutions seem to be closely connected in an “age of democratic revolutions.” The sister revolutions seemed to challenge and undermine monarchy in favor of popular self-rule and liberty. More fundamentally, however, the revolutions’ contrasting views of human nature shaped differing political philosophies, regimes, and cultures.

The American Founders’ thinking about human nature and government was guided by differing strains of thought from ancient philosophy, the English tradition, the British Enlightenment, and Protestant Christianity. As a result, they developed a realistic understanding of vice and virtue, sin and goodness. As James Madison wrote in Federalist #51, “What is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary.”

The French revolutionaries followed the thinking of the more radical French Enlightenment and particularly that of Jean-Jacques Rousseau. Rousseau believed that humans were naturally good and perfectible but were corrupted by social institutions including absolute government, the churches, and urban society; human beings would only be free and enjoy their natural equality by tearing down those institutions.

As the Declaration of Independence indicated, the American Founders believed the Lockean idea that humans had natural rights such as life, liberty, and the pursuit of happiness and were capable of governing themselves in a republic. However, their corruptible nature meant that checks and restraints were necessary. As Federalist #51 asserted, “experience has taught mankind the necessity of auxiliary precautions.”

Influenced by the thinking of Montesquieu and by their experience under the Articles of Confederation, the Founders built in numerous auxiliary precautions into their United States Constitution to divide and constrain power and protect against human ambitions and passions. They included the principles of separation of powers, checks and balances, federalism, and bicameralism in constructing their novus ordo seclorum, a “new order for the ages.” But it was a new order built upon the history, experience, and wisdom of the past.

The French revolutionaries created a very different kind of government and consequently had a different outcome. They sought to break with the corrupt government and religious institutions of the past that preserved the privileges and wealth of the royal government, the feudal nobility, and the clergy. The monarchy survived for only a few years after 1789. It was limited by the Declaration of the Rights of Man and then by a republican constitution until Louis XVI was executed in early 1793. The national legislature was a government lacking a system of constitutional separation of powers and other principles. Instead, the one-house legislature served effectively the only branch of government that would surmise the “general will” of an enlightened people.

For statesmen like the British Edmund Burke, who wrote Reflections on the Revolution in France, the outcome was all too predictable early in the French Revolution. The violence erupted almost immediately as revolutionaries tore down the corrupt institutions of the past. The revolution began with the storming of the Bastille on July 14, 1789, attacking that symbol of political repression. Paris quickly became an armed camp while in the countryside, peasants went on a rampage against nobles and their feudal privileges murdering them, burning down their estates, and destroying their titles in the Great Fear that fall.

After closing the monasteries and plundering their wealth, the government made the clergy agents of the state with the 1790 Civil Constitution of the Clergy. In 1792, the revolutionaries broke into jails and murdered thousands of priests, nuns, and nobles in an orgy of bloodshed and drownings.

Hundreds of thousands died in a French civil war when government suppressed revolts in the Vendee, and millions died across Europe when the French revolutionaries went to war to spread the fire of revolution to tear down oppression everywhere.

Finally, Maximilien Robespierre and the Committee of Public Safety guillotined some 3,000 “enemies” in Paris and had as many as 50,000 executed throughout France during the Reign of Terror from 1793-1794. It was not an aberration but rather a logical outcome of the violence directed against the old regime from the start of the revolution.

American Founders and citizens were deeply divided about the French Revolution in the early republic. Most Americans initially praised the French Revolution as an outgrowth of the American Revolution. Toasts were made, parades were held, and tri-color hats were doffed.

However, the American reaction to the French Revolution contributed to the growing political and ideological divisions in the early republic that led to the development of political parties in the United States. Federalists and Democratic-Republicans split over the foreign policy issue.

Thomas Jefferson, who was an observer and sometimes participant in early revolutionary events in France as a diplomat, was the most ardent supporter of the French Revolution. Taken by radical French Enlightenment thinking, he enthusiastically praised the execution of Louis XVI as a “criminal” and wrote his shocking “desolation letter” while turning a blind eye to the Terror.

Jefferson shockingly wrote with no small amount of hyperbole: “The liberty of the whole earth was depending on the issue of the contest….[and] rather than it should have failed, I would have seen half the earth desolated. Were there but an Adam and Eve left in every country, and left free, it would be better than as it is now.”

Other Founders were more sober in their assessment. Alexander Hamilton wished, “Would to heaven that we could discern in the Mirror of French affairs, the same humanity, the same decorum, the same gravity, the same order, the same dignity, the same solemnity, which distinguished the course of the American Revolution.”

On the other hand, John Adams had also been a diplomat in France and other European countries during the 1780s and was less swept up in revolutionary currents in France. Adams’ political writings through the 1780s focused on constitutional balance in the separation of powers. As early as 1790, he predicted that the unicameral French legislature “must involve France in great and lasting calamities” since it was rooted in a flawed understanding of human nature and political philosophy.

The American and French Revolutions left a contrasting legacy for the modern world. The American Revolution and the principles of natural rights republicanism and constitutionalism served as an exceptional model for the world. The French Revolution unleashed the forces of secular nationalism that shaped the violent European twentieth century.

Tony Williams is a Senior Fellow at the Bill of Rights Institute and is the author of six books including Washington and Hamilton: The Alliance that Forged America, with Stephen Knott. Williams is currently writing a book on the Declaration of Independence.

 

Click here for American Exceptionalism Revealed 90-Day Study Schedule
Click here to receive our Daily 90-Day Study Essay emailed directly to your inbox

Guest Essayist: Andrea Criswell


When in the course of human life, it becomes necessary for a mother to dissolve the political bands between a child and their selfish ways, and to take full responsibility for civilizing her child and assume her powers within her home, the separate and equal station which the Laws of Nature and Nature’s God entitle them, a deep realization occurs, if she is not willing to bring virtue and civility to the next generation, no one will. This is the beginning of a republic, in each home. Ironically, this scenario leads the reader to believe that the mother is our government and the child is her citizens, and yet it is the other way around. The greatest attribute of the Constitution of the United States of America reflects her citizens as the parents, the givers of life, liberty and the pursuit of happiness.

How do people collectively provide for themselves liberty? An infrastructure, a culture valuing self-government is the only way. A republic at the core. As a human bears the image of their Creator in spirit and their parents in physical appearance, a republic mirrors its founders in the design of practical infrastructure as well as the “DNA” of heart and motive. In America, this “DNA” was the balance between tyranny and anarchy. Resembling homeostasis in the body, the boundaries given to the government by the Founders exemplified the potential for health for its people. Such is a republic, who welcomes this balance, not admonishing correction nor romanticizing chaos, experiences health and well-being.

Welcoming balance, the United States Constitution stands as a reminder that homeostasis can be achieved, not effortlessly, but attainable. It requires maturity to sustain the direction and maintain the right course. It requires self-government of individuals. Abstaining from the vices of power, the people directed by the Founders’ words stay the course. Imperfect men, who could not right all wrongs, understood that a virtuous nation required leadership from virtuous citizens. Three men considered, John Adams, Thomas Jefferson, and John Taylor of Caroline, were willing to protect the ramparts against the tyranny of England, for during their lifetime a government was born, one that would require maturing so that all its members, male and female, light skinned and dark skinned, Christian and non-Christian would find freedom on the same soil.

John Adams understood the unique situation in which they found themselves – to choose their own government. He passionately stated, “While I live, let me have a country, a free country.” It was this vision that defined his life. And yet, he was a Federalist, believing that “the greatest dangers to any polity came from unbridled democracy and an unrestrained aristocracy capable of becoming an oligarchy.” (1) He wanted a strong executive branch to steer the nation like a parent. In his “Discourses on Davila,” he recognizes both the need and the concern for ambitious men. As a republic, the people would parent, and yet Adams wrestled with the need for a strong head. Adams believed that America needed ambitious, determined men held in check by humility, to lead.

Thomas Jefferson understood that real power flows from the consent of the governed, as stated in The Declaration of Independence. A government, whose precedent is fundamental law, would simply reflect the will of the people. Without precedent, no other government in history had modeled natural law. So therefore, a prerequisite of government needed to be established, one in which divine law was part of the culture and understood by all. Believing that America needed a limited government, Jefferson’s greatest contribution was precision rhetoric, clearly communicating that the government would be limited through the state constitutions and the ratifying of the Constitution.

John Taylor of Caroline entered public service to uphold republican values. He did not agree with fixed social order, rather in popular sovereignty, the right each man possessed to govern himself. He was most concerned with a decline of virtue because of power, and held character as the sole anchor for the advancement of America. For Taylor, the laws of nature suggested political equality, and therefore all men were created equal. Defending freedom, Taylor focused on ending tyranny through his Anti-federalist semantics. Historically, there are those born to “hold a post” for others, while in their own right still very flawed. To his own demise Taylor profited from slavery, and while he considered it an evil, he did not consider ending slavery as part of popular sovereignty. Holding the post, Taylor believed America needed to be led by the laws of nature, sustaining personal sovereignty, and yet he did not have the revelation of sovereignty for all.

Disregarding the vision of Adams, the precision of Jefferson and the focus of Taylor would be to disregard the imperfect men who helped pen our most perfect document. The providential boundary lines of the Constitution recognize the need for a strong executive, legislative and judicial branch, all three balancing one another, and the Bill of Rights as the reminder that Congress shall not behave like an immature child. Although these men did not end slavery, they helped form the republic that would empower a people to do so. In the words of John Francis Mercer, a delegate to the Federal Convention from Maryland, said on the floor of the Convention, “It is a great mistake to suppose that the paper we prepare will govern the United States. It is the men whom it will bring into the government and interest in maintaining it that is to govern them. The paper will only mark out the mode and the form. Men are the substance and must do the business.” (2) Remarkable men, upholding a remarkable document, necessary then and now.

Andrea Criswell is a wife and mother of four, who teaches homeschool students in northwest Houston. A graduate of Texas Tech University and Asbury Theological Seminary, she teaches Christian Worldview classes, high school biology and a love for the United States Constitution. 

1. Taylor, James. “John Adams: Life Before the Presidency.” Miller Center, https://millercenter.org/president/adams/life-before-the-presidency. Accessed 20 May 2022.

2. Corwin, Edward S. “Thomas Jefferson and the Constitution.” CORE, https://core.ac.uk/download/pdf/217205672.pdf. Accessed 20 May 2022.

 

Click here for American Exceptionalism Revealed 90-Day Study Schedule
Click here to receive our Daily 90-Day Study Essay emailed directly to your inbox

Guest Essayist: Gary Porter
"A republic, Madam, if you can keep it."


Nations rise and nations fall. Some would call this the cycle of life, writ large; others would simply offer that nothing is certain beyond death and taxes, certainly not the perpetuity of a nation. We are 235 years into this experiment in self-government we call the United States, and we’ve outlasted the average age of a republic, barely.[i] Some would thus suggest we are living on borrowed time. Are we? The Roman Republic lasted nearly 500 years (509 BC to 27 BC). Is it likely or even possible that ours will as well?

Alexander Fraser Tytler, aka Lord Woodhouselee (1747-1813) was a Scottish historian and professor at the University of Edinburgh. He identified stages which all societies will inevitably experience. A society will proceed “from bondage to spiritual faith; from spiritual faith to great courage; from courage to liberty; from liberty to abundance; from abundance to selfishness; from selfishness to complacency; from complacency to apathy; from apathy to dependence; from dependence back into bondage.” Not a very encouraging prediction.

If this is a true prediction of the life of a society (and I don’t suggest it necessarily is) it is tempting to place our American experiment somewhere on this timeline, perhaps we are currently progressing “from abundance to selfishness.” Whether America is “past its prime” has been the subject of debate for quite a while.

Certainly, there are clear signs of decline in America, but is this part of a predictable, inevitable cycle or is this a merely transitory observation?

America’s Founders certainly hoped their work would not be short lived. At the Constitutional Convention, John Dickinson had drafted an address to the delegates – which he appears to have never delivered – reminding them that: “We are not forming plans for a Day Month Year or Age, but for Eternity.” An eternity? Really? Would the proposed new plan of government they had labored over for four months even be given a chance at life? Nine states would have to ratify; would they?

A Republic, if you can keep it,” Benjamin Franklin’s immortal retort, suggests the Founders believed a republic was incapable of “keeping” itself, that human effort was required; but what sort of effort? By whom? How often?  So much uncertainty.

One point they seemed to be in agreement on, one ingredient they believed was necessary for a nation’s longevity was virtue, both public and private. The Founders said this innumerable times in innumerable ways. A sampling:

“…[N]o free government, or the blessing of liberty, can be preserved to any people but by a firm adherence to justice, moderation, temperance, frugality, and virtue, and by frequent recurrence to fundamental principles.” George Mason, Virginia Declaration of Rights, Section XV [1776].

“Public virtue cannot exist in a nation without private, and public virtue is the only foundation of republics. There must be a positive passion for the public good, the public interest, honour, power and glory, established in the minds of the people, or there can be no republican government, nor any real liberty: and this public passion must be superiour to all private passions.” John Adams to Mercy Warren, 1776.

“Is there no virtue among us? If there be not, we are in a wretched situation. No theoretical checks, no form of government can render us secure. To suppose liberty or happiness without any virtue in the people, is a chimerical idea. If there be sufficient virtue and intelligence in the community, it will be exercised in the selection of these men. So that we do not depend on their virtue, or put confidence in our rulers, but in the people who are to choose them.” James Madison, Speech in the Virginia Ratifying Convention, June 20, 1788.

“[A] free government, which of all others is far the most preferable, cannot be supported without virtue.” Samuel Williams, A Discourse on the Love of our Country, 1774.

“It is certainly true that a popular government cannot flourish without virtue in the people.” Richard Henry Lee to Colonel Martin Pickett, March 5, 1786.

“It is substantially true that virtue or morality is a necessary spring of popular government. The rule, indeed, extends with more or less force to every species of free government. Who that is a sincere friend to it can look with indifference upon attempts to shake the foundation of the fabric?” George Washington, Farewell Address.

But before we go further, let’s ensure we have a common definition of the word “virtue.”

Webster’s 1828 American Dictionary of the English Language, the go-to guide for founding era definitions, contains ten different definitions of “virtue.” The one I believe the Founders most often had in mind, the third in Webster’s list, read:

Moral goodness; the practice of moral duties and the abstaining from vice, or a conformity of life and conversation to the moral law. In this sense, virtue may be, and in many instances must be, distinguished from religion. The practice of moral duties merely from motives of convenience, or from compulsion, or from regard to reputation, is virtue as distinct from religion. The practice of moral duties from sincere love to God and his laws, is virtue and religion. In this sense it is true,”

If this “moral goodness” or “virtue” was so important to the success of a popular government, how was it to be instilled or created in the people?

First, by inspiring it in the people: “The only foundation of a free Constitution, is pure virtue, and if this cannot be inspired into our people, in a greater measure than they have it now, they may change their rulers, and the forms of government, but they will not obtain a lasting liberty.” John Adams, to Zabdiel Adams, 1776.

Second, through the education of children:

Wisdom and knowledge, as well as virtue, diffused generally among the body of the people, being necessary for the preservation of their rights and liberties, and as these depend on spreading the opportunities and advantages of education in the various parts of the country, and among the different orders of people, it shall be the duty of legislators and magistrates … to cherish the interest of literature and the sciences, and all seminaries of them.” John Adams, Thoughts on Government, 1776.

“A Bible and a newspaper in every house, a good school in every district–all studied and appreciated as they merit–are the principal support of virtue, morality, and civil liberty.” Benjamin Franklin.

“It is an object of vast magnitude that systems of education should be adopted and pursued which may not only diffuse a knowledge of the sciences but may implant in the minds of the American youth the principles of virtue and of liberty and inspire them with just and liberal ideas of government and with an inviolable attachment to their own country.” Noah Webster, On Education of Youth in America, 1790.

Since private and publick Vices, are in Reality, though not always apparently, so nearly connected, of how much Importance, how necessary is it, that the utmost Pains be taken by the Publick, to have the Principles of Virtue early inculcated on the Minds even of children, and the moral Sense kept alive, and that the wise institutions of our Ancestors for these great Purposes be encouraged by the Government. For no people will tamely surrender their Liberties, nor can any be easily subdued, when knowledge is diffusd and Virtue is preservd. On the Contrary, when People are universally ignorant, and debauchd in their Manners, they will sink under their own weight without the Aid of foreign Invaders.” Samuel Adams letter to James Warren, November 4, 1775.

Some parents took their educational responsibility quite seriously: “Our Little ones whom you so often recommend to my care and instruction shall not be deficient in virtue or probity if the precepts of a Mother have their desired Effect, but they would be doubly inforced could they be indulged with the example of a Father constantly before them.” Abigail Adams to John Adams, May 7, 1776.

Third, through their churches:

“It is the duty of the clergy to accommodate their discourses to the times, to preach against such sins as are most prevalent, and recommend such virtues as are most wanted. If publick spirit is much wanted, should they not inculcate this great virtue?” John Adams, Novanglus, no. 4.

Virtue was perishable; it needed to be continually “refreshed”: “When we are planning for posterity, we ought to remember that virtue is not hereditary.” Thomas Paine, Common Sense, 1776.

But even the best-laid plans to inculcate virtue in the people were not expected to have complete success, and the design of government must account for this: “A fondness for power is implanted, in most men, and it is natural to abuse it, when acquired.” Alexander Hamilton. “The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse.” James Madison, Speech in the Virginia Constitutional Convention, 2 December 1829. Even the most virtuous among them was to be watched for signs of moral decay: “The aim of every political constitution is, or ought to be, first to obtain for rulers men who possess most wisdom to discern, and most virtue to pursue, the common good of the society; and in the next place, to take the most effectual precautions for keeping them virtuous whilst they continue to hold their public trust.” James Madison, Federalist No. 57, 1788.

Americans today have lost sight of the idea of virtue; it is not taught in public schools, our government would like to count on it, but seems afraid to even mention the word, and our churches are fast joining the ranks of those who insist all truth is relative including moral truth. Violent crime is generally rising, private property disrespected and voices in the public square are becoming increasingly strident. If John Adams was right, that “Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other,” there will come a time in this country, perhaps not long off, when the Founders’ Constitution will simply prove ineffective in governing us. There is still time to avoid that outcome, but it will require the conscious efforts of patriots across this great land.

“A people may prefer a free government; but if from indolence, or carelessness, or cowardice, or want of public spirit, they are unequal to the exertions necessary for preserving it; if they will not fight for it when directly attacked; …they are more or less unfit for liberty.” John Stuart Mill

Gary Porter is Executive Director of the Constitution Leadership Initiative (CLI), a project to promote a better understanding of the U.S. Constitution by the American people. CLI provides seminars on the Constitution, including one for young people utilizing “Our Constitution Rocks” as the text. Gary presents talks on various Constitutional topics, writes periodic essays published on several different websites, and appears in period costume as James Madison, explaining to public and private school students “his” (i.e., Madison’s) role in the creation of the Bill of Rights and the Constitution. Gary can be reached at gary@constitutionleadership.org, on Facebook or Twitter @constitutionled.

[i] Alexander Fraser Tytler, aka Lord Woodhouselee, calculated the average term of a republic to be 200 years.

 

Click here for American Exceptionalism Revealed 90-Day Study Schedule
Click here to receive our Daily 90-Day Study Essay emailed directly to your inbox

Guest Essayist: Joerg Knipprath
John Adams, author of “A Defence of the Constitutions of Government of the United States of America.”


“Virtue” and “republic” have long been connected to each other among philosophers of politics. The connection was frequently asserted in the rhetoric of Americans during the founding. Indeed, it was while states were writing constitutions that these ideas were more rigorously investigated and an increasingly sophisticated understanding emerged. The most widely read source on the experiences of republics and the importance of virtue was Plutarch’s Lives, which contained the biographies of Greek and Roman statesmen. Many intellectuals also read primary sources, such as Aristotle, Cicero, and Polybius, and interpreters of those sources, such as Machiavelli, Montesquieu, and various 18th century English political essayists. These investigations led to a political conundrum. Most Americans believed that mankind’s actions were driven by base desires, such as avarice, gluttony, and lust. Yet the success of republics had always been said to rest on public virtue, the requirement that the rulers and the people overcome their passion for personal gratification and act for the benefit of the community, “res publica.” Moreover, the wisdom received from ancient writers postulated that public virtue was derived from private virtue. The task became to reconcile this tension between private passions and republican virtue.

Three ideological theories of republicanism emerged, with attendant differences in their conceptions of private and public virtue and the connection between them. These three conceptualizations had significant geographic roots. One was an American version of classic republicanism, which might be called puritan republicanism. It is “positive” republicanism. The proponents looked to the firm hand of government to promote both aspects of virtue, private and public, and to insure their continued interrelation. It was founded in the religious tradition and political experience of New England communities, although its influence was not confined there. One of the best exponents of that tradition and its republican significance was John Adams.

Another was agrarian republicanism, which coalesced somewhat later, and was rooted in the experience of the South, especially its largest and wealthiest state, Virginia. Agrarian republicans also accepted the need rigorously to inculcate private virtue, but they were less optimistic about the conviction that private virtue assured public virtue. At the very least, they were skeptical that sufficient public virtue might be realized among those who would gain political influence. That skepticism was particularly acute when the matter became who would control the distant general government and thus be most removed from effective supervision by the people.

Best, then, not to rely on virtue among the rulers, but to look for other means to limit their ability to cause harm to the republic. If private virtue of the ruler or the people was inadequate to assure public virtue, the rulers’ self-interest must be channeled to serve the public good. James Madison worked out these ideas in his constitutional ideology, which found its way into basic structures in the United States Constitution. Madison was not alone, and he was not the most rigorous expositor of agrarian republicanism. That title goes to John Taylor of Caroline.

A third approach was national republicanism, represented by Alexander Hamilton as its most prominent ideological proponent and George Washington as its leading public figure. In many ways their views complemented those of the agrarians that private virtue was a necessary but also a regrettably flawed guardian of the success of republics. However, there was a crucial difference. Government would have a much more active role in using incentives to create conditions through which republican virtue of the public sort might be fostered. Moreover, republican virtue was not limited to those connected to the land, but extended to those engaged in commercial and even manufacturing enterprises. Hamilton, after all, was not part of the landed gentry, like Adams, or the Southern planter class, like Taylor. National republicanism was based in the emerging commercial centers, especially those of the mid-Atlantic states.

John Adams’s major work on constitutional government and republicanism was A Defence of the Constitutions of Government of the United States of America, a treatise on the emerging American constitutionalism with its emphasis on checks and balances of governmental powers. But Adams was also a prolific writer of letters to numerous correspondents. Many years before he wrote in his 1798 response to the Massachusetts militia, “Our government was made only for a moral and religious people,” he wrote to the chronicler of the period Mercy Otis Warren that republican government could survive only if the people were conditioned “by pure Religion or Austere Morals. Public Virtue cannot exist in a Nation without private, and public Virtue is the only Foundation of Republics.” Sounding the theme of positive classic republicanism, he continued, “There must be a positive Passion for the public good, the public Interest, Honor, Power, and Glory, established in the Minds of the People, or there can be no Republican Government, nor any real liberty.” [Emphasis in the original.]

In light of man’s fallen nature and his helpless soul’s inclination to sin, a firm hand was needed. Hence, three New England states had an official church, the Congregational Church, heir to the Puritans. Moreover, a Stoic virtue of private simplicity and public duty was cultivated, not the least by intrusive sumptuary laws. Such laws, passed in the name of protecting the people’s morals and sometimes dressed up in broader cloaks of liberty and equality, restricted various luxuries and excessive expenditures on jewelry, clothing, victuals, and entertainment. Adams, in his 1776 book Thoughts on Government, touted the benefits of such laws, “[The] happiness of the people might be greatly promoted by them….Frugality is a great revenue, besides curing us of vanities, levities, and fopperies, which are real antidotes to all great, manly, and warlike virtues.”

The historian Forrest McDonald, in his invaluable book Novus Ordo Seclorum, provides details about the constitutional and statutory sources of such laws. For example, Article XVIII of the Massachusetts Bill of Rights urged a “constant adherence” to “piety, justice, moderation, temperance, industry and frugality [which] are absolutely necessary to preserve the advantages of liberty.” Legislators and magistrates must exercise “an exact and constant observance” of those principles “in the formation and execution of the laws.” None other than John Adams had drafted that document in the Massachusetts convention. Other states had similar provisions. At the Philadelphia Convention, George Mason of Virginia sought to grant Congress the power to enact sumptuary laws, but his proposal was defeated.

Adams also lauded laws that resulted in the division of landed estates, because he perceived such laws as promoting relative equality of property ownership. Adams termed it the “mediocrity of property” on which liberty depended. This sentiment, drawn from an ancient republican pedigree, put him in good company with American republicans of other stripes. Indeed, “agrarian republicans” were, if anything, even more militant than Adams in their adoration of land ownership as the bulwark of republican virtue and personal liberty. Thomas Jefferson spoke for most Americans in his 1785 book Notes on the State of Virginia, when he declared that “those who labor in the earth are the chosen people of God if ever He had a chosen people, in whose breasts He has made His peculiar deposit for substantial and genuine virtue.” He expressed similar views in other writings. During the debate over the subsequent Louisiana Purchase during his administration, Jefferson was able to overcome his constitutional qualms with the satisfaction that the United States had acquired sufficient land to guarantee its existence as a republic of yeoman farmers and artisans for many generations hence.

As a theorist of agrarian republicanism, Jefferson was thin gruel compared to John Taylor, a Virginian planter, lawyer, and politician, who served off-and-on as Senator. To distinguish his branch of the family, Taylor is usually referred to by his birthplace, Caroline County. The aphorism “That government is best which governs least,” has often been attributed to Jefferson, although it appears first in Civil Disobedience by Henry David Thoreau in 1849. If, however, one might at least grant Jefferson the same sentiment, this aphorism even better describes Taylor’s philosophy. In particular, his 1814 book An Inquiry into the Principles and Policy of the Government of the United States sets out a systematic philosophy for land as the basis for personal happiness and republican vitality. Land gives its owners sustenance and trains them to self-reliance, which produces independence, which, in turn, is the source of liberty. A key to maintaining that independence is the right to keep arms.

The (mostly) Southern agrarian republicans shared with their (mostly) New England classic republican compatriots a belief that widely-shared land ownership is most conducive to private virtue. However, they parted ways on the connection between private and public virtue as crucial to the survival of republican government. Taylor wrote, “The more a nation depends for its liberty on the qualities of individuals, the less likely it is to retain it. By expecting publick good from private virtue, we expose ourselves to publick evils from private vices.” While a republican system, as a whole, is strongest when it rests on a broad base of a virtuous and civically militant citizenry, it is risky to rely only on that condition to produce virtuous politicians. Homo politicus is better known for seeking power for personal gain and influence over others than for personal sacrifice and care for the general welfare. As described by the modern school of “public choice” theory, politicians are self-interested actors, whose actions are best explained by their number one goal, to get re-elected. In addition, the puritan approach of an intrusive government which would police private behaviors raised red flags for the agrarians.

Taylor and other agrarians distrusted government generally, but the more removed from direct and frequent popular control officials were, the greater the danger to the republican form. The good news was that sufficient public virtue could be produced even if, for whatever reason, private virtue was lacking in those who would govern. To that end, it became incumbent on those who framed constitutions to recognize the inherently self-interested nature of politicians and to harness that self-interest through constitutional structures which would simultaneously authorize and limit the power of government officials of all types. Politicians would “do the right thing” not because they were sufficiently trained to private virtue, but because it would serve their own self-interest in preserving their positions.

Taylor’s prescription was not novel. The Scottish philosopher David Hume began his 1742 essay, “Of the Independency of Parliament,” by declaring, “Political writers have established it as a maxim that, in contriving any system of government and fixing the several checks and controls of the constitution, every man ought to be supposed a knave and to have no other end, in all his actions, than private interest. By this interest we must govern him and, by means of it, make him, notwithstanding his insatiable avarice and ambition, cooperate to public good.” The works of the charismatic and often controversial Hume were well known to educated Americans.

James Madison expressed these sentiments in a famous passage in Number 51 of The Federalist:

Ambition must be made to counteract ambition. The interest of the man must be

connected to the constitutional rights of the place…. 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.

Those “auxiliary precautions” were the structural checks and balances in the Constitution.

Various historians have noted the importance of Taylor’s contributions to American political theory, even lauding him as in some ways the best which America has produced. Although his vision was republican, it may better be characterized as a branch of classical liberalism or liberal republicanism. Note that the term “liberal” does not have the current political connotation. Unlike today’s version, the classic liberalism emerging during that period was directly tied to the individual’s liberty to live free from state-enforced mandates beyond the minimum needed for social stability.

Taylor was not the first skeptic about the classic Aristotelian and Ciceronian connection between private and public virtue reborn in the puritan republicanism of John Adams. The history of 18th-century Anglo-American ideas reveals influential predecessors, such as Bernard de Mandeville and, as mentioned earlier, David Hume. Mandeville wrote his satirical Fable of the Bees in 1705, a famous parody of English politics of the time. In the poem, he describes a thriving colony of bees, where each individual bee seeks to live a life of luxury and ease, a sentiment not disagreeable to Taylor’s Southern planter class. But this prosperous existence comes to an end when some of the bees begin to denounce the personal corruption caused by luxury and to call for a life of simplicity and virtue to be imposed. Many bees die, their hive becomes impoverished, and they live in a hollow tree, “blest with Content and Honesty.” He concludes,

Bare Virtue can’t make Nations live,

In Splendor; they, that would revive

A Golden Age, must be as free,

For Acorns, as for Honesty.

In short, personal vices, such as greed and ambition, generate public virtue of industriousness and prosperity. Similar ideas also infused the writings of an important contemporary of the American founders, the political economist Adam Smith.

Even more than Taylor, it was the adherents of an emerging “national republicanism” who agreed with Mandeville, Hume, and Smith. Although all persons are driven by their passions, not all passions are the same. Some, especially those who already have material riches, might be gripped by a simple desire for fame or honor, or by love of country. Moreover, a properly constructed constitution, produced by those few motivated by such nobler passions, might harness the baser passions of lesser politicians towards the public good. The men who met in Philadelphia for the specific purpose of drafting the Constitution might qualify as men whose primary, if not sole, passions were fame and love of country. For most, no immediate financial gain or personal political success was to be gained. Indeed, contrary to the progressive theory advanced in the early 20th century by the historian Charles Beard that economic self-interest was the driving force behind the Constitution’s adoption, it is well-established that delegates voted in favor of proposals which would, if anything, hurt their financial interests.

Such “good” passions, although they manifested a self-interest, also produced the public virtue necessary for republican government. It produced policies for the general welfare and in the interest of the public. The problem, of course, is that all politicians—and, indeed, bureaucrats of all kinds—routinely claim to be driven by a passion for public service, and that their policy proposals are in the public interest. A multitude of unelected non-governmental organizations and litigious law firms also claim the title “public interest.” Alas, to consider, for instance, who benefits from pay-outs in the typical class-action lawsuit, the reality rarely matches the professed public virtue. One never hears a politician say that a policy, no matter how nefarious and self-rewarding, is done for anything other than the noblest public purpose. Rare even is a politician as honest as the 19th-century New York Tammany Hall leader George Washington Plunkitt. He famously distinguished between “dishonest” and “honest” graft and was frank about his practice of the latter. Dishonest graft meant working solely for one’s own interests. Honest graft was to work for one’s own wealth, while simultaneously furthering the interests of one’s party and state.

The big problem, then, for the national republicans was to constrain those politicians who would in fact hold political offices for a longer time and with less-defined objectives than those who drafted the Constitution. George Washington had long and carefully cultivated the public image of the man driven solely by a passion for honor. Whatever his motives in his private actions, such as, for example, acquiring huge tracts of land, Washington in his public life appears to have been driven by his concern about the public’s perception of him as a man of honor. Forrest McDonald and numerous other historians have painted the picture of a man who might be said to have “staged” his public life. Washington was deeply affected throughout his life by Joseph Addison’s play Cato about the Roman republican statesman Marcus Porcius Cato (“the Younger”). Cato, a committed Stoic, was famous for his unrelenting honesty.

But Washington was a rare specimen of homo politicus. The national republicans’ plan for more run-of-the-mill politicians was similar to that of the agrarians, to rely on one measure of citizen virtue and another measure of constitutional structure to produce public virtue from politicians driven by private passions. Unlike the agrarians, they were convinced that a strong national government must be a part of that structure. On that point Hamilton and at least the 1787 version of Madison could agree. Hamilton and the national republicans parted ways with Madison, and with Jefferson and the more resolute agrarian republicans such as Taylor, by enthusiastically embracing the role of manufacturing and banking in promoting public virtue.

Jefferson’s ideal republic of yeoman farmers and artisans, comprising a large middle class possessed of a rough equality of means, had little room for manufacturers, and none for bankers and other jobbers dealing in phantom “wealth.” Manufacturing, when combined with commerce, the fear went, would necessarily soon lead to two anti-republican results. One was a love for material luxury; the other was a life of drudgery for the impoverished masses. The history of the ancient Roman Republic was a vivid cautionary tale. Taylor and the agrarians accepted the benefit of commerce within their preferred system of political economy, because it facilitated the export of products from the agricultural South and the importation of manufactured goods from abroad. But, in a preview of the South Carolina Nullification Crisis of the 1820s and ‘30s, this required free trade. Like most Southerners, Taylor was a committed free trader and suspicious of any national government regulation of economic matters, especially tariffs.

The agrarians’ fear of manufacturing tied into a general belief among political writers going back to antiquity that political systems evolve and, ultimately, decay. Entropy is inevitable in politics as much as physics. Agriculture may be the most desirable occupation, but, sooner or later, the limited productive land area is fully occupied, as New England was discovering. People would flock to cities where manufacturing would become their occupation. As Adam Smith described the effect on people, “the man whose whole life is spent in performing a few simple operations, of which the effects are, perhaps, always the same … generally becomes as stupid and ignorant as it is possible for a human creature to become ….” This fate stood in sharp contrast to that of the farmer, artisan, and merchant, who must possess broad knowledge and understanding of many activities. If this process was inexorable and made those human brutes unfit to practice private virtues, it also made the demise of the republic inevitable. Even Benjamin Franklin believed in the dangers from this progression, which puts his remark to his interlocutor, “A republic, madam, if you can keep it,” in yet another light. It also explains the urgency which Jefferson and other agrarian republicans felt about the westward expansion of territory and the opening of western land to agricultural settlement needed to forestall this threat to republican governance.

At the conclusion of the passage quoted above, Adam Smith extended a saving hand. After all, he was not opposed to either manufacturing or banking as sources of wealth. The evils of a poor and brutish urban working class would happen, “unless the government takes some pains to prevent it.” Smith had his views of what that might be. In any event, Hamilton, as an enthusiastic believer in Smith’s ideas, agreed that wealth was not fixed, and that even a personal profit motive can contribute to the public welfare. Investing in new processes and useful products and services is a public benefit. Thus, actions of the manufacturer and even the banker exemplify public virtue, whether or not they are driven by self-interest. He, like Adam Smith, believed that private wealth-producing activities qualified as private virtue. While others might not go that far, Hamilton successfully advocated the connection between such activity and the public virtue needed to maintain republican government.

Having established that manufacturing and banking could be “virtuous” in the public sense, there remained the need to foster them in order to ameliorate the conditions of poverty which would threaten republican government. After all, if enough wealth is created for all, “poverty” ceases to be objective and becomes relative. A rising tide floats all ships. At least from a material standpoint, owning a car and various electric and electronic devices today, living in an abode with air conditioning, and having clean water, basic sustenance and medical care, are vastly better than the experiences of past generations.

Hamilton and his supporters believed that their strong national government was the best mechanism to adopt policies which would foster the growth of wealth. Hamilton’s later program in his four reports to Congress between 1790 and 1795 on the public debt, a national bank, and manufactures, laid out in considerable detail his plans to that end. These sophisticated reports were a monument to Hamilton’s intellect and experience applied to the economic problems of the early United States.  They had such potency, and were so hotly contested, that they precipitated the First American Party System of Federalists and Jeffersonian Democratic-Republicans and made Hamilton in effect the dominant figure of American politics in the 1790s.

It should be noted in conclusion that all republicans—classic puritan, agrarian, and national—opposed democracy. Even those delegates and political leaders who at one point had been most favorable towards broad public participation and involvement in politics, were shaken by Shays’ Rebellion in Massachusetts. That event in 1786 had created much tumult and political chaos and was put down by an army raised by the state. It was very much on the minds of the attendees at the Philadelphia convention. Some of the most vociferous detractors of the Constitution as insufficiently “republican” were also the harshest critics of democracy. For them, Shays’ Rebellion exposed the danger of relying on private virtue to provide the public virtue necessary for republican self-government. James Madison spoke for them all when he opined in Number 10 of The Federalist about the inadequacy of democracies to promote public virtue:

[Such] democracies have ever been spectacles of turbulence and contention; have

ever been found incompatible with personal security, or the rights of property;

and have, in general, been as short in their lives, as they have been violent in their

deaths. Theoretic politicians, who have patronised this species of government,

have erroneously supposed, that, by reducing mankind to a perfect equality in

their political rights, they would, at the same time, be perfectly equalized and

assimilated in their possessions, their opinions, and their passions.

Joerg W. Knipprath is an expert on constitutional law, and member of the Southwestern Law School faculty. Professor Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. He has also spoken on business law and contemporary constitutional issues before professional and community forums, and serves as a Constituting America Fellow.

 

Click here for American Exceptionalism Revealed 90-Day Study Schedule
Click here to receive our Daily 90-Day Study Essay emailed directly to your inbox

Guest Essayist: Gary Porter


“For why declare that things shall not be done which there is no power to do?” writes Alexander Hamilton in Federalist 84. “[B]ills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted.”

“The Constitution can stand alone as a ‘Bill of Rights’” was Hamilton’s clear message here. Many of America’s Founders held to that view and the Founders were no slouches, so we would expect to find some substance to the claim. If the Framers indeed designed a United States Constitution of “limited and enumerated” powers, as Madison claimed in remarks during the Virginia Ratifying Convention, where was the fear of government infringement on individual freedoms to be found?

Indeed, in several places in the Constitution we find particular individual rights given explicit protection. For instance, in Article 1, Section 9 we find Congress specifically denied power to create bills of attainder, ex post facto laws and suspend the “Privilege of the Writ of Habeas Corpus.” Similar restrictions against the states are found in the next section of Article 1. The states are further required to protect your right of contract in the same section. In Article 3, we find the fundamental right of trial by jury preserved for “all Crimes, except in Cases of Impeachment.” “All Privileges and Immunities of Citizens in the several States” are guaranteed/protected in Article IV. But what do these consist of? The Constitution gives us no clue and, while the Supreme Court had an opportunity to provide an answer in the past[i] they demurred, so we are left to ponder the extent of this protection. As regards congressmen and congresswomen, a limited form of freedom of speech, at least while engaged on the floor of Congress, is found in Article 1, Section 6, where a companion protection from arrest is also located.

But that is about it as far as specific individual rights protections are concerned in the seven articles which make up the original Constitution. Where is the explicit protection of speech, or religion, of conscience, of the right to keep and bear arms, etc.? Hamilton’s answer of course would be: “where is the government given power in the Constitution to intrude upon any of those rights? The weight of Hamilton’s and Madison’s argument must rest then on the Constitution actually being, and, more importantly, remaining, a limited powers document. It is quite clear from the journals of early Congresses that congressmen routinely considered the Constitution to limit the powers of government.

The 1st Congress refused to approve a loan to a glass manufacturer in Georgetown after some members charged it was unconstitutional. A member in the 3rd Congress (1794) proposed $15,000 for relief of French refugees who fled from insurrection in San Domingo to Baltimore and Philadelphia. Third-term Congressman James Madison rose to object, saying, “I cannot undertake to lay my finger on that article of the Constitution which granted a right to Congress of expending, on objects of benevolence, the money of their constituents.” The 4th Congress (1796) turned down a request for relief to the citizens of Savannah, GA, after a fire burned down nearly a third of the city. On his last day as President in 1817, James Madison famously vetoed what today we would call an Infrastructure Bill,[ii] stating: “it does not appear that the power proposed to be exercised by the bill is among the enumerated powers [of the Constitution].

Has Madison’s view persisted? The following should be shielded from sensitive eyes.

Beginning principally in the Progressive Era and accelerating in the New Deal Era, the effort to expand the powers of the federal government has enjoyed great success. In 2010, then Congressman Peter Stark of California famously declared that “Yes, the federal government can do most anything in this country.” The picture has not improved much in the last twelve years.

Thanks to decisions in 1936[iii] and 1937,[iv] the Supreme Court gave Congress the power to spend money on anything it could justify in its own “mind” as supporting the general welfare of the United States.  Madison warned in 1792 that this sort of interpretation of the General Welfare Clause would turn the “limited powers” Constitution into an indefinite one subject [only] to particular exceptions.”[v] The 1937 Supreme Court had a different idea and today, Madison’s observation that “Charity is no part of the legislative duty of the government[vi] is considered a quaint relic of a bygone era.

In 1942,[vii] the federal government was given the power to regulate nearly all aspects of business in the U.S. since only a miniscule connection to “interstate commerce” was necessary. In 1968,[viii] the Court cleared the way for Congress to delegate its exclusive law-making power[ix] to executive branch agencies. This has resulted in a veritable flood of “regulations with the force of law” which impact our individual lives in myriad ways and the compliance of which are estimated to add $2 Trillion dollars to the cost of doing business in this country, a cost passed on to you and me in the form of increased prices for goods and services.

The Anti-federalists warned of the immense power being given this new central government,[x] yet I doubt they foresaw the magnitude of the federal power-grab we continue to experience today. Even the addition of a discrete Bill of Rights in 1791, while affording important individual rights protections, has not been enough (what does “shall not be infringed” mean?) Hamilton’s hope that the Constitution could stand alone as a Bill of Rights was hopelessly utopic. A Bill of Rights has proved absolutely necessary, but not alone sufficient to curtail the continuing federal power grab.

In conclusion, for the U.S. Constitution to have stood alone as a protector of individual, God-given, unalienable rights, as Hamilton wished, was in hindsight incredibly naive. One important feature of the original document needed to survive: limited powers, and it didn’t. Various groups with a decidedly different view of the purpose of government, assisted by a Supreme Court which from time to time shared their view, have successfully changed the fundamental nature of our wonderful Constitution from one of limited and enumerated powers to one of near plenary power. Taking advantage of the ambiguity of words and the concept of a “Living Constitution,” these forces have succeeded in creating a government which today intrudes into nearly every aspect of our private and corporate lives. The “demise” of the Tenth Amendment has been widely recognized by both Left and Right.[xi]

What is to be done? Must we simply acknowledge this sea change in the Founders intent to “secure the blessings of liberty to ourselves and our posterity” and learn to live with Leviathan? That is certainly one option – one allowing us to live relatively peaceful if increasingly controlled lives. The other response requires action, commitment and purpose. We must rouse ourselves and our neighbors, educate society to the problem we face and the inevitable endstate should we remain on this path, and proceed methodically to repair the damage to this inspired document. The Supreme Court can be an ally in this project, if an originalist majority can be kept in place long enough to reverse key decisions. But that could take decades, perhaps scores of years. The more logical approach is one the document itself gives us: amendment.

Congress will never take action to reduce the immense power they have been given by the aforementioned SCOTUS decisions; that much, I hope, we can agree upon. But a carefully worded amendment defining “commerce” and placing limits on the interpretation of the Interstate Commerce Clause could. No power-reducing amendments will ever emanate from the Congress and be sent to the states for ratification. So, we face precisely the situation Colonel George Mason of Virginia warned of on September 15, 1787, as the delegates considered the, at that time, single method of amending the Constitution. “No amendments of the proper kind would ever be obtained by the people, if the Government should become oppressive (Madison writes in his Notes), as he (Colonel Mason) verily believed would be the case.” Adopted “nem con” (i.e., unanimously) was a second method of proposing amendments: the states could meet in convention to consider and propose amendments.

It seems to this writer that the solution to the problem of Leviathan is at hand, given us expressly for the situation we now face: congressional intransigence. Will we grasp it or allow individual freedoms to inexorably slip away?

Gary Porter is Executive Director of the Constitution Leadership Initiative (CLI), a project to promote a better understanding of the U.S. Constitution by the American people. CLI provides seminars on the Constitution, including one for young people utilizing “Our Constitution Rocks” as the text. Gary presents talks on various Constitutional topics, writes periodic essays published on several different websites, and appears in period costume as James Madison, explaining to public and private school students “his” (i.e., Madison’s) role in the creation of the Bill of Rights and the Constitution. Gary can be reached at gary@constitutionleadership.org, on Facebook or Twitter (@constitutionled).

[i] Notably in what became known as the Slaughterhouse Cases.

[ii] https://millercenter.org/the-presidency/presidential-speeches/march-3-1817-veto-message-internal-improvements-bill.

[iii] United States v. Butler, 297 U.S. 1 (1936).

[iv] Helvering v. Davis, 301 U.S. 619 (1937).

[v] “If Congress can do whatever in their discretion can be done by money, and will promote the general welfare, the Government is no longer a limited one possessing enumerated powers, but an indefinite one subject to particular exceptions. It is to be remarked that the phrase out of which this doctrine is elaborated, is copied from the old articles of Confederation, where it was always understood as nothing more than a general caption to the specified powers, and it is a fact that it was preferred in the new instrument for that very reason as less liable than any other to misconstruction.”

[vi] James Madison, Speech in the House of Representatives, January 10, 1794.

[vii] Wickard v. Filburn, 317 U.S. 111 (1942).

[viii] Mistretta v. United States, 488 U.S. 361 (1989.

[ix] “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.”

[x] https://mises.org/library/antifederalists-were-right

[xi] https://mises.org/power-market/who-killed-10th-amendment.

 

Click here for American Exceptionalism Revealed 90-Day Study Schedule
Click here to receive our Daily 90-Day Study Essay emailed directly to your inbox

Guest Essayist: Eric Sands


The Constitutional Convention has been referred to as the “Miracle in Philadelphia” and there is a great deal of justice to that label. The delegates to the convention faced long odds in reaching compromise on a new form of government. But in many respects, writing the United States Constitution was only half the battle; the delegates then had to get it ratified. This proved to be a difficult task and required the assistance of some of the leading minds in the country to convince the American people to accept the new document.

These proponents of ratification were known as Federalists and included men such as Alexander Hamilton, James Madison, John Jay (collectively known as “Publius”), James Wilson, George Washington, Gouverneur Morris, John Marshall, and Benjamin Franklin. These men were nationalist in their orientation and believed that a stronger national government was a necessary corrective for the defects in the Articles of Confederation. Opposing these Federalists were the Anti-federalists who argued against ratification, or at least counseled serious modifications to the Constitution’s design. Among the most prominent Anti-federalist writers were Patrick Henry, Melancton Smith, and authors writing under pseudonyms such as Cato, Brutus, Centinel, and Federal Farmer. These men advocated for a confederal form of government where most of the power would be held in the hands of the states.

The Anti-federalist arguments generally fell into two categories. The first was pursuing structural changes in the Constitution itself to limit the power of the national government. During the public debates, Anti-federalists raised numerous objections to the Constitution and pointed out that the power being ceded to the national government was a danger, not just to the states, but to the people. The Anti-federalists, for example, argued that too much power was being given to the president and that he could become a monarch. This was especially true given his infinite re-eligibility. The Anti-federalists complained that the Constitution blended powers too much and needed to adhere to a much stricter principle of separation of powers. They feared that the Supreme Court would become an all-power government tribunal and proposed presidential commissions that could overturn bad judicial decisions. Congress’ power was seen as too extensive and needed to be scaled back. Limits needed to be put in place governing Congress’ control over the state militias and federal elections, and there was an overarching fear about how much power Congress might subsume under the necessary and proper clause. Finally, the Anti-federalists harbored deep suspicions that a republican form of government could work over a territory and with a population as large as the United States. Conventional wisdom of the day held that republics could only be successful in a small territory with a small and relatively homogenous population. A republic on the scale of the United States had no historical precedent and the Anti-federalists believed it could not work.

As enlightened as some of the Anti-federalist objections to the Constitution were, structural changes were not in the cards. All the Anti-federalist amendments introduced at the ratifying conventions were defeated. A large part of this defeat was owing to the efforts of the Federalists to get their defenses of the Constitution into print and the larger number of newspapers that supported ratification. However, the Anti-federalists had a second category of arguments that proved far more successful. These arguments revolved around the lack of a bill of rights in the Constitution. The lack of a bill of rights seemed to them to be particularly egregious given how much power was being given to the national government. Thus, in numerous essays, the Anti-federalists complained about a need for specific protections like freedom of speech, press, religion, assembly, petition, and possession of arms. Most of these rights were guaranteed to the people at the state level, so it made little sense that the people’s rights should be less secure at the national level.

Federalists initially countered these arguments in a couple of ways. In Federalist 84, for example, Hamilton argued that the Constitution should be allowed a trial period before alterations were made. There may be several things the American people want to change five or ten years down the road, so make the changes then when a judgment can be made about whether they are necessary. Second, the structure and design of the Constitution already protected rights through separation of powers, checks and balances, enumerated powers, and republicanism. Any attempt to infringe on personal rights would never be able to survive this gauntlet of obstructions. Finally, a bill of rights could endanger rights because it would only include certain specified rights, leaving others unprotected. It would also imply that rights come from government and that it alone chooses which rights to recognize.

Despite this defense of not including a bill of rights in the Constitution, the American people remained unpersuaded, and the Constitution stood a real chance of not being ratified because of this defect. Eventually, however, the Federalists gave in, and several of their most prominent members made promises that a bill of rights would be on the agenda of the First Congress. With this promise in place, ratification moved forward, and eleven states initially joined the Union (Rhode Island and North Carolina did not ratify until later).

The first national elections were a disaster for the Anti-federalists with them winning only a few seats in the House and the Senate. The landslide victory for the Federalists had cooled Federalist opinion about the need for amendments. Some speculated that the promise made to the people could be safely ignored, while others argued that some vague, superficial amendments would likely suffice. James Madison, however, stood up for a bill of rights. Having made a personal campaign pledge to produce a bill of rights to his constituents, Madison made repeated efforts to get the bill on the legislative agenda. When that did not work, he presented a formal proposal of amendments he thought should be introduced into the Constitution. Still, Federalists were not enthusiastic about his proposal and likely would have never allowed the bill to move forward had Madison’s not received Washington’s endorsement, which Washington articulated in his inaugural address. Once the federal revenue system was completed, the Federalists finally got around to Madison’s amendments.

Anti-federalists, though few and far between, used the opportunity to start making their own proposed amendments to change the structure of the Constitution. But they were voted down every time, with antagonism between the two sides becoming so heated that congressmen challenged each other to duels. In the end, Madison’s patience and his willingness to compromise helped move the amendments along. Congress did not adopt all the amendments, and the language of others was altered, but that was the price Madison had to pay to see the amendments submitted to the states. On December 15, 1791, enough states ratified the Bill of Rights to formally make the ten amendments part of the Constitution.

Eric C. Sands is Associate Professor of Political Science and International Affairs at Berry College. He has written a book on Abraham Lincoln and edited a second volume on political parties. His teaching and research interests focus on constitutional law, American political thought, the founding, the Civil War and Reconstruction, and political parties. 

 

Click here for American Exceptionalism Revealed 90-Day Study Schedule
Click here to receive our Daily 90-Day Study Essay emailed directly to your inbox

Guest Essayist: Tom Hand
Fifth, Second and First Constitutional Amendments with gavel


The first ten amendments to the United States Constitution, better known as the Bill of Rights, are what allow us to enjoy many of the day-to-day blessings of our great country. Freedoms easily taken for granted are enshrined in these revisions to the original document. While the Constitution shaped our government, the Bill of Rights shaped our lives.

These amendments include both individual freedoms such as the right to keep and bear arms, free speech, freedom of the press, and freedom to worship as we please, as well as restrictions on the power of the federal government.

You might wonder why these basic freedoms had to be added to the Constitution after it was created rather than being front and center in the debates at the Constitutional Convention. The reason can be found in considering the mission of the convention.

Specifically, when the Constitutional Convention met in Philadelphia in the summer of 1787, the delegates’ primary goal was to fix the weaknesses in the Articles of Confederation and, thereby, form a system of government that would allow the country to flourish.

Consequently, most of the discussion at the convention focused on the form of government and how it would operate, not on the individual rights of the people. Although the representatives met from May 14 to September 17, no motion to adopt a Bill of Rights for the citizens of the country was introduced until September 12 when George Mason of Virginia did so.

Mason’s suggestion was quickly dismissed and, looking back, it seems surprising that something as crucial as a bill of rights was not subject to lengthy debate. However, we must keep in mind each state already had their own constitution, many of which contained a bill of rights.

As James Madison noted in his essay Federalist 46, the new federal constitution did not eliminate those rights granted by the states. Since personal rights already existed at the state level, Madison argued there was no need for the federal government to guarantee them as well.

From a more practical standpoint, the delegates needed to get home. They were not full-time politicians who made their living on the government payroll. They were mostly doctors, lawyers, businessmen, and farmers. Time away from home cost them money and, quite naturally, after being in hot, steamy Philadelphia for four months, they did not want to extend the convention for several more weeks to discuss such a contentious topic.

Soon after the proposed Constitution was circulated to the state legislatures for approval in late 1787, it came under criticism for several perceived faults, but primarily for its lack of a bill of rights. The group opposing the new Constitution became known as “Anti-federalists” and were led by Elbridge Gerry of Massachusetts and George Mason.

Gerry published a widely circulated letter, dubbed “Hon. Mr. Gerry’s Objections,” in which he stated his reasons for not supporting the new Constitution. As he saw it, “the liberties of America were not secured by the system” and it was flawed “without a bill of rights.”

Alexander Hamilton responded in Federalist 84 that “the constitution is itself in every rationale sense, and to every useful purpose, a bill of rights.” He added that by ratifying the Constitution “the people surrender nothing, and as they retain everything, they have no need of particular reservations.”

There was also concern that, by listing only certain rights, it could be implied that those were the only ones guaranteed by the new Constitution and any others not mentioned were not. In other words, explicitly stating any rights might actually reduce our freedom.

Although the proposed document was quickly ratified by five states (Delaware, Pennsylvania, New Jersey, Georgia, and Connecticut), it bogged down in other state legislatures primarily due to the absence of a bill of rights. In Massachusetts, the impasse was broken when Anti-federalists, led by John Hancock and Samuel Adams, agreed to ratify the proposed Constitution on the condition that a bill of rights would soon follow.

The Federalist minorities in the Maryland and Virginia assemblies facing similar opposition, also agreed to establish a bill of rights rather than risk delaying the ratification of the Constitution. This spirit of compromise kept the process moving.

On June 21, 1788, New Hampshire became the ninth state to approve the proposed Constitution. As a result, Congress formally ratified it on September 13, 1788, with an enactment date of March 4, 1789. One hurdle had been cleared.

The challenge now was to craft a bill of rights that would be acceptable to the thirteen states. James Madison of Virginia, an early opponent of a bill of rights and a member of the House of Representatives, eventually changed his position on the matter and led the effort to develop one that would satisfy the Anti-federalists.

Madison’s initial effort recommended nine changes to the body of the new Constitution rather than additional articles. However, the Federalists saw this attempt to modify the original text they had so recently ratified as a mistake. They argued these changes might undermine the credibility of the new document.

Instead, the House of Representatives, swayed by the arguments of Roger Sherman, agreed to place all amendments at the end of the Constitution. On September 25, 1788, after much debate, the House and Senate jointly agreed to twelve proposed Articles as additions to the document and forwarded them to the states for their approval.

On December 15, 1791, Articles Three through Twelve were ratified by Congress and became the first ten Amendments to the Constitution, our Bill of Rights. Interestingly, Article Two dealing with Congressional pay raises was not approved until 1992 as the 27th Amendment and Article One dealing with the number of seats in the House has never been approved.

So why should the Bill of Rights matter to us today?

Quite simply, life as we know it in the United States of America would not be the same without the rights stated in our first ten amendments. Try to imagine a country without religious freedom or the right to say what we want. Or a place where the government could search your home without cause or deny you due process of law.

The Bill of Rights matter to all of us every day we live in this great country of ours. We must know and understand our rights as Americans, or we can never hope to preserve them. It is truly our shared responsibility.

If you want to learn more about your Bill of Rights, I suggest reading Akhil Reed Amar’s book The Bill of Rights. Published in 1998, this book is an excellent account of our Bill of Rights, including the history behind their creation, how the interpretation of them has evolved, and how they are linked to one another.

Tom Hand is creator and publisher of Americana Corner. Tom is a West Point graduate, and serves on the board of trustees for the American Battlefield Trust as well as the National Council for the National Park Foundation. Click Here to Like Tom’s Facebook Page, Americana Corner. Click Here to follow Tom’s Instagram Account.

 

Click here for American Exceptionalism Revealed 90-Day Study Schedule
Click here to receive our Daily 90-Day Study Essay emailed directly to your inbox

Guest Essayist: Gary Porter


Shay’s Rebellion was a “wake-up” call for all Americans. The armed closure of a duly constituted court was a drastic step. But these were drastic times. The war with Britain, though favorably concluded for the Americans, had left the economies of the states in shambles. The Confederation Congress found itself powerless to intervene. By the summer of 1786, farmers were unable to find a market for their crops or meet their tax obligations; without hard cash they were unable to make their mortgages or loan payments. The courts, with little recourse but to uphold the law, were foreclosing on farmers who only a few short years before had been fighting for their country’s independence. On August 31, 1786, ex-Revolutionary War Captain Daniel Shays, now himself a bankrupt farmer, lead an armed mob to the Northampton, Massachusetts court and forced it to close. But Massachusetts was not alone: Pennsylvania’s James Wilson observed that “The flames of internal insurrection were ready to burst out in every quarter.”  Mutinies of soldiers in New York, New Jersey and Pennsylvania fed the anxiety. Political cartoons began to appear in American newspapers mocking Congress. Leading men began calling for amendments to, or even replacement of, the Articles of Confederation.

In April 1786, Rufus King wrote to Elbridge Gerry: “We are without money or the prospect of it in the Federal Treasury; and the States, many of them, care so little about the Union, that they take no measures to keep a representation in Congress.”[i]

Three years before, Henry Knox had complained to Gouverneur Morris: “As the present Constitution is so defective, why do not you great men call the people together and tell them so; that is, to have a convention of the States to form a better Constitution.”[ii]

Finally, the pleas for change were heard, there would be a “Grand Convention” to “fix things” once and for all. Alexander Hamilton and James Madison were elated. Their quiet work behind the scenes had paid off.

In Hamilton’s view “The fundamental defect is a want [lack] of power in Congress.”[iii] He had tried numerous times to have the Articles amended, to no avail. George Washington complained of “a half-starv’d, limping Government.”[iv]

Madison was determined not to waste the opportunity the convention afforded. First, he would place the Articles under his scholar’s microscope and identify each of its defects. Madison was in a unique position to undertake this analysis: he had represented Virginia from 1780-1783 in the Confederation Congress and had seen from that vantage its inherent weakness. Following this, he had served the next three years in the Virginia Assembly, seeing the problems caused by the Articles from that perspective. Returning once again to a seat in the Confederation Congress in the Spring of 1787, Madison sat down at his desk before setting out for Philadelphia and wrote “Vices of the Political System of the United States.” These would become the “cautions” that a new government must avoid. Hopefully it would become a government actually empowered to govern.

All but the last of the twelve “bullet points” Madison set down in “Vices” were accompanied by elaborating commentary. For instance: “Failure of the States to comply with the Constitutional requisitions,” the first complaint, was explained as an “evil” which “has been so fully experienced both during the war and since the peace, [which] results so naturally from the number and independent authority of the States and has been so uniformly exemplified in every similar Confederacy, that it may be considered as not less radically and permanently inherent in, than it is fatal to the object of, the present System.”

While Madison was careful to identify the “effects” of the deficiencies of the Articles, he did not focus on its numerous structural defects:

  • The Articles created only a unicameral Congress. In 1774, the Continental Congress had simply “come together” without much thought of being a permanent fixture. Governments of history had often included a Senate, but where would the authority to add a Senate to the Congress come from, even if the advantage was obvious? By 1787, however, all of the states had adopted bi-cameral legislatures in their state constitutions. While this example was adopted by the convention, it is generally regarded as one of many compromises. (See Article 1)
  • There was no Supreme Court. With Congress lacking the authority to create a supreme legal body, conflicts between states were assigned to ad hoc committees to resolve. Without an enforcement arm, committees were limited to recommending solutions, relying on the good will of the states to carry out their recommendations. (See Article 3)
  • There was no true chief executive function. Beyond keeping order in the Congress, the President had little power to do much else. Enforcing the laws passed by Congress? Not in the President’s obligations. (See Article 2)
  • The amendment process effectively guaranteed no amendments. The Articles required state unanimity before an amendment was adopted. In practice, this proved self-defeating since in every case a single state could (and did) object and thus the suggested amendment came to a grinding halt. (See Article 5)

All of these defects were corrected in the new Constitution.

The standard meme today is that the Articles were discarded in their entirety and a “brand-new” document substituted. But while the structure of government adopted at the Grand Convention was indeed new, not every feature of the Articles was abandoned; the following clauses and provisions were retained, some nearly verbatim:

  • The “privileges of trade and commerce” enjoyed by the citizens of each state were preserved, reworded as the privileges and immunities clause of the Constitution. (See Article IV, Section 2)
  • The power to extradite fugitives. (See Article IV, Section 2)
  • The “Full faith and credit clause.” (See Article IV, Section 1)
  • “Freedom of speech and debate in Congress” was retained as was immunity from arrest. (See Article I, Section 6)
  • The prohibition against treaties, confederations, or alliances between the states without the consent of the Congress. (See Article I, Section 10)
  • Congress’ exclusive war-declaring power. (See Article I, Section 8)
  • Congress’ exclusive authority to issue letters of marque and reprisal and punish “piracies and felonies commited (sic) on the high seas.” (See Article I, Section 8)

At the Virginia Ratification Convention on June 5, 1788, Edmund Pendleton would sum up the Articles thusly: “Our general government was totally inadequate to the purpose of its institution; our commerce decayed; our finances deranged; public and private credit destroyed: these and many other national evils rendered necessary the meeting of that Convention.”

The genius of fifty-five “demigods” would find solutions to the various defects of the Articles of Confederation, would create the “more perfect union” the men sought and that America deserved, yet all this genius depended on one final institution: a virtuous people. As John Adams reminds us: “Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.”[v] If this constitutional republic is to survive, if the republic is to be “kept,” the result is in the hands of “We the People.”

Gary Porter is Executive Director of the Constitution Leadership Initiative (CLI), a project to promote a better understanding of the U.S. Constitution by the American people. CLI provides seminars on the Constitution, including one for young people utilizing “Our Constitution Rocks” as the text. Gary presents talks on various Constitutional topics, writes periodic essays published on several different websites, and appears in period costume as James Madison, explaining to public and private school students “his” (i.e., Madison’s) role in the creation of the Bill of Rights and the Constitution. Gary can be reached at gary@constitutionleadership.org, on Facebook or Twitter (@constitutionled).

[i] Rufus King to Elbridge Gerry, April 30, 1786

[ii] Henry Knox to Gouverneur Morris, Feb 21, 1783.

[iii]  Alexander Hamilton to James Duane, 3 Sept. 1780.

[iv] George Washington to Benjamin Harrison, 18 Jan. 1784.

[v] To the Officers of the First Brigade of the Third Division of the Militia of Massachusetts, October 11, 1798.

 

Click here for American Exceptionalism Revealed 90-Day Study Schedule
Click here to receive our Daily 90-Day Study Essay emailed directly to your inbox

Guest Essayist: Tony Williams
Articles of Confederation, George Washington, 1787


At the end of the Revolutionary War, many Americans had great hopes for a politically and economically prosperous future for their independent nation. In June 1783, General George Washington took a moment to reflect on the state of America and offer some advice to his fellow citizens to preserve its future.

In his Circular Letter to the States, Washington wrote that the “lot which Providence has assigned us” was blessed with “the Establishment of our forms of Government; the free cultivation of Letters, the unbounded extension of Commerce, the progressive refinement of Manners, the growing liberality of sentiment, and above all, the purse and benign light of Revelation.” For Washington and others, the American founding occurred during an “auspicious period.”

The reality of the 1780s, however, rarely matched such optimism. The economy suffered a recession at a time of heavy public and private debt. The states passed tariffs on each other’s trade and nearly went to war over these trade disputes. Several states violated the 1783 peace treaty. They violated the property rights of Tories and the rights of conscience of religious dissenters with unjust laws.

The Articles of Confederation offered few solutions to the problems that plagued the new nation. The national government lacked the power to tax or regulate interstate trade. The principle of separation of powers was largely absent as the government did not have an independent executive or judiciary nor a bicameral legislature. The national government failed to respond militarily to crises such as Shays’ Rebellion.

While most acknowledged that the new republic suffered problems of governance, they differed as to the proper remedies to those difficulties and the exact character of the national Union. These contrasting views were seen in the Confederation period, at the Constitutional Convention, and during the ratification debates between Federalists and Anti-federalists.

The Anti-federalists, admitted throughout the period, the Confederation government had a few problems. Nevertheless, they thought that a few reforms were sufficient to solve the problems. The proposed New Jersey Plan at the Constitutional Convention added greater powers of taxation and trade regulation to national powers but did little to alter the basic framework of government.

The Anti-federalists defended this basic line of thinking and opposed the significant increase of powers in the national government in the new Constitution. For example, the first letter of Brutus warned that the proposed government was dangerously consolidated and threatened the liberties of the people. They believed that they were the real “federalists” because they supported the principle of federalism with a better balance between state governments and the national government.

Brutus was concerned that the Constitution would destroy the Confederation and thereby change the very nature of the Union. The Necessary and Proper Clause and the National Supremacy Clause, Brutus explained, granted virtually unlimited powers to the national government and effectively annihilated the state governments as they were “barely necessary to the organization of the general government.” Brutus also appealed to Montesquieu’s view in Spirit of the Laws that republican governments can only survive in small territories.

The Federalists, on the other hand, sought to expand the powers of the central government and argued that a stronger government would actually do a better job than the Confederation government at protecting liberty. They defended the new government and believed that the powers of government had to be redistributed in favor of the national government.

James Madison was one of the leading voices of the Federalists who propagated this new view. Before the Convention, Madison penned the Vices of the Political System, which detailed the evils that beset the Confederation. He thought, “The great desideratum in Government is such a modification of the sovereignty as will render it sufficiently neutral between the different interests and factions to control one part of the Society from invading the rights of another, and, at the same time, sufficiently controlled itself from setting up an interest adverse to that of the whole society.” In other words, the main goal was to empower the national government without creating a tyranny.

With this in mind, Madison developed the Virginia Plan that laid the basis for debates early in the Convention. While he did not get everything he had wanted in the Constitution, Madison was one of the main proponents of the Constitution as one of the three authors of the Federalist essays under the pseudonym Publius and at the Virginia ratifying convention.

In Federalist #39, Madison explained, “The proposed Constitution, therefore, even when tested by the rules laid down by its antagonists, is, in strictness, neither a national nor a federal Constitution, but a composition of both.” He thought this delicate balance would help make possible a government in a large republic. In his innovate political science in Federalist #10 and Federalist #51, Madison argued that liberty would be better protected in a large republic because contending interests would prevent unjust factions from introducing majority tyranny.

The vigorous deliberation during the American founding demonstrated that while the founders on both sides of the argument concurred on the ends of government, they differed on the best framework of government to achieve those ends. Americans have continued to debate the relationship of the national government and the states according to the federal principle throughout the history of the country to the present day.

Tony Williams is a Senior Fellow at the Bill of Rights Institute and is the author of six books including Washington and Hamilton: The Alliance that Forged America, with Stephen Knott. Williams is currently writing a book on the Declaration of Independence.

Click here for American Exceptionalism Revealed 90-Day Study Schedule
Click here to receive our Daily 90-Day Study Essay emailed directly to your inbox

 

Guest Essayist: Tom Hand


The Articles of Confederation and Perpetual Union was our nation’s first constitution and essentially served as the basis for our government from 1777 to 1789. It was created by the thirteen original states to help them unify their war efforts against England and was the precursor to our present Constitution.

In June 1776, soon after the Second Continental Congress appointed the Committee of Five to draft the Declaration of Independence, Congress also established a committee to craft a document by which this new country would be governed. Comprised of one delegate from each colony and chaired by John Dickinson of Pennsylvania, these thirteen men presented their initial draft to Congress on July 12, 1776.

They named it the Articles of Confederation, suggesting a fairly loose coalition rather than one united entity. Although the states agreed to form a national government, they were not willing to cede any of their individual rights or powers to it.

After much debate and five different versions, the Articles were finally approved by Congress on November 15, 1777, and immediately sent to the various states for their ratification. Although official approval of the document required all thirteen states to ratify it and the thirteenth state (Maryland) did not do so until February 2, 1781, the Articles effectively guided Congress’ action from 1777 onward.

The Articles stressed the rights of the individual states more than the power of the central government. As Article II states, “Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated.”

Additionally, the states viewed this association as a group of co-equals and there was no consideration given for the size, wealth, or population of the various colonies. As articulated in Article V, “In determining questions in the United States in Congress Assembled, each state shall have one vote.”

Article IX entrusted several responsibilities to the Confederation Congress such as dealing with Indian nations and foreign affairs to include making treaties, declaring war, and making peace. However, the Article also required “nine states assent” to virtually anything Congress wanted to do. Given the sessions were lightly attended by the delegates, quorums were often difficult to attain which made passing any new legislation even more challenging.

Interestingly, Article XI expressly allowed for the addition of Canada to our confederation if that colony so chose. That fact indicates how precarious was England’s hold on our northern neighbor in the minds of Americans in the 1770s. Finally, as Article XIII states “the Union shall be perpetual” which meant that joining the compact was permanent and there was no recourse for leaving the Union.

The Articles of Confederation as approved created an amazingly weak central government. One might ask why the states would take the time to form a national government at all if the one they designed was powerless and ineffective. It is important to remember state sovereignty was paramount to virtually all political leaders in early America.

As the move towards independence gained traction in 1776, states codified freedoms in their own state constitutions that had been denied to them under King George and Parliament. With each state already guaranteeing liberties to all citizens, there was no need or desire to create a powerful entity at the federal level to ensure them.

This extreme focus on state’s rights is understandable when one considers how the original colonies had been established. Rather than the eastern seaboard being populated by the English all at once, the various colonies had been settled separately and independent of the others. Naturally, each colony jealously guarded its autonomy.

The inherent weakness of the federal government, and the danger that posed, became clear as the American Revolution got underway. Although its provisions authorized the central government to regulate and establish an Army, it lacked the power to enforce its decrees. While Congress could request funding and troops from the states, all money and men would only be forthcoming if the states agreed to the requests. Not surprisingly, most requests were ignored.

This lack of funding and men almost proved the undoing of the Continental Army which, of course, would have meant the end of our effort to win independence. As General George Washington wrote to George Clinton from Valley Forge in February 1778, “For some days past, there has been little less than a famine in camp.” He went on to write, “When the fore mentioned supplies are exhausted, what a terrible crisis must ensue.”

Unfortunately, funding for the army only got worse after we secured our independence. With the threat from England largely ended, the national army shrank to a skeletal force that attempted without much success to protect the western borders from Indian attack. Additionally, because of this military impotence, the United States could not compel England to abandon its forts in the Northwest Territory as called for in the Treaty of Paris.

The Articles also expressly denied Congress taxation authority. Consequently, the central government was constantly short of cash and unable to pay its bills. Congress printed more money, but this only served to devalue the currency. To make matters worse and national finances more confusing, the individual states had the right to print their own currency as well.

Another flaw was the lack of an executive branch. Although the men who presided over the Continental Congress were called “President,” they had no power, and many served in that position for less than a year. Most delegates had seen too much of King George and monarchy to be willing to entrust significant authority in one central figure.

These issues aside, the Articles of Confederation deserves some credit. For one thing, it was our first constitution, and with it we survived the American Revolution and six years beyond.

The Articles also granted the Confederation Congress the authority to establish an efficient system for expanding the new nation. Its provisions for new territories and how to settle them as seen with the Northwest Ordinance of 1787 proved to be a boon in the decades that followed.

So why should the Articles of Confederation matter to us today? Perhaps the greatest blessing of the Articles was its flaws. Our nation’s leaders were able to see and learn early on what we needed in a central government for our country to succeed.

While we feared a powerful Federal government, we realized one that was powerless would ensure our demise. The recognition that we needed to balance these two concerns led to the changes our Founding Fathers incorporated into our Constitution.

If you want to learn more about the Articles of Confederation, I suggest reading “We Have Not a Government: The Articles of Confederation and the Road to the Constitution” written by George Van Cleve. Published in 2017, it is an excellent account of the troubles resulting from the weakness of the Articles and how those troubles led to the creation of our Constitution.

Until next time, may your motto be “Ducit Amor Patriae,” Love of country leads me.

Tom Hand is creator and publisher of Americana Corner. Tom is a West Point graduate, and serves on the board of trustees for the American Battlefield Trust as well as the National Council for the National Park Foundation. Click Here to Like Tom’s Facebook Page, Americana Corner. Click Here to follow Tom’s Instagram Account.

 

Click here for American Exceptionalism Revealed 90-Day Study Schedule
Click here to receive our Daily 90-Day Study Essay emailed directly to your inbox

Guest Essayist: Gary Porter
U.S. Bill of Rights


Before I begin this discussion, I should like to highlight two books which cover this topic quite well, in far more detail than I can include here: The First American Constitutions, by Willi Paul Adams, first published in 1973 in Germany, later, in 2001 in the U.S., and The Origins of American Constitutionalism, published in 1988 by Donald S. Lutz. Both are well-written, well-documented and well-worth your time.

We tend to view the American War for Independence in simplistic terms: parliament overreached; the colonies balked, declared their independence, fought a war to secure that independence, and went on to establish a unique written Constitution “of the people, by the people and for the people.” But as any historian knows, the story is more complicated. While the later part of the 1700s, at least in America, was indeed dominated by the War for Independence, “[t]he last three decades of the eighteenth century were a time of extraordinary political experimentation and innovation,” [i] writes Donald Lutz, and the American Revolutionary War “just happened” to occur during that extraordinary time.

The U.S. Constitution has at various times and by various writers been called the product of the Enlightenment, Classical Greek philosophy, Protest theology, the Hebrew Republic, English common law and English Whig political theory, and some of its roots can easily be traced to these predecessors; but many overlook its connections to the first state constitutions. “The early state constitutions contributed significantly to the development of [the] constitutional principles [found in the U.S. Constitution].”[ii]Anyone who will lay the Federal Constitution side by side with the State Constitution of Massachusetts (adopted in 1780) and with the State Constitution of New York (adopted in 1777) will be startled by the extent to which the members of the Federal Convention not only followed the principles, but used the exact phraseology of those State documents.”[iii]

By 1787, when fifty-five men met in Philadelphia to “render the federal Constitution adequate to the exigencies of the Government and the preservation of the Union,”[iv] all but two of the thirteen states had already set in place a new state constitution.[v] Of those fifty-five men, almost half (26) had served in their state legislatures, including participating in the drafting of their state’s new plan of government.

References to numerous state constitutional provisions were made during the “Grand Convention.” One of the last being on September 12th, just five days before the Constitution was completed and signed.  Virginia delegate, George Mason, rose to point out that the absence of a Bill of Rights in the draft they were then considering was a matter of great concern. “It would give great quiet to the people (to have a Bill of Rights); and with the aid of the State declarations, a bill might be prepared in a few hours.” Colonel Mason, you may recall, had been the chief architect of the Virginia Declaration of Rights of 1776; thus, he was eminently qualified and experienced to draft yet another declaration.  But Mr. Roger Sherman of Connecticut then rose to point out that “The State Declarations of Rights are not repealed by this Constitution; and being in force are sufficient.” A motion was made to establish a committee to draft a bill of rights, but the motion failed 0-9, and the delegates went on to put the final touches on the document they had labored over for four long months.

But let’s step back a bit in time and review what prompted this “extraordinary political experimentation and innovation.”

Rising tensions between Great Britain and the American colonies had led to the suspension of state assemblies in Massachusetts, New York, Virginia. Other Royal Governors simply fled their posts. Leaving a society without government and/or leadership invites anarchy. Thomas Jefferson complained of this in the Declaration of Independence:

He (i.e., the King) has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people.

He has refused for a long time, after such dissolutions, to cause others to be elected; whereby the Legislative powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the mean time exposed to all the dangers of invasion from without, and convulsions within.

Without their state assemblies in operation and to mitigate “the dangers of invasion from without, and convulsions within,” Committees of Correspondence, Committees of Inspection and Committees of Safety became shadow state governments. Eventually, provisional assemblies were formed and these sought advice from the Continental Congress, which began meeting in September 1774.

The State of New Hampshire figures prominently in America’s constitutional history: their ratification of our U.S. Constitution on June 21, 1788, was the ninth and final ratification necessary to put the document into effect. The subsequent ratifications, by Virginia, New York, North Carolina and Rhode Island, only ensured those states would be participants in the new union rather than bystanders. But few Americans today know that New Hampshire was also the very first colony to enact a new constitution, on January 5th, 1776, a full seven months before the united colonies declared their independence in Philadelphia. New Hampshire had asked the Congress for permission to do so in the Fall of 1775, even suggesting that Congress draft a standard state constitution that each state would then adopt. Congress debated this but decided that there were so many differences in the state governments that had evolved over a hundred or more years that a “one size fits all” approach would simply not work. Congress finally gave New Hampshire and South Carolina the “go-ahead” on November 3rd, 1775.

South Carolina followed New Hampshire’s lead with a new provisional constitution of their own on March 26, 1776. On May 4th., Rhode Island unilaterally declared its independence from Great Britain without finding it necessary to establish a new plan of government; their original charter, stripped of its monarchical references, would serve adequately.

Two days later, Virginia began the fifth in a series of conventions.  Meeting in Williamsburg, the delegates approved a Declaration of Rights on June 12th and their new constitution on June 29th.

Noting the actions of New Hampshire, South Carolina, and Rhode Island, and perhaps trying to “get ahead of the curve,” the Continental Congress on May 10th approved a circular to the thirteen colonies encouraging any of the colonies who had not yet done so to form new provisional governments. After adding a preamble on 15 May, the circular was sent. [vi] On July 2, 1776, the same day Richard Henry Lee’s resolution for independence was approved in the Congress, New Jersey ratified its new constitution.

All but one of the remaining states approved new constitutions within a year: Delaware (September 11, 1776), Pennsylvania (September 28, 1776), Maryland (November 8, 1776), North Carolina (December 14, 1776), Georgia (February 4, 1777), and New York (April 20, 1777). Connecticut, like Rhode Island, decided its existing charter provided an adequate government. Other than Rhode Island and Connecticut, Massachusetts became the last state to adopt a new constitution, in 1780.[vii]  In the years that followed, several states updated or replaced their provisional constitutions.

As each colony-turned-state began drafting their new constitution they drew upon, in Virginia’s case for instance, the experience of more than 100 years of self-governance. Each colony had an elected assembly, either unicameral or bicameral, a court system, and a Royal Governor appointed by the King but usually also advised by a Governor’s Council. By 1773, however, the aforementioned committees were governing towns and counties, and soon nearly all the colonies had established provincial congresses acting outside royal authority.[viii]

Despite their practical experience in governing, the states found constitution-making from scratch a relatively new, untested process. What features of their colonial government should they retain, which should be modified or abandoned altogether? Hanging over all this constitution-making were the Articles of Confederation. For nearly four years (November 1777 – March 1791) the Articles lacked the unanimous consent they needed to be in official operation, yet there was a war afoot; no time to wait for Maryland to come on board; Congress had no choice but to act as though the Articles were ratified. How well would these new state governments work with the Confederation Congress?  Not well at all as it turned out. But the blame should be placed on the Articles, not the states.

The Continental Congress continued to function as a rudimentary, unicameral central government under the Articles of Confederation, yet in 1776-77, as the states drafted their new plans of government, the confederation’s more glaring deficiencies were yet to be revealed. What did the states come up with?

  • First, what should we call this thing? Although the nomenclature shift from “charter” to “constitution” was slow and inconsistent, eventually all states settled on some variation of that term; Virginia, Maryland, and North Carolina termed their initial document “The Constitution or Form of Government”; Pennsylvania: a “Plan or Frame of Government”; Delaware: “The Constitution or System of Government”; Georgia: “Rules and Regulations for the Future Government of the State.”
  • Division of the government into three distinct branches (most of the thirteen State constitutions had this feature). Virginia’s constitution reads: “That the legislative and executive powers of the State should be separate and distinct from the judiciary.”[ix]
  • Checks and balances. “They had encountered evil or unfortunate conditions in the past, in their royal and State governments; and they planned now to avoid a renewal of those conditions by adopting theories to fit the circumstances. So far from intending each of the three branches to be wholly coordinate, they decided to curb any excess of power in any one branch by balancing it with an effective power in another. Where they had experienced an evil in an omnipotent Legislature, they checked it; where they had actually felt the oppression of a too strong Executive, they checked him; where they believed a Court had been too independent, they checked it.”[x]
  • The Franchise. Generally, men (and in some states, women) who owned a certain minimum amount of property could vote. Pennsylvania enfranchised any male who paid taxes.
  • Elective Government. All states established direct popular elections for at least the Lower House of the legislature, with annual elections being the rule. Ten states also chose annual elections for the Senate, whether by the people or the lower house. Eleven states instituted annual elections of the governor, in three states directly or indirectly by the people, in the others by the legislature. Interestingly, South Carolina set a net worth requirement for their governor, the only state to do so.
  • The Legislature. While most colonies had operated with a unicameral legislature up until independence, often augmented by a Governor’s council, all but one state chose a bicameral legislature for their new constitutions, with Pennsylvania being the lone exception (Pennsylvania joined the bicameral states fifteen years later).
  • The Executive. In a rejection of powerful royal governors appointed by the King, the states, at least Initially, made their governors almost powerless. Although problems created by a weak executive soon became apparent and were slowly corrected, “[b]y 1787, only four states had executives worthy of the name.[xi]
  • The Judiciary. Most states instituted an appointed judiciary, often appointed by the Governor (four states) or the Legislature (seven states).
  • Consent of the governed. In all but one state, the new constitution was simply put in effect as though it were a simple law. There were some murmurings, but the citizens generally accepted this “constitution by fiat.” But to be fair to the legislatures involved, they felt themselves to be representatives of the people.

Many states kept the other major features of the governmental structure that served them for so many years. One example from Delaware: “The sheriffs and coroners of the respective counties shall be chosen annually, as heretofore.”

So, what can rightfully be called innovations in the state constitutions? I’ve encountered few that could be called truly radical, but Delaware’s Constitution provides some examples:

  • A Declaration of Rights preceded the Constitution (Virginia led the way in this).
  • In Delaware alone were elected officials impeachable up to 18 months after leaving office.
  • Delaware’s Article 26 prohibited slavery, one of the first states to do so constitutionally.
  • No firearms were allowed to be carried at any election.
  • There was to be no establishment of any one religious sect in preference to another.
  • “No clergyman or preacher of the gospel…shall be capable of holding any civil office in this State.” (other states incorporated this feature as well).
  • The oath before assuming office in Delaware read: “I, ___, do profess faith in God the Father, and in Jesus Christ His only Son, and in the Holy Ghost, one God, blessed for evermore; and I do acknowledge the holy scriptures of the Old and New Testament to be given by divine inspiration.”

What of the various state bills or declarations of rights?  How did they compare with what eventually became the U.S. Constitution’s Bill of Rights?

Beginning with Massachusetts, the Anti-federalists began insisting that their vote for ratification would only materialize if there were a “gentleman’s agreement” that both amendments and articles for a future bill of rights would be accepted and submitted with the ratification instrument. When he arrived at the first Congress under the new U.S. Constitution, James Madison set to work reviewing these submissions from the states and incorporating those with the greatest appeal. It should come as no surprise to find parallels between the state Declarations and what became the U.S. Bill of Rights. But there were exceptions – suggestions that were either rejected by Madison or rejected by the Congress after Madison included them in his draft to the Congress. Notably, several verbatim quotes from Virginia’s Declaration of Rights were rejected by the Congress after appearing in the draft.

In summary, as Willi Paul Adams concludes: “The most significant accomplishment of the American Revolution, apart from the military achievement of independence, was the successful establishment of republican, federal, and constitutional government in a territory so extensive by European standards that conventional wisdom considered only monarchical government suitable for such an empire.”[xii]

Donald Lutz takes a different view: “[t]he (U.S.) Constitution … successfully created a new constitutional system appropriate to new political circumstances, it conserved what was best and central in the earlier American constitutional tradition, and it bult upon and in many important respects derived from state constitutions.”[xiii](emphasis added)

While the American states were intended to be experiments in government, and they have in many respects played that role over our 230+ years, there was still remarkable similarity in the thinking of the drafters of the early state constitutions as they considered what were the ingredients to “good government.” The fact that Massachusetts operates today from their 1780 Constitution, albeit with 120 amendments, remains a testament to the wisdom of America’s founding generation.

Gary Porter is Executive Director of the Constitution Leadership Initiative (CLI), a project to promote a better understanding of the U.S. Constitution by the American people. CLI provides seminars on the Constitution, including one for young people utilizing “Our Constitution Rocks” as the text. Gary presents talks on various Constitutional topics, writes periodic essays published on several different websites, and appears in period costume as James Madison, explaining to public and private school students “his” (i.e., Madison’s) role in the creation of the Bill of Rights and the Constitution. Gary can be reached at gary@constitutionleadership.org, on Facebook or Twitter (@constitutionled).

[i] Donald S. Lutz, The Origins of American Constitutionalism, Louisiana State University Press, 1988. p. 97.

[ii] Donald S. Lutz, Ibid. p`. 99.

[iii] Charles Warren, Congress, the Constitution, and the Supreme Court. 1925

[iv] Resolution of the Confederation Congress, February 21, 1787.

[v] Rhode Island decided to retain the structure of government described in their Royal Charter although the linkage to the British government had of course been severed. Rhode Island operated from this modified charter until 1842.

[vi]Resolved, That it be recommended to the respective assemblies and conventions of the United Colonies, where no government sufficient to the exigencies of their affairs have been hitherto established, to adopt such government as shall, in the opinion of the representatives of the people, best conduce to the happiness and safety of their constituents in particular, and America in general.”

[vii] Giving Massachusetts the distinction of having the longest continuously-operating constitution in the world today.

[viii] https://en.wikipedia.org/wiki/Colonial_government_in_the_Thirteen_Colonies

[ix] Virginia Constitution, 1776, Article 1, Declaration of Rights, Sec. 5.

[x] Charles Warren, Congress, the Constitution, and the Supreme Court. 1925, p. 24

[xi] Donald S. Lutz, Ibid. p. 106

[xii] Willi Paul Adams, The first American Constitutions, 2001, p. 5-6.

[xiii] Donald S. Lutz, Ibid. p. 109

 

Click here for American Exceptionalism Revealed 90-Day Study Schedule
Click here to receive our Daily 90-Day Study Essay emailed directly to your inbox

Guest Essayist: Adam Carrington
Independence Hall, Philadelphia


We don’t always get it right the first time. Sometimes, experimentation then leads to true success. Those statements prove true for many situations, professional and private. The Founders experienced both with their first forays into constitution-making in the 1770s and the 1780s. Those efforts included the Articles of Confederation, our first national constitution. Our current Constitution replaced it after a short, tumultuous time.

Here, though, we will focus on the efforts made at the state level. The former colonies needed their own governing documents to set the conditions for rule. These first efforts saw some success and some need for serious improvement.

First, these constitutions got the source of rule correct. The constitution for North Carolina (1776), opened by declaring, “That all political power is vested in and derived from the people only.” New Hampshire (1776) based its constitution’s power on the “free suffrages of the people of said colony.” This reasoning aligned with another document from 1776, the Declaration of Independence. That work of the Second Continental Congress declared that governments derive “their just powers from the consent of the governed.” This point itself derived from the Founders’ commitment to human equality, expressed by the fact that no person should rule another without pre-conditioned agreement.

Second, these constitutions in general got the purpose of government right. Massachusetts’ constitution (1780), penned by John Adams, said the purpose of government resided in the power “to furnish the individuals who compose it with the power of enjoying, in safety and tranquillity, their natural rights and the blessings of life.” This reasoning, too, aligned with the Declaration of Independence. It declared that all human beings possessed “unalienable rights,” meaning claims on others that no one else could infringe. It then said that “to secure these rights, governments are instituted among men.” Government exists because we have these rights but cannot adequately enjoy them due to threats from others. Political society forms to offer protection of these rights for their better use by each person.

Third, however, these state constitutions tended to struggle to rightly structure their institutions. In particular, they correctly sought a government organized around the concept of separation of powers. WE must understand this point before saying how they struggled with it. This theory said that government power is based on the rule of laws. However, law requires three functions to rule properly.

First, one must make law—the legislative power. Some may say we could stop there. However, that would leave government inadequate to its task. We know that merely saying what someone should do does not always get obedience. Sometimes people will disobey the law even when they know it. Think of many of us on highways with speed limits. That brings in the second task of government under the rule of law. A government must enforce those made laws—the executive power. Executive power brings coercive force to bear in service of the laws, to make sure people obey them and thus do not infringe on rights. Third and finally, a tribunal must exist to interpret and apply the law when disputes arise regarding it—the judicial power. People may know the law but not agree on whether someone broke or followed it. That factual question is what juries often decide in trials. People may agree on what happened but disagree about the wording of the law in relation to what happened. Judges make these calls, trying to apply the law’s words faithfully to the actions in a case before him or her. Together, these three powers ensure the law rules, both our constitutions and the statutes made under them.

Most state constitutions affirmed separation of powers. Article VI of the Maryland constitution’s declaration of rights (1776) said, “That the legislative, executive and judicial powers of government, ought to be forever separate and distinct from each other.” However, many states structured their separation of powers to make the legislative power too strong and the other branches too weak. Doing so did not deny separation of powers on paper. But it did so in practice.

States such as Pennsylvania and Virginia in particular created very weak executives. They quickly came under the control of the state legislatures. James Madison saw this problem in the 1780s. Having seen what happened with state constitutions, Madison wrote in Federalist 48 that, “The legislative department is everywhere extending the sphere of its activity, and drawing all power into its impetuous vortex.” In some sense, legislative dominance was natural. Legislative power made the laws that other branches must then carry out. That gave it an advantage. Also, in a popular government, people would see themselves more in the numerous, lawmaking legislature than the much different executive or judicial branches.

We must not underestimate the problem with separation of powers failing in practice in these states. The Founders knew and said that any combination of legislative, executive, and judicial power together led to tyranny. It did so because it allowed one entity to take over the laws and start using them as it wished. The law then became a tool for human beings to oppress one another, not a guide and restraint to rule over them.

Thankfully, not all constitutions fell prey to this problem. New York’s 1778 constitution, for example, gave a strong executive that maintained independence from that state’s legislature. It became an example members of the Constitutional Convention looked to for constructing our American President. In other ways, our Founders learned from the other states’ mistakes in how they constructed the national Constitution. They put in a system of checks and balances to work alongside separation of powers. These checks gave each branch ways to limit the power of the other branch. Ambition would check ambition, as Madison would write in Federalist 51. Sometimes, these checks even meant giving a little of one branch’s power to another. Thus, the president’s veto power is a legislative power to make laws. But it helps protect that office against legislative encroachments. Even the powerful Congress possesses the impeachment power, lest a president or judges usurp their power or the Constitution’s.

Thus, we can be thankful we no longer have the state constitutions of the 1770s and 1780s. They needed improved upon. But we also should thank them for the good they did. They set out the proper origin and purpose of government, a commitment we only reinforced through our subsequent history. And they taught us how to structure our government better. They gave us the experience that showed how to separate governmental powers to support the rule of law and by it human equality and liberty.

Adam M. Carrington is an Associate Professor of Politics at Hillsdale College. There, he teaches on matters of Constitutional law, American political institutions, and separation of powers. His writing has appeared in such popular forums as The Wall Street Journal, The Hill, National Review, and Washington Examiner. His book on the jurisprudence of Justice Stephen Field was published in 2017 by Lexington. Carrington received his B.A. from Ashland University and his M.A. and Ph.D. from Baylor University. He lives in Hillsdale with his wife and their two daughters.

Click here for American Exceptionalism Revealed 90-Day Study Schedule
Click here to receive our Daily 90-Day Study Essay emailed directly to your inbox

Guest Essayist: James C. Clinger


The federal, or United States Constitution, drafted during a hot summer in Philadelphia in 1787 was not the only constitution written in that time period, nor was it the first. Earlier, as the former American colonies became newly formed states, they adopted new constitutions that would later influence other states and even the form of the federal Constitution. These documents became the first statements of how republican government would be framed and put into practice.[1] According to Akhil Reed Amar, within these constitutions were “certain overarching elements that are now so commonplace that we forget how truly revolutionary they were in 1776: writtenness, concision, replicability, rights declaration, democratic pedigree, republican structure, and amendability.”[2]

Most of the new constitutions roughly resembled the colonial charters that they replaced. Connecticut and Rhode Island even retained their colonial charters with only minor modification. But some states began a serious effort to craft their own, unique constitutions which would both empower and constrain state government as well as protect the rights and liberties of their people. New Hampshire drafted its constitution even before independence was declared, and several others followed suit while the revolution was being fought.[3]

Many of those early state constitutions were hastily drafted under adverse conditions. The threat of approaching British troops forced some constitutional conventions to adjourn and reconvene multiple times.   Some states’ constitutional framers were not completely convinced that the revolution would be successful.[4] According to Article 26 of New Jersey’s constitution of 1776, “if Reconciliation between Great Britain and these Colonies should take place, and the latter be again taken under the Protection and Government of the Crown of Great Britain, this Charter shall be null and void, otherwise to remain firm and inviolable.”

There were certain commonalities in the various constitutions, but a number of unique features in particular states. All states provided for some separation of powers which would become a distinctive feature of both state and federal governments. Most states provided for a fairly weak executive, although in many respects the chief executive, almost always referred to as a governor, was more powerful than any executive in the national government under the Articles of Confederation. Many states did not provide for a veto for their governor, and some gave veto authority to a plural body, sometimes called a council of censors.[5]

Most state legislatures were bicameral, although both Pennsylvania and Georgia established a single chamber in their initial constitutions.   There were usually property requirements to hold office in the legislature, with stricter requirements for members of the upper chamber. The lower chambers’ members were directly elected by the voters. This was usually the case for the members of the upper chamber, which today in every state is called a senate, but in Maryland the senators were chosen indirectly with voters selecting electors who would then select the members of the senate. A few states later adopted this method, and a few for a short time used electors to select their governor.   Direct election of the governor was established in only five of the original thirteen states’ initial constitutions. In the remaining states, the legislature would select the chief executive.[6] Under the initial state constitutions, judges were either appointed by the legislatures or by the governor with approval of the legislature or at least the senate. The legislature was generally permitted to change the compensation of judges at will, thus diminishing the courts’ reputations for independence.[7]

The terms for almost all offices in the early constitutions were very short. With one exception, all states limited the length of lower legislative house members’ terms to one year. South Carolina had two-year terms. Most states’ senators served terms of one or two years, as did most governors and many judges. These brief terms were a primary check on the behavior of public officials.[8]

The early state constitutions established suffrage requirements for state voters. Most states required property holding requirements, but those varied dramatically from state to state. Property requirements might also vary for the electors of different offices. To vote in elections for the lower legislative chamber, Pennsylvania and North Carolina offered the franchise to all freemen who paid taxes. To vote for members of the state senate, North Carolina required ownership of fifty acres of land. New Hampshire imposed a poll tax. New Jersey had a minimum property requirement of fifty pounds value that applied to suffrage for all state office.[9] These voter qualification requirements had implications for voting in elections for the federal House of Representatives, once the U.S. Constitution took effect, since Article I, Section 2 stipulates that the voters for the U.S. House of Representatives “shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.”

Some, but not all, of the new constitutions included a bill of rights or a declaration of rights. Some of the language in these declarations was largely precatory, with admonitions that state government “ought” not to do certain things, such as impose excessive bail. Other language seems to impose more of a binding commitment on the government. Some of the rhetoric is fairly sweeping, such as the declaration in the Virginia Declaration of Rights that all men are “born free.” The absence of a bill of rights in the federal Constitution was a contentious issue during its ratification. But that issue was resolved with the passage of the first ten amendments. These state declarations became a model for the Bill of Rights, although there were notable differences between the first state declarations and the federal Bill of Rights. The state declarations usually referred to rights to jury trials, the free exercise of religion, and the right to bear arms. The very first state constitutions did not refer to a general freedom of speech, although later constitutions did. Notably, most state constitutions did not include a state equivalent of the federal Establishment Clause.[10] Some constitutions, in fact, authorized state government to support religious institutions[11] and several authorized religious tests for holding certain public offices.[12] The initial constitutions of the original thirteen states did not mention slavery as an institution, although a few rhetorically declared that the British monarch had enslaved the American colonies. Provisions defending, limiting, and abolishing slavery within different states would appear in subsequent constitutional revisions in the coming years.[13]

Some of the early state constitutions were hastily written and did not even provide a provision for amendment. Thus, constitutional changes took place through wholesale re-writes of the documents. Many states drafted entirely new constitutions in the first few years of the republic, and more constitutions were written and ratified as new states were added to the union. Many of those constitutions borrowed from the existing constitutions of other states. For example, about 70% of the 1792 constitution of the new state of Kentucky was taken almost word for word from the Pennsylvania constitution of 1790.[14] Of course, many features of the federal Constitution borrowed somewhat from the state constitutions. Most early state constitutions or amendments were adopted through a legislative process. The constitution of the Commonwealth of Massachusetts was one of the first to require approval by voters. In that instance, the document was voted upon by local towns and townships. Today, most states require a public referendum to approve new constitutions or constitutional amendments.[15]

Acknowledgements: The author would like to thank Dr. James Humphreys for his comments on an earlier draft of this essay. Any errors are the responsibility of the author.

James C. Clinger is a professor in the Department of Political Science and Sociology at Murray State University. Dr. Clinger teaches courses in state and local government, Kentucky politics, intergovernmental relations, regulatory policy, and public administration. Dr. Clinger is also the chair of the Murray-Calloway County Transit Authority Board and a past president of the Kentucky Political Science Association. He currently resides in Hazel, Kentucky. 

[1] Adams, Willi Paul.. The First American Constitutions: Republican Ideology and the Making of the State Constitutions in the Revolutionary Era / Willi Paul Adams; Translated by Rita and Robert Kimber; with a Foreword by Richard B. Morris. Expanded ed. Rowman & Littlefield Publishers; 2001.

[2] Amar, Akhil Reed.   The Words That Made Us: America’s Constitutional Conversation, 1760-1840.  Basic Books,

2021.

[3] Adams, loc cit.

[4] Squire, Peverill.  The Evolution of American Legislatures: Colonies, Territories, and States, 1619-2009.  Ann Arbor: University of Michigan Press.   p.83

[5] Squire, loc cit., p. 87

[6] Lutz, Donald S. “The Theory of Consent in the Early State Constitutions.” Publius 9, no. 2 (1979): 11–42.

[7] Tarr, G. Alan.  “Contesting the Judicial Power in the States.”   Harvard Journal of Law & Public Policy 35, no. 2 (2012): 643-661.

[8] Lutz, loc cit.

[9] Lutz, loc cit.

[10] Lutz, Donald S. “The State Constitutional Pedigree of the U.S. Bill of Rights.” Publius 22, no. 2 (1992): 19–45.

[11] Vincent Phillip Muñoz, “Church and State in the Founding-Era State Constitutions.”   American Political Thought  4, (Winter 2015):1-38.

[12] Wilson, John K. “Religion Under the State Constitutions, 1776-1800.”  Journal of Church and State.  32, no. 4 (1990): 753-773.

[13] Herron, Paul E. “Slavery and Freedom in American State Constitutional Development.” Journal of Policy History 27, no. 2 (2015): 301-336.

[14] Ireland, Robert M.  “The Kentucky Constitution.”  Clinger, James C., and Michael W. Hail.  Kentucky Government, Politics, and Public Policy. Lexington, KY: The University Press of Kentucky, 2013.

[15] Tarr, 2000

Click here for American Exceptionalism Revealed 90-Day Study Schedule
Click here to receive our Daily 90-Day Study Essay emailed directly to your inbox

Ken has spent more than two decades working at the highest levels of national policy and communications. He serves as the policy translator for the firm’s communications strategies to ensure that complex issues in areas such as healthcare, transportation, technology, homeland security, and many others, are understandable and actionable for clients’ intended audience(s).

Prior to joining the firm, Ken served as Chief Counsel and Deputy Staff Director of the U.S. Senate Commerce Committee where he served under then-Chairman Ted Stevens of Alaska. Ken also served under Committee Chairman John McCain. Ken joined the Committee after serving as an attorney in the Issues and Appeals Division of the law firm Jones Day, and also as Senior Law Clerk to the Honorable Donald Ivers on the U.S. Court of Appeals for Veterans’ Claims.

Ken is a graduate of Miami University in Oxford, Ohio, and Capital Law School in Columbus, Ohio. He is a proud-native of Cleveland, Ohio, and he is married with two teenage children.

In 2000, Keith realized his vision for a multidimensional communications strategy firm that not only focused on the public relations needs for clients but also designed growth strategies for companies and organizations ranging from small start-up businesses and nonprofits to multinational corporations.

Keith believes that every organization has a story to tell. When the story is told well and strategically, that organization will be better equipped to reach its goals.

A 27-year veteran with top-level experience advising, designing, and managing some of the largest campaigns in US history, Keith has worked for governors, members of Congress, and served in the White House under the first Bush Administration. His work has taken him around the world to dozens of countries and almost every state in the nation. Among other roles, Keith has served as Special Assistant to the Vice President of the United States, Special Assistant to the Governor of New Jersey, consultant to the Secretary of Health and Human Services (HHS), consultant with top-secret security clearance to national security agencies, and campaign manager to Congresswoman Michele Bachmann in the 2012 presidential campaign.

Among his many career achievements, Keith has worked for six presidential campaigns, managed the messaging priorities for HHS at the request of the Secretary, and orchestrated both the Medicare Part D prescription drug enrollment campaign and the HHS Prevention and Value Driven campaign.

Keith has significant experience working with the media and has been a frequent source of commentary for national news outlets, including the Washington Post, New York Times, Boston Globe, Wall Street Journal, ABC, CNN, NBC, CBS, Fox News, NPR, and others.

Keith is married to his wife Courtney and holds a B.A. in History from the College of Wooster.

From a very early age, music was an integral part of Wil Gravatt’s life. Wil’s mother worked for the legendary Capitol Records; and he was exposed to the sounds of the Beatles, Janis Joplin, Buck Owens, and Waylon Jennings to name a few. His first love was the drums; teaching himself to play and forming his first band when he was only 14. More of a rocker in the early years, Wil switched to country music in his late teens while in college. He bought an acoustic guitar and taught himself to play by listening to BB King, Bruce Springsteen, and others.

Wil released a solo record “Ready to Cross That Line” in the late 90’s to critical acclaim. In the early 2000’s Wil put together a band of high-caliber musicians and started performing many energetic shows to a packed house at the now-defunct Whitey’s in Arlington, VA. Eventually they released “Live at Whitey’s.” It’s a staple of the collection of many country music fans.

In 2005 and 2009 the band was invited by Presidents Bush and Obama to perform at their respective Inaugural Balls – quite an honor for any band. The Wil Gravatt Band has shared the stage with Robert Earl Keen, Lynyrd Skynyrd, Pat Green, Little Big Town, ZZ Top and myriad other renowned artists. Based in Washington, DC they continue to perform 75+ shows a year to long-time fans and new recruits to their unique brand of high-energy Honky Tonk music.

The band features former Danny Gatton sideman Steve Wolf on bass, Gary Crockett on drums and vocals, Jimbo Byram on steel guitar, Bobby Spates on fiddle, and Wil on vocals and guitar. A new album of original music recorded in Nashville is slated for release in late 2016.

Peter Roff is a longtime Washington, D.C. writer and commentator whose work has appeared in U.S. News & World Report, Newsweek, and other publications. He appears frequently on radio and television and holds fellowships with several public policy organizations. He can be reached by email at RoffColumns@GMAIL.com. Follow him on Twitter @PeterRoff.

At one time the political director of Newt Gingrich’s GOPAC, Mr. Roff planned and directed political education programs that trained tens of thousands of candidates for public office and political activists. Prior to his years at GOPAC, he spent nearly five years as executive director of Americans for Tax Reform, the organization that created the “Taxpayer Protection Pledge.”

Leaving politics in the late 1990s, he began a new career as a journalist, spending five years as the senior political writer for United Press International.

While at UPI he regularly filled the wire with breaking news and analysis, working on some of the biggest political stories of the 20th century including the September 11, 2001 terrorist attack and the election of George W. Bush in one of the narrowest political contests in U.S. history.

A frequent commentator on politics and public issues, Mr. Roff has appeared on a variety of radio and television programs including “CBS News Overnight,” “Politically Incorrect with Bill Maher,” “The Dennis Miller Show,” “Hannity & Colmes,” “The O’Reilly Factor,” “C-SPAN’s Washington Journal,” and even once appeared as himself on the hit ABC comedy “Spin City.”

Mr. Roff’s observations have been quoted in major publications including USA TodayThe New York Times, the online version of The Wall Street JournalThe Washington Times, The Christian Science Monitor, and National Review.

A 1988 graduate of The George Washington University, Mr. Roff has lived in Northern Virginia for much of the last 25 years along with his children and his beagle Watson.

Nashville songwriter Steve Dean has co-written six number one hits, including the most played song on country radio in 2007, “Watching You” for Rodney Atkins, the Grammy nominated “It Takes A little Rain” for The Oak Ridge Boys, “Southern Star” for Alabama, “Round About Way” for George Strait, “Walk On” for Reba McEntire and “Heart’s Aren’t Made To Break” for Lee Greenwood.

Among Steve’s musical influences are The Beatles, The Byrds, The Eagles, Buck Owens,
Johnny Cash, and Roger Miller.

Steve’s songs have been recorded by LoCash Cowboys, Joe Nichols, Dierks Bentley, Lee Ann Womack, Waylon Jennings, The Roys, Pure Prairie League, John Michael Montgomery, Point of Grace, Conway Twitty and others.

Steve has earned eight BMI Songwriter Awards, two BMI Publisher Awards, two BMI 2 Million Air Awards and three BMI 1 Million Air Awards.

Steve’s song “Walk On” is on the Grammy winning CD, Reba’s Greatest Hits Volume 2.
Steve’s song “Expecting Good Things”, is the title track to Jeff and Sheri Easter’s Grammy nominated CD “Expecting Good Things”.

As a singer/songwriter, Steve lets his audience in on a behind the scenes look at, and a unique opportunity to hear the stories surrounding the inspiration for and why these songs were written.

Mark Rodgers is the Principal of The Clapham Group, a company that seeks to influence culture upstream of the political arena. Mark served as the third-ranking Republican leadership staffer in the U.S. Senate for six years overseeing strategic planning and strategic communications. He also served as a high profile chief of staff to Senator Rick Santorum, working on Capitol Hill for a total of 16 years. He was known on the Hill for his work on such issues as poverty alleviation and global AIDS, as well as protecting life at its most vulnerable stages. Mark is a published writer and a speaker at large and small gatherings on the topics of faith and public life, culture and caring for the least of these. His work over the years has involved consulting with some of the largest foundations in the world, Fortune 500 companies, internationally known music artists and filmmakers, and even famous comic book creators. He is a published writer and a speaker on the topics of faith and public life, culture and caring for the least of these.  His work over the years includes outreach to “culture creators,” and he has worked closely with artists from diverse fields including computer gaming, graphic novels, film and music.  Mark is also a social entrepreneur, and enjoys finding ways to help people “do good while doing well.”

He earned a bachelor’s degree in petroleum engineering from Penn State, and attended Trinity Episcopal School for Ministry. Mark is married to Leanne, and together they have four children and four grandchildren. Mark resides in Burke, Virginia.

Gail MacKinnon joined the Motion Picture Association (MPA) in November 2017 and is the current Senior Executive Vice President for Global Policy & Government Affairs. A skilled senior executive with experience in public policy advocacy, issues management, and strategy development, Gail oversees the MPA’s government relations portfolio and policy agenda, as well as its international advocacy and policy, including in the APAC and EMEA regions.

Previously, Gail served as Executive Vice President, Government Relations for Time Warner Cable, where she led all aspects of federal, state, and local government relations for the telecommunications company. She positioned the company as a trusted advisor to government leaders on a range of public policy issues; including video reform, cybersecurity, tax, and privacy.

Prior to her role at Time Warner Cable, Gail was Senior Vice President of Government Relations at the National Cable & Telecommunications Association. She has held senior positions at Viacom, CBS Inc., Telecommunications Inc., and Turner Broadcasting. She began her career on Capitol Hill, serving as Legislative Director for Congressman Jack Fields (R-TX).

In 2016, Gail helped co-found WE Capital, a consortium of women in the Washington, D.C. business community investing in female-led startups focused on social impact work. She was named one of Washingtonian’s Most Powerful Women in 2019. Gail received a Bachelor’s degree from Georgetown University.

Born and raised in Dallas Texas, Moses Uvere was the first born to Patience and Gabriel Uvere, immigrants who came to America to seek “the American Dream.” Being brought up by parents from a different country, Moses witnessed firsthand what “the American Dream” was all about and the struggle to achieve a better life. Living in poverty-stricken areas Moses had an up-close view of growing up poor, sharing clothes with his brothers, wearing hand-me-downs, and not getting much during the holidays. Moses was an active kid who always played sports and was a fine football prospect in high school where his career was cut short. Due to the fact that his mom left the family, he the eldest of the four had to grow up quickly to help his dad raise his two little brothers and his little sister. “The things in my life didn’t break me, but made me the man I am today.” Music had always been a part of his life and after being in the group minority authority for a few years, Moses struck out on his own. He met up with Dustin Cavazos who produced his first release, From Worse to Better. (2008) The album is a reflection of past experiences that he has seen and lived. A few years later, (2011) Uvere signed a record deal with Universal / Motown producer Geoff Rockwell under the imprint of chaos creative and released an album entitled Mind the Gap which received critical acclaim. Following that album, Uvere had his highest-profile release yet with Never Been Better which led him to be in front of 13.9 million people (according to anchor marketing), with his latest release Kingdom of the Fallen. The album reached the top 100 of the iTunes charts and was followed up with a performance at the historic Klyde Warren Park as the first Christian hip hop artist in its history to be invited as a headliner. Each project of his musical offerings was influenced by artists such as Kanye West, Common, Pigeon John, Issac Hayes, and Musiq Soulchild. He is a husband, a father of three, and currently the Lead Pastor at the Vine of Life in Garland, TX.

Shane Tews is a nonresident senior fellow at the American Enterprise Institute, where she focuses on cybersecurity issues, including privacy and data protection, next-generation networking (5G), the Internet of Things, international internet governance, digital economic policy, information and communications technology, artificial intelligence (AI) and the metaverse, cryptocurrency and non-fungible tokens, and emerging technologies. She is also president of Logan Circle Strategies, a strategic advisory firm.

She is vice chair of the board of directors of the Internet Education Foundation; chair of the Internet Society’s Washington, DC, chapter; member of the board of SeedAI; chair of the board of directors at TechFreedom; and chair of the Dynamic Coalition on the Internet of Things of the Internet Governance Forum.

Previously, Ms. Tews served as co-chair of the Internet Governance Forum USA. She was a member of the board of the Information Technology and Innovation Foundation, the Information Technology Industry Council, and Global Women’s Innovation Network. She also managed internet security and digital commerce issues as vice president of global policy for Verisign. She began her career in the George H. W. Bush White House as a deputy associate director in the Office of Cabinet Affairs and later moved to Capitol Hill as a legislative director for Rep. Gary Franks (R-CT).

Ms. Tews studied communications at Arizona State University and American University, where she graduated with a bachelor’s degree in general studies with an emphasis on communications and political science.

Experience

  • Logan Circle Strategies: President, 2014–present
  • Vrge (formerly 463 Communications): Outside Policy Consultant, 2015–19
  • 463 Communications: Principal and Chief Policy Officer, 2012–15
  • Internet Education Foundation: Vice Chair, Board of Directors, 2011–present; Member, Board of Directors, 2004–11
  • Verisign: Vice President of Global Public Policy and Government Relations, 2001–12
  • Distilled Spirits Council of the United States: Vice President for Federal Affairs, 1997–2001
  • Citizens for a Sound Economy and Citizens for a Sound Economy Foundation: Director of Government Relations, 1995–97
  • Office of Congressman Gary A. Franks (R-CT), US House of Representatives: Legislative Director, 1992–95
  • The White House: Deputy Associate Director, Office of Cabinet Affairs, 1991–92
  • US Department of Transportation: Special Assistant to the Assistant Secretary for Congressional and Intergovernmental Affairs, 1991; Staff Assistant to the Secretary of Transportation for Scheduling and Advance, 1989–91

Education

BA, public relations and political science, American University
Attended Arizona State University

Guest Essayist: Tony Williams


The Americans of the founding period were a strongly Protestant people of various denominations including dissenting Presbyterians, Baptists, and Congregationalists. Some historians have estimated that Protestants made up over 98% of the American population. Their Protestantism was characterized by a strong dissenting tradition against religious and civil tyranny as well as a strong streak of individualism.

Their Protestantism—especially the Puritan tradition—was also exemplified by appeals to the natural law in its covenant theology that was consistent with Lockean social compact theory. Covenant theology caused Americans to view themselves as a Chosen People of a new Israel who formed a covenant with God. The natural law of covenant theology was consistent with both reason and revelation as they reconciled their reason and faith in the natural law and natural rights philosophy of the American Revolution.

The American founders drew from a variety of traditions in arguing for their natural rights and liberties. Ancient thought from Greece and Rome, the English tradition, and the ideas of John Locke and other Enlightenment thinkers combined with Protestantism for a rich tapestry. While the Enlightenment provided a strong influence on the founders, the contribution of their religious beliefs has often been downplayed or ignored. The average American colonial farmer or artisan may not have read John Locke’s Two Treatises of Government or ancient philosophy, but they heard dissenting religious ideals and Lockean principles from the pulpit at religious services.

Toward the end of his life, Thomas Jefferson had cause to reflect on the meaning of the Declaration of Independence, a document which later influenced the United States Constitution. He wrote to Henry Lee in 1825 about the purpose of the Declaration:

“This was the object of the Declaration of Independence. Not to find out new principles, or new arguments, never before thought of, not merely to say things which had never been said before; but to place before mankind the common sense of the subject, in terms so plain and firm as to command their assent…it was intended to be an expression of the American mind, and to give to that expression the proper tone and spirit called for by the occasion. All its authority rests then on the harmonizing sentiments of the day.”

The “harmonizing sentiments” of the 1760s and 1770s supported a natural law opposition to British tyranny in the American colonies. James Otis was one of the earliest articulators of natural law resistance. In 1764, he wrote, “Should an act of Parliament be against any of his natural laws, which are immutably true, their declaration would be contrary to eternal truth, equity, and justice, and consequently void.”

In 1774, Thomas Jefferson expressed the same sentiments in his Summary View of the Rights of British America. In the pamphlet, he wrote that God was the author of natural rights inherent in each human being. The Americans were “a free people claiming their rights, as derived from the laws of nature, and not as the gift of their chief magistrate… the God who gave us life gave us liberty at the same time: the hand of force may destroy, but cannot disjoin them.”

A year later, a young Alexander Hamilton wrote a pamphlet, Farmer Refuted, in which he eloquently described the divine source of universal rights. “The sacred rights of mankind are not to be rummaged for, among old parchments, or musty records. They are written, as with a sun beam, in the whole volume of human nature, by the hand of the divinity itself; and can never be erased or obscured by mortal power.”

These “expressions of the American mind” were common formulations of natural rights that influenced the Declaration of Independence. The four mentions of God in the document demonstrate their understanding of the divine, but it also showed that God was the author of good government according to natural law.

First, the Declaration appeals to the “separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.” This first mention of God is that of Protestant and Enlightenment natural law. They saw God as the author of truth in the moral order of the universe. This moral order defined their thinking about republican self-government.

Second, the Declaration asserts that, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” God is the Creator and author of natural rights in this formulation. Since rights are from a higher authority, no earthly power can violate an individual’s inherent rights. Interestingly, God here acts as a supreme legislator who makes the natural law and grants natural rights.

Third, the Declaration appealed to “the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these United Colonies are, and of Right ought to be Free and Independent States.” God is a judge who authored the idea of justice and who judges human actions. God here represents the judicial branch of government.

Fourth, the Declaration stated that, “With a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.” Americans believed that God was a providential God who intervened in human affairs and protected his Chosen People. This conception of God represents the executive branch of government.

The Declaration of Independence was a reflection that the American natural rights republic was rooted in the natural law. Reason and divine revelation supported the natural law that shaped a good government built upon the understanding of human nature and the rights given to human beings by God.

In Federalist #1, Alexander Hamilton explained the entire purpose of establishing free government based upon the principles of the Declaration of Independence and Constitution. He stated that Americans had the opportunity and responsibility to form good government by “reflection and choice,” not by “accident and force.” The United States was founded uniquely upon a set of principles and ideals.

In 1861, President Abraham Lincoln had occasion to reflect upon the principles of the American Founding. Using a biblical metaphor, he thought that the Declaration of Independence was an “apple of gold” because it contained the foundational principles of the new country. The Constitution was the “picture of silver” framing the apple with the structures of republican government, thus preserving the purpose of the Declaration. In the mind of Lincoln—and those of the Founders—an inextricable link bound together the two documents in creating a free government.

Tony Williams is a Senior Fellow at the Bill of Rights Institute and is the author of six books including Washington and Hamilton: The Alliance that Forged America, with Stephen Knott. Williams is currently writing a book on the Declaration of Independence.

 

Click here for American Exceptionalism Revealed 90-Day Study Schedule
Click here to receive our Daily 90-Day Study Essay emailed directly to your inbox

 

Guest Essayist: J. Eric Wise


Everything comes back to the Declaration of Independence. In a way, the seeds of the Federalist Anti-federalist dispute in the framing of the Constitution were sown in the Declaration.

The Declaration of Independence established the basis of just government as consent as against the divine right of kings. To quote Thomas Jefferson, “the mass of mankind has not been born with saddles on their backs, nor a favored few booted and spurred, ready to ride them.”

Consent leads to forms of majority rule, although it must be a reasonable and restrained majority which respects the rights of the minority. Consent requires some kind of deliberation for the sake of forming consensus, and public deliberation over a proposed charter leads to disputes for and against.

But that is not the sole connection. The Declaration of Independence establishes a right of revolution. Whenever a government becomes abusive of the ends of just government it is the right of the people to alter or abolish it. Revolution is an extra-legal right. The oppressions of King George – “[a] Prince whose character is thus marked by every act which may define a Tyrant” – entitled the colonists to rebel, illegally.

The Declaration of Independence – a “unanimous Declaration of thirteen united States of America” – also stated that “That these United Colonies are, and of Right ought to be Free and Independent States.”  A new nation was born that was having a hard time saying clearly whether it was one nation or many. Babes lisp, and so it was with the young United States.

The first charter of the United States was entitled the Articles of Confederation and Perpetual Union. Confederation comes from the Latin con meaning “with or together” and foederare meaning treaty or league. Again, the early babble of United States suffered some polysemy. It was a union that was perpetual but also a treaty of several states.

The Articles of Confederation, as a practical matter, were inadequate. Among other things, the new government was unable to enforce its laws directly and the scope of its powers was narrow, particularly in commercial and financial matters. The result was a chaos of creditor-debtor disputes and a moribund economy that began to threaten the viability of the United States. Both France and Britain anticipated the collapse of the new United States, and were eager to pick up the pieces.

A convention was called in 1787 to repair the defects of the Articles.  The convention produced a proposal for an entirely new charter, the Constitution, to replace the Articles. The Constitution would have many new features, including drawing its authority directly from the people rather than a compact of states, exclusive coinage and bankruptcy power, and a radically new executive power embodied in a president of the United States. It also proposed that it would be deemed adopted when ratified by only nine states.

This last proposal flatly contradicted the Articles. The Articles required a unanimous vote of its member states for amendment. Like the revolution the proposal for a new Constitution, though an appeal to ballots and not bullets, was illegal.

The ground for the adoption of the Constitution was similar to that of the Revolution, an appeal to the “necessity” and (echoing the Declaration) the “law of nature and nature’s God.” The Articles were incompetent and had to be “thrown off” to for the “preservation” the country. Federalist 43.

In politics it is important to pick the name of your movement.  If you do not, your political adversaries will pick it for you. The proponents of the new Constitution, led by Alexander Hamilton, James Madison and John Jay, took the name Federalist. Opposition to the new Constitution was labeled Anti-federalist, locking in rhetorical disadvantage.

Anti-federalists argued with some alarm that the new Constitution permitted the national government to resort to force. Federalists argued that the states were protected from invasion by the Federal power by their militias and from domestic insurrection or invasion by the new federal government. Federalist 28.

The Anti-federalists argued that the confederal form should have been preserved. The Federalists argued that the proposed government was “partly federal and partly national.” Federalist 39.

Anti-federalists argued that the convention did not have the authority to adopt the Constitution. The Federalists argued that the new Constitution was “necessary.” Federalist 40.

Anti-federalists argued that the proposed Constitution was too difficult to amend, and that it should be amended whenever a department of the government exceeds its authority. Federalists rebutted that frequent appeals to the people would undermine the authority and reasonableness of the new government. Federalist 49.

Anti-federalist argued that the judiciary was too independent.  Federalists argued that the new Constitution’s judiciary was its least dangerous branch, and that unconstitutional judicial decisions could be ignored. Federalist 78.

The Federalists prevailed, but experience has at times exposed weaknesses in the Federalist’s arguments. The federal government has overtime supplanted the states in their power. Appeals to the people to amend their Constitution have not just become infrequent, but have ceased almost altogether: The Constitution has not been amended “soup to nuts” in more than 50 years. And this has happened as the judicial power has expanded under the doctrine of a “living constitution” to displace the amendment function; this raises the question whether the Constitution can continue to be the people’s document if the courts, and not they, are its author in key respects.

J. Eric Wise is a partner in the law firm of Alston & Bird.

 

Click here for American Exceptionalism Revealed 90-Day Study Schedule
Click here to receive our Daily 90-Day Study Essay emailed directly to your inbox

Guest Essayist: Tom Hand
Declaration of Independence painting by John Trumbull depicting the five-man drafting committee, left to right: John Adams, Roger Sherman, Robert Livingston, Thomas Jefferson, Benjamin Franklin of the Declaration of Independence presenting their work to the Congress. The original hangs in the U.S. Capitol rotunda.


The Declaration of Independence was America’s first and, arguably, greatest document. It not only laid out the reasons why we should leave the British Empire but also eloquently explained a different set of rules by which a nation should be governed. The background leading to the creation of this document is critical to understanding its content.

At the end of the French and Indian War (or Seven Year’s War) in 1763, the British Empire’s treasury was depleted due to the terrible expense of the war. Although it had been fought in several parts of the world, King George and Parliament decided to recover much of the cost on the backs of their American subjects.

Parliament enacted the Stamp Act (taxes on most printed materials) in 1765 and then the Townshend Act (taxes to fund royal officials, as well as language reinforcing Parliament’s right to tax the colonies) in 1767. While Parliament felt it reasonable that the colonies share of the cost of the recent war, the colonists felt quite different.

To understand where the Americans were coming from, it is important to understand that for much of our early history the British Empire had neglected their American colonies. As a result, Americans had developed a strong independent streak. Out of necessity, our early leaders created their own assemblies and learned how to govern themselves.

Colonial officials reasoned that since the colonies were not directly represented in Parliament, that legislative body did not have the right to levy taxes on them. Not surprisingly, tensions rose over the course of the next few years as the Americans resisted and found ways to avoid paying these new taxes.

Following the Gaspee Affair in 1772 in which colonists burned a British ship, and the Boston Tea Party in 1773 when the Sons of Liberty threw a shipload of tea into Boston Harbor, Parliament attempted to assert its authority with a series of bills known in America as the Intolerable Acts (in England they were called the Coercion Acts).

They essentially stripped Massachusetts of most of the freedoms it had enjoyed since its founding. The harshness of these acts first surprised and then outraged people in all thirteen colonies. People reasoned if England could do that to one, they could do it to all.

To address this crisis and craft a response, colonial leaders convened the First Continental Congress in September 1774. They met in Carpenters’ Hall in Philadelphia, and delegates attended from 12 of the 13 colonies; Georgia chose not to attend. They decided to impose a boycott on British goods and send King George a list of their grievances, but their petition fell on deaf ears.

As one month led into the next in 1775, matter grew worse. On April 19, American militiamen first fought British regulars at the Battle of Lexington and Concord, and on May 10 colonial leaders convened the Second Continental Congress in Philadelphia.

Most of the representatives still hoped for a reconciliation with England. After all, most still thought of themselves as English. Their ancestors had come over from England, their laws were based on English laws, and we spoke the same language.

Not surprisingly, the first point of business for Congress was to try to forge a reconciliation with England, and John Dickinson led this effort. Because most colonists viewed Parliament and not the King as the real problem, they sent a second petition, the so-called Olive Branch petition, directly to King George in July 1775. They soon found out they did not have a sympathetic ear with the King.

On August 23, in reaction to the Battle of Bunker Hill on June 17, Parliament passed the Proclamation of Rebellion which formally declared the colonies to be in a state of rebellion. By the time Congress’ petition arrived at court in late August, King George refused to even receive it, and the chance for reconciliation was essentially at an end.

Notified in late 1775 of these developments, John Adams and others who saw independence as the only choice for the colonies began to agitate for it. Then, in January 1776, Thomas Paine, an Englishman newly arrived in America, published a pamphlet called “Common Sense” which advocated for complete independence from England. His timing was perfect.

Much like Harriett Beecher Stowe’s “Uncle Tom’s Cabin” crystallized the abolitionist movement in the 1850s, Paine’s pamphlet presented to the American people a sound and well-reasoned argument for why separation from England made sense. Ideas that only months before were almost too extreme to discuss were now seen as the best alternative. The table was now set for the great debate to reach its inevitable conclusion.

The discussions were intense, but by late June enough progress had been made toward securing the votes that Congress formed a “Committee of Five” to draft a resolution declaring independence. This committee which included John Adams, Benjamin Franklin, Robert Livingston, Roger Sherman, and Thomas Jefferson wanted Adams to draft the document. However, Adams insisted that Jefferson do the writing with Adams editing it as needed.

On July 2, the Congress approved the Lee Resolution, introduced by Richard Henry Lee of Virginia, calling for independence from Great Britain. The Committee of Five promptly submitted its declaration document to Congress which they approved, after several modifications, on July 4. Thus, in the minds of the delegates, and soon in the eyes of the world, our nation was born.

The words contained in the Declaration of Independence were some of the most revolutionary ideas ever printed. When Congress approved the words, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are Life, Liberty, and the pursuit of Happiness,” they were going where no government had gone before.

The preamble further declared that “Governments are instituted among men, deriving their just powers from the consent of the governed.” Given that, in 1776, hereditary monarchies ruled all the nations of the earth, this too was a radical doctrine.

The Declaration of Independence also listed 27 grievances the King had committed against his subjects in America, essentially justifying our decision to separate from England.

These complaints ranged from “He has dissolved Representative Houses repeatedly” to “He has made Judges dependent on his will” to “He has kept among us, in times of peace, Standing Armies without the consent of our legislatures.” Taken together, they made a compelling case for leaving the British Empire.

Ultimately, the American colonists in 1776 were left with two choices. They could either completely submit to the authority of Parliament and the Crown, becoming vassals of England, or declare complete independence and thereby control their own destiny. Time has shown that they chose wisely.

So why should the background to the Declaration of Independence matter to us today? It is important to know that our Forefathers tried to reconcile with the mother country and that rebellion was not our preferred choice.

We also must recognize the intensity of the debate and the widely varying opinions regarding the proper course of action to take and understand that our Forefathers agonized over their decision.

Finally, we must appreciate that these words revolutionized the way that not only Americans but also the rest of the world viewed the role of government and the very concept of where the right to govern originates.

Tom Hand is creator and publisher of Americana Corner. Tom is a West Point graduate, and serves on the board of trustees for the American Battlefield Trust as well as the National Council for the National Park Foundation. Click Here to Like Tom’s Facebook Page, Americana Corner. Click Here to follow Tom’s Instagram Account.

Click here for American Exceptionalism Revealed 90-Day Study Schedule
Click here to receive our Daily 90-Day Study Essay emailed directly to your inbox

 

Guest Essayist: Andrew Langer


Prior to the drafting and ratification of the United States Constitution, our founders had nearly two hundred years of colonial governance from which to draw lessons regarding both the proper, and the improper, management of such territories, and the best way to add new lands to a governmental structure.

Among the threads that run through the Constitution, the assurance of fair and equal treatment of all citizens and the necessity of “due” process as a way to protect those citizens’ rights is repeated in a myriad of ways.

When it came to colonization and settlement, the founders could draw on the history of Great Britain’s management of the colonies (and, in many cases, their mismanagement) to ensure that the deficiencies in British governance could be corrected and their mistakes not repeated.

A central problem was consistency in the development of colonies and the application of British law. Colonial charters, the documentation actually allowing British subjects to establish colonies in North America, could be granted by the King (directly) or by the King’s officers, and they were granted to both corporate entities and groups of individuals.

But these charters could also be revoked, and most colonial charters were, at some point or another, revoked and reinstated by the Crown.

If Americans were going to settle the western portions of the recently-unionized states, they would have to be guaranteed, under the law, that the same kinds of arbitrary actions that plagued British colonial governance would not be continued by an American government.

Not all were even in agreement about such expansion (that became encompassed in the 19th century as the Monroe Doctrine. An Anti-federalist, writing under the name Brutus I in response to the Federalist papers written by James Madison, John Jay, and Alexander Hamilton under the pseudonym Publius, voiced deep concern about American empire building.

Jonathan Marshall, writing for Inquiry Magazine in 1980 (and republished in The Journal of Libertarian Studies) wrote:

“[T]he Antifederalist world view was profoundly shaped by their abhorrence of “empire”-that is to say, the rule of a vast territory by a strong, consolidated government. In rejecting the Federalist dream of a glorious American empire, they challenged the notion that the confederated states had to mimic European empires to safeguard their independence. Ultimately, the Antifederalists insisted, empire could be achieved only at the expense of their most cherished and hard-won prize: liberty.”

That skepticism is certainly shared when viewed in the context of another failure of British rule—the abandonment of the principle of “salutary neglect.” Discussed at length by one of the earliest historians of the American Revolution, Dr. David Ramsay (a revolutionary-era politician and physician), the concept is straightforward: the best way for a colony to prosper is for the parent nation to take a “light touch” in terms of direct governance, to let the colonists themselves make decisions and solve problems.

As the American colonies grew more powerful and determined to make decisions on their own, the British crown became more determined to bring them to heel. This only served to frustrate and anger the colonists, and eventually led them to declaring themselves free and independent states.

The Constitution addresses these concerns squarely—most clearly in Article IV, Section 3, more commonly known as the Admissions Clause.

The clause has two parts—the first, granting power to Congress to admit new states. The second, a restriction on that power, saying that Congress cannot create a new state by dividing the territory of an existing state or by joining two states together, without the consent of the legislatures of those states.

Both are essential to the practice of good governance. The people of the United States and potential states, i.e., territories know that there is one body with the power to admit states into the Union. It cannot be done or denied arbitrarily by a President, or the President’s bureaucratic functionary.

The second clause is almost more important than the first since it essentially prevents a state from being punished or the federal government otherwise abusing its powers by tearing apart states or forcing them to join with other states against their will. There has to be agreement from that state’s duly elected legislative representatives.

It is, essentially, another form of Due Process, protecting the rights of these citizens from arbitrary or capricious behavior on the part of the Federal Government.

Interestingly enough, though not outlined in the Constitution, the process for newly-settled lands to become states has largely been codified over time. Public lands are declared U.S. territory. Through a variety of means, the people in that territory vote to declare their intent to become a state, and then Congress passes an “enabling act” legislating that the territory becomes a state.

One aspect of this, for many of the states that entered after the middle of the 19th century, was to declare that all “unappropriated public lands” within those territories to be the property of the United States itself.  This was a way of “clearing title” to those lands for the purpose of encouraging further settlement (clear title, as the property rights scholars Hernando DeSoto and Richard Pipes have both written, is an essential element of strong protection of private property). It is also the reason why, as a percentage of a state’s territory, so much more land is owned by the federal government west of the Mississippi River (which has had huge implications for the balance of power between federal and state governments for the last half-century).

The British government had both successes and failures when it came to their management of the North American colonies. The authors of the Constitution learned from those mistakes and crafted clear language to safeguard against making them again.

Andrew Langer is President of the Institute for Liberty.

 

Click here for American Exceptionalism Revealed 90-Day Study Schedule
Click here to receive our Daily 90-Day Study Essay emailed directly to your inbox

Guest Essayist: Tom Hand


The Colony of Virginia was established at Jamestown by the Virginia Company in 1607 as a for-profit venture by its investors. To bring order to the province, Governor George Yeardley created a one-house or unicameral General Assembly on July 30, 1619.

This body of men was comprised of an appointed Governor and six Councilors, as well as 22 men called burgesses (a burgess was a freeman of a borough in England). Most importantly, the burgesses were elected by the eligible voters (free white males) in the colony, thus making this General Assembly the first elected representative legislature in British America.

In 1642, Governor William Berkeley split the legislature into two houses initiating a bicameral assembly, with the elected representatives in the newly created House of Burgesses and the appointed Councilors of State meeting separately.

It was here, the leading men of Virginia met and debated the great issues of the day. Until the 1760s, this legislative body largely determined how the colony would be governed, including how its citizens would be taxed.

This began to change in 1765 when Parliament passed the Stamp Act which imposed a tax on paper products such as newspapers, pamphlets, and legal documents. Importantly, it represented the first time Parliament placed a direct tax on the colonies in North America.

This revenue grab did not go over well with the colonists who were used to controlling their own internal affairs. The debates and the documents that flowed from the House of Burgesses after that act spearheaded our nation’s drive for independence from England.

On May 29, 1765, Patrick Henry introduced a series of resolutions known as the Virginia Resolves. These declarations essentially denied Parliament’s right to tax the colonies since the citizens in America did not have representation in England.

By late June, many newspapers throughout the colonies had printed these resolutions which inflamed the passions of people. The “no taxation without representation” sentiments led to the Stamp Act Congress of 1765, marking the first time the colonies joined forces against the Mother Country.

The years passed and the relationship with England continued to deteriorate as the Mother Country introduced more burdensome legislation. In 1774, after Parliament passed the Boston Port Act which closed the port of Boston, the House of Burgesses again voiced their opposition in a series of resolves. The result was that Governor Lord Dunmore dissolved the assembly.

However, the Burgesses would not be denied their right to assemble and immediately convened in a public house called the Raleigh Tavern. Here, they called for a series of five Virginia Conventions to meet in defiance of the governor.

It was at the Second Virginia Convention on March 23, 1775, that Patrick Henry gave his most famous speech by concluding, “Is life so dear, or peace so sweet, as to be purchased at the price of chains and slavery? Forbid it, God Almighty! I know not what course others may take, but as for me, give me liberty or give me death.”

In addition to Patrick Henry (Burgess from 1765-1776), the men who passed through the House of Burgesses was a group that had an outsized influence in the founding of our great nation. Its alumni list is a “Who’s Who” of Founding Fathers:

George Mason (Burgess from 1758-1760) who wrote the Fairfax Resolves in 1774 which denied Parliament’s authority over the colonies, and in 1776 formulated Virginia’s Declaration of Rights, a precursor to our Declaration of Independence and Bill of Rights.

Thomas Jefferson (Burgess from 1769-1774) whose 1774 paper A Summary View of the Rights of British America clearly expressed our grievances against King George and, of course, he authored our landmark Declaration of Independence in 1776.

George Washington (Burgess from 1758 to 1775) who commanded our Continental Army in the American Revolution, was our first President, and became the Father of our Country.

With the advent of the new Virginia Constitution in 1776, the House of Burgesses was finally dissolved. In its place, the new state government formed an elected Senate and an elected House of Delegates, which continues to govern the Old Dominion today. In 1780, Virginia moved its capital to Richmond, ending Williamsburg’s long run as the center of politics in America.

Sadly, the unity of these deeply patriotic men ended within a few years of achieving our independence in 1783. Defeating the British had been a cause on which all the former Burgesses could agree. With that task accomplished, they began to splinter over how to run the United States.

The Articles of Confederation under which the country operated provided a weak central government and allowed the states a great deal of autonomy. This system did not vest any taxation authority in the central government or allow for a federal standing army or navy. Many worried our new nation could not survive without a stronger federal authority.

Consequently, leaders organized a convention for the fall of 1787 to meet in Philadelphia to address issues with the Articles. Known at the time as the Philadelphia Convention but to posterity as the Constitutional Convention, the delegates did more than fix the Articles; they designed our new Constitution.

Former Burgesses like George Washington who saw the need for a strong central government were called Federalists. They argued that without this change the nation would be virtually defenseless in the face of foreign aggression. Additionally, the numerous currencies and laws of the thirteen states would tend to destabilize the nation, possibly leading to its dissolution.

Those former Burgesses that opposed the new Constitution, Anti-federalists like Patrick Henry and Thomas Jefferson, worried that creating a powerful central authority would simply replace the tyranny of the king with a different tyrant. These men preferred local control and felt states should be governed as each one saw fit.

By 1796, a mere thirteen years after the signing of the Treaty of Paris, the nation had divided into two deeply antagonistic political parties. These men, once so unified in thought and action when they were fighting for our freedom, were never able to bridge the divide regarding the proper direction for America after that freedom had been secured.

So why should the history of the House of Burgesses matter to us today?

In its day, many of the men who assembled there later assembled on the national stage to lead our country. Throughout the crisis with England, it was an eloquent and vocal proponent for American liberty and many of the ideas found in our Declaration of Independence and Constitution were first debated and refined in their meetings.

Tom Hand is creator and publisher of Americana Corner. Tom is a West Point graduate, and serves on the board of trustees for the American Battlefield Trust as well as the National Council for the National Park Foundation. Click Here to Like Tom’s Facebook Page, Americana Corner. Click Here to follow Tom’s Instagram Account.

Click here for American Exceptionalism Revealed 90-Day Study Schedule
Click here to receive our Daily 90-Day Study Essay emailed directly to your inbox

 

 

 

 

Guest Essayist: Tom Hand


When the English began to settle North America in the 1600s, the leaders of the various colonies had different motives. While all colonies exercised their authority in the King’s name, they were not created in the same mold, and some had more autonomy than others. In fact, there were three different types of colonies: royal, self-governing, and proprietary.

Royal colonies were owned and completely administered by the Crown. The Governor and his Council were appointed by the King and these lands existed simply to generate wealth for England. Although few land grants began as a royal colony, by the American Revolution, eight of the thirteen colonies were this type: Virginia (converted in 1624), New Hampshire (1679), New York (1685), Massachusetts (1691), New Jersey (1702), South Carolina (1719), North Carolina (1729), and Georgia (1753).

Self-governing colonies were formed when the King granted a charter to a joint-stock company which set up its own independent governing system. These organizations were essentially corporations formed to make money for the investors.

Like the entrepreneurs of today, a few men came up with an idea, presented it to their friends and associates, and asked them to invest in their plan. Their organizations had wide latitude to appoint leaders and run their business as they wished. Virginia, Massachusetts Bay, Connecticut, and Rhode Island were all initially established as self-governing colonies.

However, these colonies soon found out that their independence was on a short leash. If the colony was poorly administered like in Virginia or if the people proved troublesome like in Massachusetts, these dominions were converted into a royal colony with all the restrictions that came with it. By the time of the American Revolution, only Rhode Island and Connecticut, retained their original self-governing charter. The King always had the final say.

Proprietary colonies were land grants given by the King to one or a few favored men called proprietors. They in turn were to administer these areas for the Crown but in a manner to be determined by them. The proprietors appointed the Governor and his Council, determined the laws (but they had to be approved by the Crown), and ran the territory as they saw fit. While the King had the ultimate authority, the rule of the proprietors resembled that of a monarch.

Maryland was an example of a proprietary colony. It was established by Cecil Calvert in 1632 upon receiving a land grant from King Charles I. Lord Calvert, also known as the 2nd Baron Baltimore, wanted to develop a land where Catholics could openly profess their faith without fear of retribution.

After several starts and stops, settlers for this new colony finally arrived in 1634. The colony prospered and in 1649 Maryland passed the Maryland Toleration Act, the first law establishing religious tolerance in British North America. Although Lord Calvert never visited Maryland, the Calvert family managed the province well and never had their charter revoked.

Not surprisingly, these proprietary colonies which operated without a great deal of input from England, were not as anxious to sever ties with the Mother Country as those with more stringent controls. For example, the Pennsylvania Assembly had to replace five of its initial nine delegates to the Second Continental Congress to get a majority of delegates to be in favor of independence.

Delaware, which was another proprietary colony, had to send an extra delegate, Caesar Rodney, on a midnight 80-mile ride to Philadelphia to break the tie in their delegation so the state could vote for independence. By the time of the American Revolution, only Delaware, Maryland and Pennsylvania remained as proprietary colonies, none of which were hot beds of rebellion.

WHY IT MATTERS: So why should the way in which colonies were organized and governed matter to us today?

The three types of colonies with their different systems of government generated varying attitudes towards English rule and our independence. Understanding these conflicting feelings helps us to better appreciate why not all Americans wanted to break from the Mother Country.

What we see is that those colonies left to govern themselves were fairly content living under English rule and not as anxious to break from England. In retrospect, England may have been wiser to allow all the colonies to operate with more autonomy and to manage them in a less oppressive manner.

SUGGESTED READING: If you are interested in a deeper dive into this subject, Colonial America: A History to 1763 is an excellent book on background, founding, and development of the thirteen British North American colonies. It was written by Richard Middleton and Anne Lombard and originally published in 1992, but it was updated in 2011.

PLACES TO VISIT: The statehouse in Annapolis, Maryland, is an incredibly beautiful building and a great example of architecture from our colonial era. It is the oldest state capitol in continuous legislative use and is the only statehouse ever used as the nation’s capitol. Seeing it and the rest of this historically significant seaside city would be well worth your time.

Until next time, may your motto be “Ducit Amor Patriae,” Love of country leads me.

Tom Hand is creator and publisher of Americana Corner. Tom is a West Point graduate, and serves on the board of trustees for the American Battlefield Trust as well as the National Council for the National Park Foundation. Click Here to Like Tom’s Facebook Page, Americana Corner. Click Here to follow Tom’s Instagram Account.

 

Click here for American Exceptionalism Revealed 90-Day Study Schedule
Click here to receive our Daily 90-Day Study Essay emailed directly to your inbox

Guest Essayist: Adam Carrington


In the Gospel of Matthew, Jesus says, “Everyone then who hears these words of mine and does them will be like a wise man who built his house on the rock.” He contrasts these persons with him who “hears these words of mine and does not do them.” This latter man built his house “on the sand.” When rain and storms come, the first house stands firm while the second, not only falls, “but great was the fall of it.”

Americans must ask upon what kind of foundation they built their political house. What first principles created us, define us, and thus should continue to guide us going forward? Some have posited that our rightful foundation rests on a literal rock—Plymouth Rock. By saying so, they mean that the Puritans who came to New England in 1620 defined our Founding and should prescribe our tomorrow.

These persons point to the Mayflower Compact, the charter those settlers signed as the basis for their political community. This document clearly displays the political ends which these Puritans pursued and the means they established in that pursuit. We must declare them and then assess them. We thereby must ask whether this foundation of Plymouth Rock in 1620 is in fact our own as Americans in 2022.

The Compact says that it seeks to “plant” a colony. More importantly, it states what it intends to do in establishing that political community. It first lists “the Glory of God.” It follows with the “advancement of the Christian Faith,” then the “honour of our King and Country,” and, finally, their “better ordering and preservation.” Together, these make up the ends of their political community.

We must see in the first purpose the overarching one, the final end to which all others in the Compact strive. The Puritans were defined by a faith that placed God’s glory the highest in priority and all-comprehensive in its pursuit. Thus, they must advance the Christian faith, increasing who glorified God. Their honoring king and country also assumed a religious element, since they saw King James as a Christian prince and England as a Christian nation. Their honor was a mere reflection of God’s glory. Even good ordering and preservation linked back to God’s glory, since the Compact says they will so do in “furtherance of the ends aforesaid.”

Clearly, the foundation laid on Plymouth Rock required a particular kind of religious subscription by all citizens and officers in the colony. To be a rightful citizen, one must be a rightful believer. Did Americans who wrote the Declaration of Independence and ratified the United States Constitution build on this foundation or on another?

The Founders did not deny the importance of God in general or the Christian faith in particular. The Declaration of Independence mentions God no less than four times. God authors the laws of nature. He is the Creator who “endows” human beings with equal rights. The Declaration also calls God the “Supreme Judge of the world,” to whom they make the ultimate appeal for the justice of their revolution. Finally, the document concludes by a “firm reliance on the protection of divine Providence.”

But the Founder’s God took a different approach to religious practice than did the one whose glory the Puritans pursued. The Puritans demanded as a political act of citizenship on earth uniform practice aligned with citizenship in Heaven. In other words, religious liberty as we understand they rejected as hostile to the proper ends of good government.

Our Constitution, while not contradicting the Declaration, made sure that religious liberty helped define the political implications of God. The Constitution denied all religious tests for holding national office. Its First Amendment rejected the establishment of a national church as well as protecting the free exercise of religion for all. The purpose of human life might be to glorify God. But our politics would leave wide sway for persons to come to that conclusion on their own. Our laws would let persons who so decided additional liberty to consider how exactly to glorify God. Our laws would not enforce the advancement of Christianity. But we would permit its spread and protect the right of its adherents to share, to persuade throughout the land. We must also say, then, that it protected the right of conscience for even those who rejected this view of God or the existence of God altogether.

Thus, we understand that our foundation owes some influence to Plymouth Rock. Yet we cannot call it our perfect and complete foundation. We did not follow its ends in the exact same way. Instead, the Mayflower Compact influenced the Founding even more in the additional means it posited to run its political community. To achieve their ends, they wrote they would “Covenant and Combine ourselves together in a Civil Body Politic.” They founded a political regime on the basis of consent, of the willing agreement of their citizens. No outside tyrant imposed their ends upon them. In the same way, our Constitution opens that “We, the People,” did “ordain and establish” the Constitution for the purposes written therein.

Moreover, they said this new political community would, “constitute and frame…just and equal Laws, Ordinances, Acts, Constitutions and Offices.” They committed themselves to the rule of law, not the fiat of human beings. These Puritans also declared that rightful laws should contain two qualities: justice and equality. They must pursue the good and do so equally for all. Our Founding agreed. The Constitution’s Preamble gives one of its purposes as “to establish justice.” The Declaration’s commitment to equality informs so much of the Constitution, but especially the Fourteenth Amendment’s equal protection clause, which says that no state shall deny any person the equal protection of the laws.

Thus, we see ourselves on a different foundation than that laid on Plymouth Rock. Ours did not deny God but recognized Him as one of political and religious liberty. At the same time, we took much in the means from Plymouth, especially consent of the governed and just as well as equal laws. Was this foundation on a true rock or did we build a sandy foundation doomed to a great fall? We find the answer in the experience of the last 250 years. America endured. More than endured, it thrived. It rose to become a beacon of human equality and liberty, the “last, best hope” as Abraham Lincoln once called it. Its true foundation rested on those commitments—human equality and liberty—as understood through the laws of nature and of nature’s God. Those principles still hold out the promise of provision, provision of a strong foundation against all storms, internal or external. It does; but only if we continue to build wisely and faithfully upon it.

Adam M. Carrington is an Associate Professor of Politics at Hillsdale College. There, he teaches on matters of Constitutional law, American political institutions, and separation of powers. His writing has appeared in such popular forums as The Wall Street Journal, The Hill, National Review, and Washington Examiner. His book on the jurisprudence of Justice Stephen Field was published in 2017 by Lexington. Carrington received his B.A. from Ashland University and his M.A. and Ph.D. from Baylor University. He lives in Hillsdale with his wife and their two daughters.

Click here for American Exceptionalism Revealed 90-Day Study Schedule
Click here to receive our Daily 90-Day Study Essay emailed directly to your inbox

 

 

Guest Essayist: Tony Williams


Throughout U.S. history, Americans have appealed to the idea that the country is a “city upon a hill” and exceptional in its natural rights republican principles and constitutional government. These ideas were present at the time of the American founding as the founders had a sense of destiny and an understanding of the unique historic moment.

The concept of a “city upon a hill” originated with Massachusetts Bay Colony Governor John Winthrop’s “Model of Christian Charity” sermon aboard the Arbella. He described the purpose of establishing a godly society to work towards the common good, just government, and civic virtue. Winthrop’s thinking about a “city upon a hill” was influenced by covenant theology: “We must consider that we shall be as a city upon a hill, the eyes of all people are upon us; so that if we shall deal falsely with our God in this work we have undertaken and so cause him to withdraw his present help from us, we shall be made a story and a by-word through the world.” The same ideals about a religious and civil covenant with God and each other were present in the Pilgrims’ “Mayflower Compact.”

Pilgrim and Puritan thinking about a “city upon a hill” focused on establishing a pure church that was free of the perceived corruptions of the Anglican Church as well as creating a civil commonwealth on biblical principles. While they were very specific to colonial Massachusetts, they influenced the founders’ purpose to create a republic based upon natural rights and liberties. American exceptionalism thus enlarged to a national vision at the time of the founding.

After the Constitutional Convention, a vibrant political debate centered on the proposed Constitution and addressed larger political principles upon which the American republican regime was to be built. This deliberation took place in newspaper essays, pamphlets, state ratifying conventions, and in public spaces such as taverns. It was one of the greatest debates about human nature, political principles, and government the world has seen.

The debate revealed significant differences of political philosophy among American statesman as noted by numerous historians and political scientists. While the Federalists, who supported the new Constitution, and Anti-federalists, who opposed it, acknowledged that the Articles of Confederation had deficiencies that needed to be remedied, they differed significantly on the character of the changes that were needed.

The Federalists wanted a more energetic government than had existed under the Articles of Confederation because they believed it would promote better governance and thereby protect liberty. Of particular note, they argued for a stronger executive and independent judiciary under the principles of separation of powers and national supremacy.

On the other hand, the Anti-federalists admitted that the national government needed greater powers to regulate trade and to tax, but they were deeply concerned about a powerful executive, a corrupt Senate, and an imperial judiciary or perhaps a cabal of those branches acting tyrannically against the liberties of the people and the powers of the states.

This great deliberative moment during the American founding belies the fact that the opposing sides of the debate shared several fundamental republican tenets in common. They believed in popular sovereignty and representative government, limited government, federalism, separation of powers, the liberties of the people, and other essential constitutional principles even if they differed over the best means to achieve them in the framing of the constitutional order.

The Federalists and Anti-federalists also shared common roots in their thinking about government and human nature. They were influenced by ancient history and philosophy, Enlightenment ideas, the English tradition and colonial experience, and Protestant Christianity. Their Protestantism contributed to their thinking about resistance to tyranny, religious and civil liberty, and American exceptionalism.

The Federalist has several references to American exceptionalism. Most notably, in Federalist #1, Alexander Hamilton famously stated, “it seems to have been reserved to the people of this country to decide, by their conduct and example, the important question, whether societies of men are really capable or not, of establishing good government from reflection and choice, or whether they are forever destined to depend, for their political constitutions, on accident and force.” The American opportunity to discuss those principles of government by “reflection and choice” was not merely a coincidence. Many of the founding generation thought it a sign of divine providence in their creation of a virtuous constitutional republic.

James Madison demonstrated this belief more directly in Federalist #37, when he wrote, “It is impossible for the man of pious reflection not to perceive in it a finger of that Almighty hand which has been so frequently & signally extended to our relief in the critical stages of the revolution.” Similar words were written by George Washington and others reflecting on the unlikely victory of the American Revolution and the founding.

The Anti-federalists were also pious Christians whose religious views shaped their understanding of the republican experiment in America. Brutus (widely assumed to be New Yorker Robert Yates) wrote his first essay about the danger of a large republic and struck a chord of Puritan covenant theology. Much like John Winthrop’s “City Upon a Hill,” Brutus wrote that if Americans were faithful and built a virtuous republic, they would be blessed. “[If] you will lay a lasting foundation of happiness for millions yet unborn; generations to come will rise up and call you blessed.” If they established a despotism or tyranny that destroyed liberty, they would be punished and, “posterity will execrate your memory.”

President Washington used the occasion of his First Inaugural Address to advance the republican principles of free government and free society in the new nation. He stated, “The preservation of the sacred fire of liberty, and the destiny of the Republican model of Government, are justly considered as deeply, perhaps as finally staked, on the experiment entrusted to the hands of the American people.” This assertion of American exceptionalism made the American experiment in liberty a sacred obligation not only for the destiny of America but as a model of republican government for the world.

Abraham Lincoln would echo these dutiful sentiments at Gettysburg when he said, “that this nation, under God, shall have a new birth of freedom –and that government of the people, by the people, for the people, shall not perish from the earth.”

Tony Williams is a Senior Fellow at the Bill of Rights Institute and is the author of six books including Washington and Hamilton: The Alliance that Forged America, with Stephen Knott. Williams is currently writing a book on the Declaration of Independence.

 

Click here for American Exceptionalism Revealed 90-Day Study Schedule
Click here to receive our Daily 90-Day Study Essay emailed directly to your inbox

Guest Essayist: Joerg Knipprath


During the Middle Ages, a distinct separation of church and state existed, at least in theory. The pope in Rome and his bishops and priests throughout Western Christendom took care to protect the souls of the people. The emperors, kings, and other secular nobles protected the physical safety of their subjects. The subjects would “repay to Caesar what belongs to Caesar and to God what belongs to God.”

In fact, matters were more ambiguous, because popes frequently called on secular rulers for protection, and the latter looked to the former to confirm the legitimacy of their rule in the eyes of God and their subjects. Moreover, the ecclesiastical rulers, including the pope, also exercised sovereign political control in various territories and sat in the political councils of others. The emperors and other nobles, in turn, frequently sought to control the appointment of ecclesiastical officials within their domains and, in the case of the king of France, to control the selection of the pope himself.

With the split in Western Christendom caused by the Reformation, and the emerging concentration of power in single political rulers in national kingdoms and lesser principalities, two significant changes occurred from the medieval order. Those changes are important for understanding what led to the Mayflower Compact.

First, in the struggle over who had supreme authority in the physical world, emperors or popes, kings or bishops, the balance shifted decisively in favor of the secular rulers. A secular ruler might become the head of a religious establishment, as happened in England beginning with Henry VIII. Less drastically, the ruler might ally with the bishops to control the authority of the pope in matters temporal or secular, as happened to the Church in France. Or, under the doctrine of cuius regio, eius religio (“whose realm, their religion”), the religion practiced by the prince became that of his subjects. The last was the situation in most German states after the Peace of Augsburg in 1555 ended the initial wave of religious wars between Lutherans and Catholics.

The second change was the renunciation among a number of Protestant dissenters of the episcopal structure of the Catholic, Anglican, and Lutheran churches. Whatever might have been the dissatisfaction of Anglican and Lutheran theologians with Catholic doctrine, practices, and administration, the dissenters viewed those established Protestants as merely paler imitations of the Church of Rome. Building on the teachings of the lawyer John Calvin in Geneva, they emphasized salvation through faith alone and living in a community of the faithful governed by themselves or by some elected elders.

In Scotland, these dissenters formed the Presbyterian Church. In England, the Calvinist dissenters became the “Puritans.” They sought to purify the Church of England from various Catholic practices and doctrines while continuing to associate their congregations with the official church. Their goals seemed within reach after the English Civil Wars in the 1640s. They were well represented in the Rump Parliament and among the military leaders, such as Oliver Cromwell and John Lambert. The Anglican majority proved too immovable, however, and, after the Restoration, many Puritan leaders left England. Another group, however, believed that the Anglican Church was hopelessly corrupt, and that the only available path to personal salvation was through separation. This group has become known as the “Pilgrim Fathers,” although they referred to themselves by other names, such as “Saints.”

Both groups of English dissenters established settlements in New England not far apart. Their theological differences, however, kept them separated for decades. Not until 1690 was the Pilgrims’ Plymouth colony absorbed by the much larger Massachusetts Bay Colony.

The two groups shared certain characteristics, which contributed to the development of American constitutional theory. It is part of American mythology that Europeans came to English North America in search of religious freedom, which they joyfully and readily extended to all who joined them. The matter is much more nuanced. While such toleration might well describe the Quaker colony of Pennsylvania and the Catholic colony of Maryland, both of which were formed later, the Pilgrims and Puritans had a different goal. Theirs was to establish their respective visions of a Christian commonwealth, the City of God in the New World. Having left England for a wilderness because of despair over the allegedly corrupt nature of the Anglican Church, never mind the Catholic one, neither group was inclined now to welcome adherents of such beliefs to live among them. Religious freedom, indeed, but for individuals of like beliefs in a community gathered together for mutual assistance in living life according to those beliefs. Conformity in community, not diversity of doctrine, was the goal. God’s revealed law controlled, and governance was put in the hands of those who could be trusted to govern in accordance with that law.

The two groups also shared another characteristic, alluded to above: voluntary community. The individual alone could find salvation through studying and following the Bible. As an inherently social creature, he could, of course, join with others in a community of believers. The basis of that community would be consent, individual will, not an ecclesiastical order based on apostolic succession. Some years after arriving in the New World, the Massachusetts Bay Puritans in the Cambridge Platform of 1648 declared that “a company of professed believers ecclesiastically confederate” is a church, with or without officers. This was the origin of the Congregational Church, founded on a clear separation from all forms of hierarchical church government.

The congregation would govern itself according to the dictates of its members’ consciences and the word of God, while in the secular realm it would be governed under man’s law. What would happen, if man’s law, and the teachings of the established church, conflicted with the word of God, as the believers understood it? What if, to resolve such conflicts, that religious community left the existing secular realm? A political commonwealth of some sort is inevitable, as most political theorists claim. That is where the experience of the Puritans and the Pilgrim separatists differed.

The Puritans formed their Massachusetts Bay Colony on the same basis as the Virginia Company had been formed to settle at Jamestown two decades earlier. It was a joint stock company, somewhat analogous to a modern business corporation, formed by investors in England. The company’s charter provided a plan of government, which included meetings of a General Court composed of the freemen of the Company. The charter failed to specify where these meetings were to occur. English custom was that such shareholder meetings took place where the charter was kept. Some historians have written that the charter was surreptitiously taken from the company’s offices and spirited to the New World, thereby making Boston the site of the General Court. That is a suitably romantic story of intrigue and adventure, indeed. More prosaic is that the change in locale occurred through the Cambridge Agreement of 1629 between the Company’s majority, composed of its members seeking to establish a religious community in Massachusetts, and the minority which was interested in the possibilities of commerce and profit. The majority was permitted to take the charter and thereby secure a de facto independence from English authorities for a half-century. The minority received certain trade monopolies with the colony.

The formation of the Massachusetts Bay Colony, like the Virginia Colony’s, was based on voluntary association and contract. Once the mercantile interest of the English investors was severed, the charter provided a political constitution for the colony’s governance. But the political consequence was the by-product of a commercial enterprise. The best example of an organic constitution created by consent of a community’s members for the express purpose of self-government was the Mayflower Compact concluded almost ten years earlier.

After vigorous attempts at suppression of them by King James I for their separatist beliefs, many Pilgrims fled to the religiously more tolerant United Provinces of the Netherlands. Eventually, however, English pressure on the Dutch induced the Pilgrims to leave their temporary domicile in Leyden. Having procured a ship and picked up additional travelers in England and a license from the Virginia Company to settle on its land, a group of Pilgrims embarked on their journey westward to their future Zion.

Upon reaching the New World in late November, 1620, at what today is Provincetown, Massachusetts, they discovered to their dismay that they had arrived a few hundred miles north of the Virginia Company’s boundary. Many of the 101 passengers aboard their small ship, the Mayflower, were ill, supplies were dwindling, and bad weather loomed. The group eventually decided to land on the inhospitable coast, rather than continue to sail to their allotted land. Before they did so, however, 41 men signed the Mayflower Compact on November 21, 1620, under the new calendar. It must be noted that fewer than half of the men were Pilgrims. Many were “adventurers,” a term of art which referred to individuals sent over by the Company of Merchant Adventurers to assist the colony, tradesmen and men such as the military leader, Myles Standish. The Company had lent money to the settlers. Repayment of those loans depended on the colony’s success.

Not having the luxury of a drawn-out convention meeting under agreeable conditions, the settlers made the Mayflower Compact brief and to the point, but also rudimentary. In significant part, it declared, “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 ….” Framing “just and equal laws, ordinances, acts, constitutions, and officers, … as shall be thought most meet and convenient for the general good of the colony …,” was left to another day.

The Mayflower Compact is a political application of the voluntary consent basis of religious congregation which the Pilgrims accepted. There was renewed interest in social contract theory as the ethical basis of the state, as an alternative to the medieval theory of a hierarchical political order created by God. Both approaches, it must be noted, were also used by defenders of royal absolutism in the 17th century. Bishop Robert Filmer in his Patriarcha adapted Aristotle’s connection between the family and the state as social institutions and Cicero’s correlation of monarchy and the Roman paterfamilias, to present the monarch as having whatever power he deems needed to promote the public welfare. To give his contention a more appealing, religious basis, Filmer wrote that God gave Adam absolute control over the family in Genesis, thereafter to the three sons of Noah, and finally, as the nations grew, to monarchs.

Thomas Hobbes used contract theory in his work Leviathan to justify royal absolutism. Humans seeks to escape the abysmal state of nature, where life is “solitary, poor, nasty, brutish, and short,” because a state of war exists of all against all. To gain physical and psychological peace, the desperate people enter into a covenant with a powerful ruler. In return for the ruler’s protection and a life of security, they agree to surrender whatever rights they may have had in the state of nature as the ruler deems it necessary. One exception is the right to life.

One might view the Mayflower Compact as an iteration of the Hobbesian covenant. Indeed, the early governance of the colony at times seemed like a military regime, an understandable state of affairs considering the existential danger in which the residents found themselves over the first few years. Alternatively, one might consider the arrangement as simply a settlement within the existing English state, like any town in England. After all, the Pilgrims expressly avowed themselves to be “the loyal subjects of our dread sovereign Lord, King James,” declared that their voyage, in part, was for the “honour of our King and country,” and noted that they were signing during “the reign of our sovereign Lord, King James.”

One might, however, view the Mayflower Compact as a glimpse into the future, to the work of the social contract theorist John Locke a half-century later. The Pilgrims had removed themselves from an existing commonwealth whose laws they found oppressive. Their persecution over their religious faith was a profound breach of the Lockean social contract under which government was created as a useful tool better to protect a person’s personal security and estate. One remedy for such a breach was to leave political society. For Hobbes, this would have been impossible, because it would have placed the individual back in the intolerable state of nature. For Locke, however, the state of nature of human society was not as forbidding. Locke had more of that Whig confidence in man’s goodness. Government was just a way to deal with various inefficiencies of the state of nature in promoting human flourishing, rather than a Hobbesian precondition to such flourishing.

Solitary contemplation and Bible study allowed one to recognize the glory of God and to deepen one’s Christian faith, a journey made more joyful by joining a religious congregation of believers. In similar manner, joining together in a “civil body politick” as set forth in the Mayflower Compact aided in achieving those objectives. Dealing efficiently with quotidian matters of the physical world permitted more contemplation of the spiritual. Happily also, despite all the challenges the New World presented, it had sufficient bounty to give sustenance to the saints in the new Zion, to “lead the New Testament life, yet make a living,” as the historian Samuel Eliot Morison summarized it.

The singular importance of the Mayflower Compact was in the foundation it provided for a theory of organic generation of a government legitimized by the consent of the governed. Self-government became realized through a contract among and for those to be governed. Later American constitutional theories about the people as the source of legitimacy for government had to deal with the practical difficulty of having many thousands of people in each of the already existing political arrangements called “states.” American writers sought to get around that difficulty by having state conventions rather than ordinary legislatures approve the Constitution, a logically rather precarious substitution. Still, the Mayflower Compact set a readily understood paradigm.

A more troubling lesson drawn from the New England colonies, is to recognize the unsettling connection between seeking religious freedom for oneself and prohibiting the same for others. It requires confronting the tension between community and individuality, law and liberty. The right to associate must include the right not to associate. The right to worship in association with other believers must include the right to reject non-believers. To what extent might the rights of the majority to create their “civil body politick” as an embodiment of their City of God on Earth override the rights of others in that community to seek a different religious objective, or no religious objective at all? Massachusetts Bay provided one answer. New settlers were limited to those who belonged to their approved strain of Puritanism. Dissenters were expelled. Those who failed to get the message of conformity were subject to punishment, such as four Quakers who were publicly executed in 1659 after they repeatedly entered the colony and challenged the ruling authorities. The Pilgrims at Plymouth were more accommodating to others, if grudgingly so, because their original settlers had included a substantial number unaffiliated with their iteration of Christianity.

The framers of American constitutions had to face those issues, and tried to balance these interests through concepts such as free exercise of religion, establishment of religion, and secular government. The problem is that such terms are shapeshifters which allow users to project diverse meanings onto them. These difficulties have not disappeared.

Both the organic creative aspect of the Mayflower Compact and its theocratic imperative were found in other constitutional arrangements in New England. 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 ….” As in Massachusetts Bay, justice was to be administered according to the laws established by the new government, “and for want thereof according to the rule of the word of God.” The Governor must “be always a member of some approved congregation.”

The colonies of Providence and Portsmouth in today’s Rhode Island, established in the 1630s, had similar founding charters as the Mayflower Compact, because they, too, were formed in the wilderness. A distinctive aspect of those colonies was that they were founded by Puritan dissenters, Roger Williams and Anne Hutchinson, respectively, who had been expelled from Massachusetts Bay. Shaped by their founders’ experiences, these colonies allowed freedom of conscience and did not establish an official religion in the manner of other New England settlements.

Joerg W. Knipprath is an expert on constitutional law, and member of the Southwestern Law School faculty. Professor Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. He has also spoken on business law and contemporary constitutional issues before professional and community forums, and serves as a Constituting America Fellow.

Click here for American Exceptionalism Revealed 90-Day Study Schedule
Click here to receive our Daily 90-Day Study Essay emailed directly to your inbox